State (McCann) v Wine

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: GRIFFIN J.
• Judgment Date: 01 January 1981
• Neutral Citation: 1980 WJSC-SC 1245
• Docket Number: (96-1978),(S.C. No. 96 of 1978)
• Date: 01 January 1981

1980 WJSC-SC 1245

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

Kenny J.

(96-1978)

State (McCANN) v. WINE

THE STATE (AT THE PROSECUTION OF BRENDANMcCANN)

Prosecutor/

Respondent

and

DISTRICT JUSTICE HUBERT C. WINE

Respondent/

Appellant

1 JUDGMENT delivered on the 9th day of May 1980by GRIFFIN J. [nem. Diss]

2 On the 27th of October, 1976 Brendan McCann ("the Defendant") appeared at Rathfarnham District Court on foot of summonses served on him charging him with certain offences arising out of a motor accident which took place on the road leading from Tallaght to Templeogue in the County of Dublin on the 6th of April, 1976. These charges included one of careless driving, one of dangerous driving causing death, one of driving whilst under the influence of intoxicating liquor, and one of driving whileunder the influence of a drug. At the hearing in Rathfarnham District Court the Defendant was represented by solicitor and counsel, and Inspector McMunn appeared on behalf of the Director of PublicProsecutions.

3 The summons in respect of the careless driving offence was obviously drafted having regard to the unamended provisions of section 52 of the Road Traffic Act, 1961, as it alleged both driving without due care and attention and driving without reasonable consideration. As amended by section 50 of the Road Traffic Act, 1968, careless driving under section 52 of the 1961 Act is confined to driving without due care and attention, and driving without reasonable consideration is a separate offence under section 51A of the 1961 Act as inserted by section 49 of the 1968 Act. Section 53 of the 1961 Act (the dangerous driving section) was amended by section 51 of the 1968 Act, and the summons in respect of dangerous driving causing death had also apparently been drafted having regard to the provisions of section 53 asunamended.

4 When these summonses were called, the Inspector applied to the District Justice for an amendment in respect of both the summons for careless driving and dangerous driving causing death, the amendment in each case being the appropriate one having regard to the amendments of sections 52 and 53 of the 1961 Act made by the 1968 Act. Mr. Haugh, who appeared for the Defendant, had no objection to the amendments, which were duly-made by the District Justice. What next happened is in dispute. The recollection of Mr. Daly, the Defendant's solicitor, is that Mr. Haugh on behalf of the Defendant admitted the offence of careless driving, and the Inspector then applied for an adjournment of all the summonses before the Court and applied for an extension of time for service of a book of evidence in respect of the indictable offence of dangerous driving causing death. The recollection of the Inspector is that he applied for an extension of time to enable the book of evidence to be prepared and applied for an adjournment of all summonses before the Court for one month, and that it was thenthat Mr. Haugh stated that the Defendant was admitting the offence of careless driving. Understandably, the District Justice cannot recollect with absolute accuracy the sequence of events which occurred after he made the order for amendment of the summonses, but it seems to me that, on the facts of this case, the order in which these events took place isirrelevant.

5 In the District Court, Mr. Haugh submitted that under Rule 64(1) of the District Court Rules 1948 the plea of guilty to the charge of careless driving must be accepted and that the charge of dangerous driving causing death should be struck out, and he relied on the AttorneyGeneral (Ward) v. Thornton, 1964 I.R. 458, 486 as authority for that proposition. The District Justice adjourned all summonses to the 15th of November, 1976, and on that date the Director of Public Prosecutions was represented by Mr. Matthews, solicitor, who informed the District Justice that his instructions were to offer no evidence in relation to the offence of careless driving, and he applied to have the summons in respect of thatoffence struck out. After legal argument the District Justice further adjourned the matter to the 23rd of November, 1976. On that date he delivered judgment, distinguishing the instant case from Thornton's case, and made an order striking out the summons for careless driving and he extended the time for delivery of a book of evidence in respect of the charge of dangerous driving causingdeath.

6 On the 2lst of March, 1977, the Defendant applied for and obtained from Mr. Justice Doyle in the High Court a conditional order of Certiorari, directing the District Justice to send before the...