The Director of Public Prosecutions v Gordon

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Brian Murray
• Judgment Date: 11 July 2024
• Neutral Citation: [2024] IESC 29
• Docket Number: S:AP:IE:2023:000103

Between/

The Director of Public Prosecutions (At the Suit of Sergeant Cian P. M. O'Brien)

Appellant/Prosecutor

and

Simon Gordon

Respondent/Defendant

[2024] IESC 29

O'Donnell CJ

Dunne J

Woulfe J

Hogan J

Murray J

S:AP:IE:2023:000103

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT of Mr. Justice Brian Murray delivered this 11 ^th day of July 2024

1 . This appeal turns on the meaning of the phrase ‘ person charged with an offence’ as it appears in s. 5(6) of the Road Traffic Act 2010 (‘ the RTA’). The question before the Court is whether the defendant – who has been convicted by the District Court of an offence under s. 5(4) of that Act and has appealed against his conviction and sentence to the Circuit Court – falls within this description. If so, the effect of s. 5(6) of the RTA is that the Circuit Court in determining that appeal enjoys the power to convict the defendant of an alternative offence under s. 4(4) of that Act (with which offence the defendant has not been charged).

2 . Both parties agree that, in its ordinary sense, the phrase ‘ charged with an offence’ refers to a person who stands accused before a Court of that offence or who is (as counsel for the defendant put the matter in oral argument) ‘ the subject of an allegation’. The defendant contends that a person who has been convicted of an offence cannot be said to be charged with that offence because, essentially, the charge against him or her has been proved and, thus, there is no longer any ‘ allegation’ made against them. The Court of Appeal ( [2023] IECA 194) in answering a Consultative Case Stated from the Circuit Court generally agreed with this contention. It held that the defendant was not a person so ‘ charged’ and, accordingly, that the Circuit Court did not enjoy the power, in lieu of finding the defendant guilty of the offence with which he had been charged, of finding him guilty of a different offence with which he had not been charged.

3 . Sections 5(4)(a) and (5) of the RTA provide:

‘ (4) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his or her body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his or her breath will exceed a concentration of—

(a) 22 microgrammes of alcohol per 100 millilitres of breath …

….

(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.’

(emphasis added)

4 . As recorded in the facts as found in the Case Stated, the prosecution arose from an incident involving a single motor vehicle. It occurred on 9 September 2016 at Beaghy, Stradone, County Cavan. Upon their arrival at the scene, the Gardaí observed a silver Skoda positioned partially in a ditch. The defendant was seated inside the vehicle in the driver's seat. He was inebriated and had a bottle of vodka in his possession. A member of the public had earlier taken possession of the keys to the vehicle, and furnished them to the Gardaí on their arrival. That person had previously observed the driver revving the engine of the vehicle and attempting to drive it out of the ditch. There was evidence of tyre marks and tracks indicating that the vehicle's wheels had been spun in an unsuccessful attempt to drive out of the drain. The defendant was arrested and conveyed to the Garda station where he was breathalysed. The apparatus produced a s. 13 certificate which established a reading of 87 microgrammes of alcohol per 100 millilitres of breath. 87 microgrammes is in excess of the permitted level of 22 microgrammes of alcohol per 100 millilitres of breath.

5 . The defendant was convicted of an offence under section 5(4)(a) and (5) in the District Court and thereafter appealed to the Circuit Court. In the course of the hearing of that appeal an application was made for a direction at the conclusion of the prosecution case. The defendant having indicated that he did not propose to go into evidence, the Circuit Court Judge was of the view that there was evidence that there was an attempt to drive during the period when the defendant was in charge of the vehicle. The Judge accepted this evidence and was of the view that it proved such an attempt beyond reasonable doubt. It followed, the Judge found, that he could not convict of an offence contrary to s. 5 of the RTA (this offence only arising where there was neither driving nor an attempt to drive). However, he was also of the view that there was sufficient evidence to prove an offence under s. 4 of the same Act. Section 4(4) is as follows:

‘ (4) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her breath will exceed a concentration of—

(a) 22 microgrammes of alcohol per 100 millilitres of breath …’

(emphasis added)

6 . The Judge was concerned as to whether he had the power to convict the defendant of this alternative offence. That power, if it is enjoyed by the Circuit Court, must be found in s. 5(6) of the RTA:

‘ A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under section 4.’

7 . The Circuit Court Judge's concern was whether he could apply this subsection so as to impose a conviction on appeal which was inconsistent with the conviction imposed at first instance. In particular, he noted that the offences under sections 4 and 5 were mutually exclusive with the result that if the Court imposed a conviction for a s. 4 offence, it would be convicting for an offence that was incompatible with, and therefore distinct from, the finding in the District Court. Moreover, the defendant would be convicted for the first time of an offence contrary to s. 4 at the appeal hearing and would have no right of appeal from this finding. The Judge explained his position thus:

‘ I … concluded that it would not be appropriate to impose a s. 4 conviction on appeal when the District Court had convicted for an offence which was by the terms of statute incompatible with that s. 4 conviction. This was on the basis that the Defendant would have no right of appeal against this new conviction.’

8 . On this basis, the Judge stated a case setting the following questions of law for determination by the Court of Appeal:

• ‘ 1. In the circumstances of this case, am I correct in law to hold that it would be a breach of due process to exercise the power conferred by s.5(6) so as to impose a conviction contrary to section 4, which would be incompatible with the conviction of the District Court and from which there would be no right of appeal.

• 2. If so, is the breach of such significance to warrant allowing the appeal in circumstances where I have determined that there is sufficient evidence to convict the defendant of the alternative section 4 offence?’

9 . The Court of Appeal was of the view that the case reduced itself to a question of statutory interpretation. The judgment of Edwards J. (with which McCarthy and Ní Raifeartaigh JJ. agreed) framed that question as follows (para. 52):

‘ Does the statute only envisage the substitution of an alternative verdict at first instance? Is the expression “a person charged with an offence” to be given a strict literal interpretation, such that it is to be read as referring only to a person who is presently charged (and who has not yet been convicted of the offence before any Court); or, might a purposive interpretation be applied to it so as to allow it to be read as though the words “who has been” were interpolated into it, so that it could then be applied, both at first instance and at appellate level, as though it read “a person who has been charged with an offence”.

10 . Based on this analysis, Edwards J. proceeded to apply the principles of construction outlined and explained by this Court in Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 to conclude that the narrow, literal construction to which he referred here required that the power to substitute an alternative verdict applied only to a person presently charged with an offence, and not to a person who was charged but who has since been convicted of the offence and who was appealing the conviction (para. 57). The Court noted three factors supporting that literal construction – that in contrast to the statutory provision allowing the Court of Appeal to substitute alternative verdicts (s. 3(1)(d) of the Criminal Procedure Act 1993) the Oireachtas had not conferred an express power on the Circuit Court to effect such substitution, that a conviction under s. 5 represents a de facto acquittal of the possible alternative under s. 4, and that the power created by s. 5(6) of the RTA is discretionary and ought not to be exercised if doing so would give rise to an unfairness or result in a denial of due process.

11 . On this basis, the Court of Appeal answered both questions posed in the Case Stated in the affirmative. However, in answering the first question, the Court expressed the view that there was a false premise in that question insofar as it assumed that there were circumstances in which it could have been open to the Circuit Court to exercise the power conferred by s. 5(6) in the context of its appellate jurisdiction. In the view of the Court of Appeal, there were none. The central question before this Court was whether that conclusion was correct.

*****

12 . As I noted in the opening paragraphs of this judgment, the parties were – at least in one...