The Director of Public Prosecutions v Gordon
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 28 July 2023 |
| Neutral Citation | [2023] IECA 194 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 321/2021 |
In the Matter of Section 16 of the Courts of Justice Act 1947
[2023] IECA 194
Edwards J.
McCarthy J.
Ní Raifeartaigh J.
Record No: 321/2021
THE COURT OF APPEAL
Consultative case stated – Breach of due process – Road Traffic Act 2010 s. 5(6) – Circuit Judge stating a case on questions of law – Whether the Circuit Judge was correct in law to hold that it would be a breach of due process to exercise the power conferred by s. 5(6) of the Road Traffic Act 2010 so as to impose a conviction contrary to s. 4, which would be incompatible with the conviction of the District Court and from which there would be no right of appeal
Facts: There was a consultative case stated to the Court of Appeal by a Circuit Court judge sitting on the Northern Circuit and in County of Cavan, pursuant to s. 16 of the Courts of Justice Act 1947, upon a question of law arising in proceedings pending before him, upon the application of the prosecutor in the said proceedings, the Director of Public Prosecutions. At a sitting of the said Circuit Court on the 22nd of January 2020, at which District Court Criminal Appeals were listed for hearing, the defendant, Mr Gordon, appeared before the said Circuit Court judge to prosecute his appeal against his earlier conviction by the District Court for the District Court Area of Cavan, and District No. 5, of an offence of being drunk in charge of a vehicle contrary to s. 5(4)(a) & (5) of the Road Traffic Act 2010. Application was made on behalf of the prosecutor to state a case on 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?”
Held by the Court that the prosecutor had not persuaded it that it was the intention of the Oireachtas that the discretionary power under s. 5(6) (and its analogue s. 4(6)) of the 2010 Act to substitute a verdict of conviction for an alternative specified offence in lieu of a conviction for the offence charged, should be available to a Circuit Court judge hearing a District Court appeal. The Court was not therefore disposed to afford those provisions the purposive interpretation contended for by the prosecutor. In reaching that decision the Court had been particularly influenced by: (i) the clear literal meaning of the provisions at issue; (ii) concern that conviction of one alternative in the District Court represents de facto an acquittal of the possible alternative; and (iii) the fact that in the sphere of indictable appeals the Oireachtas has expressly conferred on the Court of Appeal the power to substitute an alternative verdict in appropriate circumstances, and has not enacted a comparable provision with respect to the appellate jurisdiction of the Circuit Court.
The Court answered the first question stated by the Circuit Judge in the affirmative. In elaboration on this, there was a premise in the question which the Court considered to be false, namely that it could have been open to the Circuit Court in any circumstances to exercise the power conferred by s. 5(6) of the 2010 Act in the context of its appellate jurisdiction. The Court was not satisfied that the s. 5(6) power was one capable of being exercised by a Circuit Court judge in the context of hearing a District Court appeal. The Court held that the second question must also be answered in the affirmative.
Case stated.
JUDGMENT of the Court delivered by Mr. Justice Edwards on 28 th of July 2023 .
. This judgment relates to a consultative case stated to the Court of Appeal by His Honour Judge Francis Comerford, a Circuit Court judge sitting on the Northern Circuit and in County of Cavan, pursuant to s. 16 of the Courts of Justice Act 1947, upon a question of law arising in proceedings pending before him, upon the application of the prosecutor in the said proceedings.
. At a sitting of the said Circuit Court on the 22 nd of January 2020, at which District Court Criminal Appeals were listed for hearing, the defendant appeared before the said Circuit Court judge to prosecute his appeal against his earlier conviction by the District Court for the District Court Area of Cavan, and District No. 5, of an offence of being drunk in charge of a vehicle contrary to section 5(4)(a) & (5) of the Road Traffic Act 2010 (“the Act of 2010”).
. The particulars of the offence of which he had been convicted, and in respect of which he was appealing, were set out on Cavan Charge Sheet No 17051345, as follows:
“[…] that you the said accused/defendant,
On the 09/09/2016 at Beaghy, Stradone, Co. Cavan a public place in the said District Court Area of Cavan and District aforesaid, were in charge of a mechanically propelled vehicle registration number 10D25163 with the intent to drive and attempt to drive the said vehicle (but not driving or attempting to drive) while there was present in your body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in your breath did exceed a concentration of 22 microgrammes of alcohol per I 00 millilitres of breath, to wit 87 microgrammes of alcohol per 100 millitres of breath.
Contrary to section 5(4)(a) & (5) of the Road Traffic Act 2010.”
. At the hearing of the District Court appeal before Cavan Circuit Court the prosecutor called two witnesses, namely a Mr. Keith Brady, a civilian witness, and a Sergeant Cian O'Brien (otherwise “Sgt. O'Brien”), a member of An Garda Siochana. The Circuit Court judge found the following facts to be proved or admitted.
. On the 9 th of September 2016, members of An Garda Síochána attended a single vehicle incident at Beaghy, Stradone, County Cavan. Upon their arrival at the scene, Sgt O'Brien observed a silver Skoda positioned partially in a ditch. Inside, and seated in the driver's seat, was an extremely inebriated individual who had a bottle of vodka in his possession. A member of the public, the aforementioned Mr. Keith Brady, had previously observed the driver revving the engine of the vehicle and attempting to drive it out of the ditch. He had taken possession of the keys to the vehicle, and furnished gardaí with them. Sgt. O'Brien tried to rouse the driver who was extremely drunk and had difficulty forming words. Eventually, Sgt. O'Brien managed to obtain his name and address. The driver was identified as the defendant.
. Sgt. O'Brien's evidence in relation to the positioning of the vehicle was as follows: the front right wheel was on the road, the two left wheels and rear right wheel were in a drain, and; 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. Sgt. O'Brien further testified that he formed a suspicion and an intention to arrest, which he executed. That suspicion, of which he informed the defendant at the time of his arrest, was that the defendant was drunk while in charge of a vehicle.
. Sgt. O'Brien further gave evidence in relation to the defendant's detention and the operation of the Evidenser apparatus at the Garda station to which the defendant was taken, by which apparatus the alcohol in the defendant's breath was measured.
. The test was properly conducted, and it produced a s. 13 certificate which established an alcohol reading in excess of the permitted level (which, in the defendant's circumstances, was 22 microgrammes of alcohol per 100 millilitres of breath), namely, a reading of 87 microgrammes of alcohol per 100 millilitres of breath. Although the s. 13 certificate incorrectly described the offence of which the defendant was suspected, a discrepancy which was explained in evidence by Sgt O'Brien, leading to its admissibility being contested, the prosecutor was ultimately permitted to rely upon it (in both courts), and nothing turns on that in the context of this consultative case stated.
. It may be helpful at the outset to set out the terms of ss. 4(4), and 5(4), respectively, of the Act of 2010.
. Section 4(4) provides:
“ 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, or
(b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.”
. Section 5(4) in turn provides:
“ 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, or
(b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.”
. The defendant in the...
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