D.P.P. v. Canniffe [2002] IESC 69 (18 October 2002)

THE SUPREME  COURT

Denham, J.
Hardiman, J.
Geoghegan, J.
81/02

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

DAN CANNIFFE

DEFENDANT

IN THE MATTER OF A CONSULTATIVE CASE STATED PURSUANT TO SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 AND PURSUANT TO ORDER 59 OF THE RULES OF THE SUPERIOR COURTS

Judgment of Mr Justice Geoghegan delivered the 18th day of October 2002

	This is a consultative Case Stated to the Supreme Court from His Honour Judge Harvey Kenny a judge of the Circuit Court sitting in the Circuit Court in Listowel, Co. Kerry.  For the purposes of a proper understanding of the issues involved I think it desirable to cite the operative part of the Case Stated in full.  It reads as follows:
“1.	At the sitting of the Circuit Court held at Listowel on the 24th May 2001 the Complainant (hereinafter called the ‘Respondent’) charged the Defendant (hereinafter called the ‘Applicant’) inter alia with the offence set out in the schedule hereto, by way of appeal from an order of the District Court of the 8th day of March 2001, convicting the Applicant of the said offences.  The Court subsequently allowed the appeal relating to the other matters before the Court on that day, and the issues, for the purposes of this inquiry, relate only to the said offence as set out in the said schedule hereto.
	 2…

3.	Mr Devlin, in his second submission, then referred the Court to the offence charged as the charging clause on the face of the summons, and in particular that the summons charged that whereas on the 5th day of January 2001, an application was made to this office by Garda T. Horgan on behalf of the above named prosecutor for the issue of a summons to the Defendant, the above named accused, alleging that he on the 24th September 2000 at Sandhill Road, Ballybunion, in the County of Kerry, a public road within the Court area and District aforesaid, a public place, did drive a mechanically propelled vehicle, to wit, a motor van registered number 98 C 17776, while there was present in his body a quantity of Alcohol such that within three hours after so driving, the concentration of Alcohol in his blood did exceed a concentration of 100 mls. (sic) of alcohol per 100 mls. of blood, contrary to section 49(2) and (4) (a) of the Road Traffic Act, 1961 as inserted by section 10 of the Road Traffic (Amendment) Act 1978 as amended.  Mr Devlin then submitted that section 10 of the Road Traffic Act, 1994 provided that section 49 of the Principal Act was substituted by a new section 49(2) which provided that 
‘a person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of Alcohol such that, within three hours after so driving or attempting to drive, the concentration of Alcohol in his blood will exceed a concentration of 80 mls. (sic) of alcohol per 100 mls. of blood.’

Mr Devlin submitted the Courts enquiry (sic) that the long title of the Road Traffic Act 1994 provided that the Act became operative on the 20th April 1994.  Mr Devlin submitted that the summons on foot of the complaint made by the prosecuting Garda, was defective and bad on its face, in that it charged an offence which was not known to law in that the offence of driving while the concentration of Alcohol in a person’s blood exceeded a concentration of 100 mls. (sic) of Alcohol per 100 mls. of blood was abolished by the 1994 Act.
4.	Mr O’Sullivan, the State Solicitor submitted that it was within the Court’s jurisdiction to amend the summons accordingly to recite the appropriate concentration now extant.
5.	Mr Devlin submitted that the Court had no jurisdiction in these circumstances to amend the summons in that the Court would be obliged to amend the entire charging clause of the summons and which would not reflect the actual complaint upon which the summons is grounded.
6.	Having considered the submissions the Court was of the opinion that it was so entitled to amend the summons.
7.	Mr Devlin requested of the Court before making the amendment that the Court should state a case to the Supreme Court for  its opinion as to whether:
(a)	The Court was correct in law in so holding that it was entitled to amend the charging clause of the original summons to reflect the statutory provisions as contained in the Road Traffic Act, 1994. 

SCHEDULE

That you the said accused on the 24th day of September 2000 at Sandhill Road, Ballybunion, Co. Kerry a public road within the Court area and district aforesaid a public place, did drive a mechanically propelled vehicle, to wit, a motor van registered number 98 C 17776 while there was present in your body a quantity of Alcohol such that within three hours of so driving the concentration of Alcohol in your blood did exceed a concentration of 100 mls .(sic) of Alcohol per 100 mls. of blood, contrary to Section 49(2) and 4(a) of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic (Amendment) Act 1978 as amended.”

There is one obvious unintended error in the Case Stated in that the concentration of alcohol is expressed throughout in millilitres rather than milligrams.   I am treating the Case as corrected.
Appended to the Case Stated were the summons and the conviction and order made.  The summons is in a standard form under the Courts (No. 3) Act, 1986.  It contains in mostly printed form a recital of the alleged offence in respect of which the summons was applied for and that quite clearly sets out the offence inserted into the 1961 Act by section 10 of the 1978 Act which had by then been repealed.  Not only is the citation of statute inappropriate but the actual description of the offence is the description appropriate to the 1978 offence i.e. concentration of 100 milligrams of alcohol per 100 mls. of blood rather than the 80 milligrams of alcohol per 100 mls. of blood under the 1994 Act.
	The conviction and order however refers to a complaint of the relevant offence under the 1994 Act and in the description of the offence refers to the 80 milligrams of alcohol per 100 millilitres of blood.  There is on the face of it therefore a valid conviction of an extant offence.
	It is clear from the Case Stated that at the hearing of the District Court appeal counsel for the Defendant argued that the conviction was for an offence with which his client had never been charged.  It was, however, accepted that the Defendant never appeared in the District Court.  From the Case Stated, it would appear that the only answer which Mr O’Sullivan, the State Solicitor, made to the objection of the Defendant’s counsel Mr Devlin was that it was within the Circuit Court’s jurisdiction to amend the summons and “to recite the appropriate concentration now extant”.  The Court decided that it was entitled to amend the summons in that way and it is this entitlement which is in issue before this court.
	One slightly curious feature of the Case Stated is that there is no indication as to the believed source of such power to amend.  It is fairly conceded in the written submissions on behalf of the D.P.P that the power cannot derive from the District Court rules.  It was decided in the State (Ahern) v Cotter [1982] IR 188  that the District Court Rules Committee was not authorised to make a rule of court affecting the jurisdiction of the Circuit Court in a District Court Appeal.  The written submissions of the D.P.P. submit that there is no express power to amend in the Circuit Court rules but they claim that such power derives from two statutory provisions i.e. Section 76 of the County Officers and Courts (Ireland) Act, 1877 (mistakenly cited in the submissions as 1887) and Section 49 of the Civil Bill Courts Procedure Amendment (Ireland) Act 1864.  It is clear, however, from a reading of these two sections that the only relevant one is section 76 of the 1877 Act.  I agree with the reasoning of counsel for the D.P.P. that that section was clearly carried over by the Courts of Justice Act 1924 and the Courts (Supplemental Provisions) Act 1961 and is still operative.  Although there are a number of reported cases dealing with this section before the independence of the State and indeed there is at least one in the period between 1922 and 1924, there seems to be only one reported case relating to the section since 1924 namely the State (O’Sullivan & Ors) v The Circuit Court Judge of Cork [1931] IR 732.  That was an application for certiorari heard by a Divisional Court consisting of Sullivan P. (as he then was) Hanna J. and O’Byrne J. All three judges in their judgments seem to have taken for granted that section 76 of the County Officers and Courts (Ireland) Act 1877 was still part of the law of 
Saorstat Eireann.  The section reads as follows:
“No conviction or order made by any justice or justices shall be held void or        shall be quashed by reason of any defect, omission or variance in the summons, charge or information  upon which the same shall purport to have been made provided that such defect, omission or variance shall not have misled or prejudiced the Defendant, or have affected the merits of the case and the justice or justices at the original hearing, or any court of appeal or superior court before whom the appeal of any such justice or justices shall afterwards come may, upon such terms as shall appear just, make any amendment in any summons, charge or information which shall appear to be  requisite for the purpose of making the conviction or order conformable with the same or of raising the real question at issue and deciding the case as justice shall require.”

	There is no doubt that the section confers wide powers of amendment somewhat analogous to the relevant District Court rules.  But in my view it can only come into play in a case where the Appellant was tried in the District Court for the offence for which he appears to have been convicted by reference to the Order.  If the Defendant was tried for a nonexistent offence, he cannot have a conviction entered against him in respect of an existing offence.  If that happens this will be a matter of legitimate defence on the District Court appeal and it cannot be cured by amendment.
	If, on the other hand, notwithstanding what may have been contained in documentation such as the application for the summons or the summons itself the Defendant was in fact tried in the District Court for an existing offence then, if the Defendant goes the route of appeal rather than judicial review the Circuit Court judge can cure any defects in the documentation by virtue of section 76 unless an injustice would ensue.
	One view of this case which was partly mooted by counsel for the D.P.P. might be that the Circuit Court judge should not go behind the order appealed against and should therefore embark only on a hearing of the charge as set out in the order.  Such an approach would be consistent at least with the view taken by the Circuit Court  Rules Committee in 1950.  Under Order 43 of the original Circuit Court Rules, in the case of a District Court appeal, an originating summons was transmitted to the County Registrar only in civil cases.  It is quite deliberately omitted from the list of documents to be transmitted in criminal charges.  Many years later the rule was amended to include the summons.  The amendment reflected the view of some Circuit Court judges at least that the terms of a summons could be relevant to a determination of a District Court appeal in a criminal case.
	In my view any doubts on this matter were removed by the judgment of this Court delivered by Finlay C.J. in the D.P.P. (Nagle) v Flynn [1987] IR 534.  Strictly speaking that was a judgment dealing with the six months time limit and when the period might stop.  But it is also in my view clear support for the view that the Court can go behind the order.  At page 530 of the report the following passage of the judgment of the court delivered by Finlay C.J. appears:
“With regard to question (c) the position appears to me to be as follows.  There can be, in my view, no doubt as to the jurisdiction of the learned Circuit Court judge to hear the appeals which are brought before him.  An order has been made in the District Court which, on the face of it, is valid and the penalties imposed are penalties within the jurisdiction of that Court.  The Circuit Court judge, therefore, has jurisdiction to hear the appeal but cannot exclude, upon the hearing of that appeal, an issue raised by the Defendant that the prosecution had failed to prove a valid complaint so as to ground a charge made within the time limited and that, therefore, the prosecution must fail.”

	It would seem equally to follow from the nature of the appeal by way of re-hearing as referred to in that judgment that the case can be made that the Defendant has been convicted of an offence for which he was not charged or tried.  The raising of such defence however must always be signposted to the prosecution and for this reason I think that it was appropriate that the matter should have been raised at the commencement of the hearing of the District Court appeal.  But surprisingly, the State Solicitor merely asked for an amendment.  It is not clear whether the particular State Solicitor had prosecuted the matter in the District Court or not.  Normally such a prosecution would be carried out by a member of the Gardai.  However from another part of the case stated which I have not cited, it is clear that there was a preliminary point raised also about the spelling of the Defendant’s name and in that instance Mr O’Sullivan was immediately able to explain to the Circuit Court judge that an amendment had been made by the District Court judge.  That may suggest that Mr O’Sullivan was present in the District Court.  He certainly does not appear to have made any submission to the effect that the District Court judge adverted to the error in the summons and either amended it or decided to proceed without amendment on what would have been the correct charge.  One can easily envisage a situation where a State Solicitor would thereupon request an adjournment to ascertain what exactly happened in the District Court with a view to adducing evidence on it if necessary.  The conduct and outcome of the District Court appeal may be affected by what in fact happened in the District Court.
	In this particular case for instance there are several possibilities. 
1.	The District Justice may never have noticed the error and may not have been made aware of it but when the order came to be drawn up by the District Court clerk he may have inserted the correct statutory provision and the correct description of the offence.
2.	The District Court judge may have been aware of the error and may have amended the summons without a formal order of amendment having ever been drawn up or communicated to the County Registrar.
3.	The District Court judge may have been aware of the error but may have made it clear that she was proceeding on the basis of the 1994 Act without making any amendment to the documentation.  
4.	The District Court judge may have taken the view that the original description and citation in the application and summons were invalid but permitted the prosecuting Guard to formulate a new oral complaint before her.  If she adopted this procedure in the absence of the Defendant, her entitlement to do so may be highly questionable but that would be a matter for judicial review and not something with which the Circuit Court judge on an appeal would have to concern himself.

Even though no adjournment was sought to investigate any of these matters I do not think that the learned Circuit Court judge should have exercised the power of amendment (if it existed) without evidence before him of what happened in the District Court.  On the one hand, he had no right to assume that an amendment was necessary and secondly such an amendment would be inappropriate if the Defendant had never in fact been tried in the District Court in respect of the offence set out in the conviction.
In this connection it is relevant to consider what the status of the proceedings was when they first came before the District Court.  The District Court judge would have had before her a summons issued under the Courts (No. 3) Act 1986.  That summons recited that an application had been made to the District Court clerk for a summons alleging driving with a concentration of blood exceeding 100 mls. of alcohol per 100 millilitres. of blood contrary to certain specified provisions of the Road Traffic Act 1961 inserted by section 10 of the Road Traffic (Amendment) Act 1978 as amended.  As is made clear in the Case Stated that section 10 was repealed and replaced by section 10 of the Road Traffic Act 1994 and under this last provision 80 mls of alcohol had been inserted instead of 100.  The penalties were also increased.  
It should be noted, however, that a person who would have been guilty of the 1978 Act offence had it still existed, would ipso facto have been guilty of the 1994 Act offence though not of course the reverse.
The powers of amendment under the District Court rules are extremely wide and it may well be, that, at least if the Defendant had been present and given an opportunity to resist, the Court would have had a discretion to amend and proceed accordingly.  As it does not arise in this Case Stated, I do not intend to comment further on either the powers of the District Court to amend or the effect of such amendment.  It is sufficient to state that I do not necessarily accept that a “complaint” purporting to be based on a repealed statutory provision is in all circumstances invalid ab initio if the substantial allegation would itself be an offence under an up-dated statutory provision.
Even assuming that the “complaint” in this case was not necessarily invalid, there could not have been a valid conviction under the 1994 Act in the District Court in the absence of an amendment at the hearing or at the very least of a clarification that the trial was a trial under the 1994 Act.  This is particularly so, having regard to the increase in penalties effected by the 1994 Act.  I am reinforced in this view by the judgment of Finlay P. (as he then was) in State (Duggan) v Evans (1978) 112 ILTR 61.  At page 63 he refers to the wide powers of amendment of a District Justice subject to the proviso that amendments should not be made if the Defendant had been misled or prejudiced but he also refers to the rule which permits the District Justice to proceed without making an amendment.  The former President pointed out that the rule contained no express guidance as to whether in a given instance the justice should proceed by amendment or by ignoring the frailty in the document.  But he then goes on to say:
“It appears to me, however, that this choice should be made by reference to the effect of such frailty on an eventual conviction if such were recorded.  Where, as would appear to be the position in this case, amendment is necessary to make a conviction on the charge valid, the amendment should be made; where it is not it may be omitted.  Furthermore this jurisdiction and obligation of the justice in an appropriate case to make an amendment is not in my view dependant on an application by the prosecution but can and should be exercised, as if the power of a Court to amend an indictment, on his own initiative.”

I would adopt that passage subject to the qualification that failure to make a formal amendment in the circumstances suggested by the former President might not necessarily in my view be fatal to the conviction but might rather be regarded as an irregularity which if it was raised on an appeal could in fact be corrected under the 1877 Act.  What is of fundamental importance, however, is that the District Court judge is clear at all stages as to what the offence is which he or she  is trying and that that is clear to everybody in Court.
A further passage from the same judgment is also relevant.  That was a case relating to an alleged offence under section 23A of the Larceny Act 1916 as inserted by the Criminal Law (Jurisdiction) Act, 1976.  At p.62 of the Report the former President in his judgment says the following:
“Counsel for the defendant then submitted that the charge was defective in that although section 23A of the Larceny Act 1916 had been inserted into that Act by virtue of the provisions of the Criminal Law (Jurisdiction) Act, 1976 there was in the charge no reference to the 1976 Act.  The learned District Justice accepted this submission and dismissed both charges.  It is against that decision on a point of law that this appeal by way of Case Stated arises.

The first issue which arises is whether the charge reciting only the Act of 1916 and containing no reference to the Act of 1976 is a valid charge, and the second issue is whether if it not valid, the learned District Justice erred in law in dismissing the charge by reason of that invalidity.

The particular Acts complained of in the charge did not constitute a separate offence until the passing of the Act of 1976.  That Act, in addition to creating this new offence by way of insertion into the Act of 1916, also provided a new maximum punishment for it.  A perusal therefore of the Larceny Act 1916 carried out in ignorance of the provisions of the Criminal Law (Jurisdiction) Act, 1976, would reveal neither the particulars of the offence charged nor the appropriate punishment for it.

This on the face of it, appears to me to be an insufficient charge and if a conviction proceeded upon it on those precise terms it would appear to me to be a bad conviction.”

If it were to emerge that the insertion of the correct offence in the conviction was merely done by the District Court clerk and that for all practical purposes the District Court judge had conducted a trial in respect of the repealed offence then in my view the Defendant was not convicted of any offence known to the law and that cannot be cured on appeal by an amendment under the 1877 Act.  On the other hand, if it was made clear in the District Court that the Defendant was being tried for the offence under the 1994 Act but the District Court judge failed to make a formal amendment of any of the documentation this might not necessarily be fatal to the conviction and it may be open to the Circuit Court judge on an appeal to exercise his power of amendment.  But that precise issue is not before the Court at the moment and I would prefer not to give a definitive view on it.
I would propose therefore that the formal answer to the question put in the Case Stated should be in the following terms:
“The Court was not correct in making the amendment on the information then before it.”

The case obviously has to go back to the Circuit Court and the Circuit Court judge should permit the State if it so wishes to adduce evidence as to what precisely happened in the District Court.  In the light of that evidence it may emerge that the appeal can proceed without any amendment or alternatively that it can proceed with an amendment or that the Appellant in his objection has raised an unanswerable defence which cannot be cured by such amendment.
There is one other matter to which I should refer.  If it emerged that the District Court judge did in fact overtly proceed to trial of the correct offence under the 1994 Act then whether she made amendments or not or whether she accepted a new complaint or not, it may well be that she should have done none of that without notification to the Defendant given that there was no appearance by him or on his behalf at the hearing.  But if such objection can be made it could only be made in judicial review proceedings and it is not a proper issue to raise on the appeal to the Circuit Court.