Court allows appeal where defendant proves non-receipt of fixed penalty notice, defeating mandatory evidential presumption under RTA 1961. Verdict: allowed.

Neutral Citation Number: [2009] IECC 1

THE CIRCUIT COURT

EASTERN CIRCUIT COUNTY OF MEATH

D.P.P. V KEVIN TULLY

Judgement delivered by Judge Michael White on the 13/7/2009

Mr. Kevin Tully was convicted in Navan District Court on the 14/5/2008 of exceeding the built up area speed limit of 50 kph at

Kentstown, Navan on the 14/8/2007. He was fined €500. Automatic penalty points applied. He has appealed this conviction. Evidence

was heard at Trim on the 10/3/2009.

Garda John Moroney gave evidence of the vehicle 01 CE 1645 exceeding the speed limit. The speed recorded was 76 kph. Garda

Moroney decided to deal with the matter by way of fixed penalty, pursuant to Section 103 RTA as amended. He forwarded details to

have a fixed penalty applied. He did not receive any notification that the Notice was returned.

Kevin Tully gave sworn evidence that he lived at Rathdreenagh, Beaupark, Navan, Co. Meath and no notice was ever received by him.

It was submitted on Mr. Tully’s behalf, that as there was no evidence that the Notice had either been sent or received, the

conviction was flawed, and the Appeal should be allowed.

Section 103(15) of the Road Traffic Act 1961 states,

“In a prosecution for an offence under subsection (13) of this section consisting of a contravention of subsection (4) of

this section, it shall be presumed until the contrary is shown, that the accused person received the notice under this

section to which the offence relates”.

This presumption is a mandatory evidential presumption. McGrath on Evidence Paragraph 2-101 page 58 states,

“In the case of a mandatory evidential presumption, it suffices to defeat the operation of the presumption if the party

against whom the presumption operates adduces evidence as to the non-existence of the presumed fact, ie it merely

places an evidential burden on the opposing party to adduce some evidence that the presumed evidence does not exist”.

It is unlikely that the Prosecution will know in advance, that the Defence intends to raise the non receipt of a Fixed Penalty Notice.

The responsibility on a member of An Garda Siochana is to serve or cause to be served personally or by post, on the person a Notice

under Section 103 of the Act.

If the evidence for the Defence introduces new matters which the Prosecution could not foresee, the trial Judge has a discretion to

permit rebuttal evidence to be introduced by the Prosecution. (Walsh – Criminal Procedure Paragraph 19-41 Page 925). One would

expect that once the issue is raised by the Defence, the Prosecution would be in a position to produce a Certificate of Posting of the

Notice to the Defendant at the address which the relevant member of An Garda Siochana noted at the time of the alleged offence, or

in the alternative the address of the registered owner of the vehicle.

Proof of posting of the Notice, as distinct from proof of receipt would be sufficient to discharge the onus placed on a member of An

Garda Siochana, by Section 103(2)(a) of the Act. Although this issue was not argued before the Court, I would presume that the

Court could rely on the actual Certificate of Posting without any other proof, such as the evidence of the person posting the Notice.

It is clear from the provisions of Section 103(7)(d) of the Act that the effect of the service of a Fixed Penalty Notice is to postpone a

prosecution for a specific period of time to allow the fixed penalty to be paid, and if it is so paid no prosecution will follow. If not,

once a District Court Summons has been issued in accordance with the Courts (No. 3) Act 1986, and the complaint is made within the

relevant statutory period, the non receipt of a Fixed Penalty Notice is not an automatic bar to the Judge proceeding with the trial. If

the essential proofs required for the offence are established the trial Judge can convict. The fact that penalty points increase, when

a Court conviction arises, is not of itself a bar to conviction. There always remains vested in the Court, the discretion not to proceed

to conviction if basic unfairness arises.