[2024]_IESC_29 — [2024]_IESC_29 — Ireland courts

AN CHÚIRT UACHTARACH THE SUPREME COURT

S:AP:IE:2023:000103 [2024] IESC 29

O’Donnell CJ Dunne J Woulfe J Hogan J Murray J

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF SERGEANT CIAN P. M. O’BRIEN)

APPELLANT/ PROSECUTOR

- and -

SIMON GORDON

RESPONDENT/ DEFENDANT

JUDGMENT of Mr. Justice Brian Murray delivered this 11th day of July 2024 2

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: 3

‘(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 4

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— 5

(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 6

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): 7

‘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. 8

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 respect – ad idem as to the plain meaning of the operative words: a person

is ‘charged’ with a criminal offence when an accusation is made that they

committed that offence, often by means of a formal and statutorily prescribed

procedure. The cases abound with statements to this general effect – that

‘charged’ means the solemn act of calling a person to answer the accusation

against him (R v. D’Eyncourt (1881) 21 QBD 109 at p. 119 per Field J.), ‘an

accusation formally made’ (id. at p. 121 per Wills J.), ‘accused … with some

felony or misdemeanour’ (Arnell v. Harris [1945] KB 60 at p. 63), or ‘accused

before a Court’ (Stirland v. Director of Public Prosecutions [1944] AC 315 at

p. 323-324). While the specific meaning of each statutory provision – obviously

– depends on its particular purpose and context, and while the decisions in which

these statements are made were concerned with a range of diverse questions, the 9

usual meaning of the word ‘charge’ refers to a situation in which the prosecuting

authorities continue to agitate an allegation against a person, often assuming in

that connection the full burden of prosecution, usually by way of a process that

commences with either an arrest, or summons:

‘A person is charged with an offence when someone, whether a private

person or a policeman, either appears before a magistrate to prosecute

him for it, or accuses him to a magistrate, constable or other person

having lawful authority to compel him, by arrest or otherwise, to appear

before a competent tribunal and answer the accusation.’

R v. D’Eyncourt (1888) 21 QBD 109 at p. 122 (per Wills J.).1

13. When these definitions are matched against the essential characteristics of an

appeal to the Circuit Court against a conviction by the District Court, the

conclusion that a person who has been convicted of an offence by the District

Court and who appeals that conviction to the Circuit Court remains ‘charged’

with that offence during the hearing of the appeal, appears – at least on first

view – compelling. The right of appeal is conferred by s. 18(1) of the Courts of

Justice Act 1928:

1 The question of when a person has been ‘charged’ for the purposes of Article 6 of the European Convention on Human Rights raises distinct issues, but these have been resolved by reference to a similar formula – the point at which official notification has been given to a person by the competent authority of an allegation that he has committed a criminal offence (Deweer v. Belgium (1980) 2 EHRR 439 at para. 46) and see DPP v. Bary Doyle [2017] IESC 1, [2018] 1 IR 1. It has been found that the protections provided for in Article 6(3) of the Convention extend to the disposition of at least certain appeals notwithstanding the fact that under the law of a contracting state a person may cease to be charged when convicted of a crime (Meftah and ors. v. France [GC] (App. Nos. 32911/96, 34595/97 and 35237/97) (Judgment of 26 July 2002) at para. 40). 10

‘An appeal shall lie in criminal cases from a Justice of the District Court

against any order (not being merely an order returning for trial or

binding to the peace or good behaviour or to both the peace and good

behaviour) for the payment of a penal or other sum or for the doing of

anything at any expense or for the estreating of any recognizance or for

the undergoing of any term of imprisonment by the person against whom

the order shall have been made.’

14. Section 18(3) provides that such an appeal lies to a Judge of the Circuit Court,

whose decision is final, conclusive and itself unappealable. The section falls to

be construed alongside s. 50 of the Courts (Supplemental Provisions) Act 1961

(this enabled sentence-only appeals from orders of the District Court). Where

a notice of appeal is so confined, s. 50 provides as follows:

‘…then, notwithstanding any rule of law, the Circuit Court shall not, on

the hearing of the appeal, re-hear the case except to such extent as shall

be necessary to enable the Court to adjudicate on the question of

sentence.’

15. Appeals from a decision of the District Court to the Circuit Court have been

described as ‘the most complete re-hearings known to the law’ (The State

(Attorney General) v. Connolly [1948] IR 176 at p. 181 per Dixon J., citing

Fitzgibbon J. in Lynham v. Butler (No.2) [1933] IR 74 at p. 114). When a person

appeals a conviction in the District Court, he ‘seeks, and obtains, a hearing of

the case de novo. He, in effect, asks the Circuit Judge to hear the whole matter 11

again and to substitute for the order made by the District Justice … the order

of the Circuit Court …’ (The State (McLoughlin) v. Judge Shannon [1948] IR

439 at p. 449 per Davitt J.). In the course of his judgment in The State (Aherne)

v. Cotter [1982] IR 188, Griffin J. cited with approval (and applied to s. 18),

Palles CB’s statement in Ex parte McFadden (Judgments of the Superior Courts

in Ireland (1903 ed. p. 68)):

‘although the word used in the section is ‘appeal,’ … there is no doubt

that it means that you are to have a ‘new trial’ – a new investigation of

your guilt, with an opportunity to both parties to bring forward new

evidence, and a decision upon that evidence by an independent tribunal,

and an independent mind.’

(emphasis added)

16. So, as Walsh J. explained in The State (Aherne) v. Cotter (at p. 196) an appeal

by way of retrial enables a totally different case to be made by either side or by

both sides. The retrial, Walsh J. said ‘commences on an assumption that the

accused is innocent until he is proved guilty on the retrial’ (at p. 198). Thus it

is that on such a retrial, the sentence can be increased (id.). Henchy J. in the

same case referred to all issues of fact and law being open on such an appeal (at

p. 206). Indeed, most strikingly, in Attorney General (Lambe) v. Fitzgerald

[1973] IR 195 it was established that it is possible for an accused who pleaded

guilty in the District Court to change his plea on appeal, and that the previous

plea in no way ousts the accused’s right to a new hearing against both conviction 12

and sentence. Noting that the effect of s. 50 of the Courts (Supplemental

Provisions) Act 1961 was to give ‘legislative recognition’ to the law as stated

by Davitt J. in The State (McLoughlin) v. Judge Shannon, Henchy J. explained

his conclusion as follows (at p. 198):

‘The defendant appealed against the whole of the order of the District

Court and so it is irrelevant, so far as the question of the jurisdiction

of the Circuit Court is concerned, that he pleaded guilty in the District

Court. That he did so may, of course, affect his credit on the re-hearing,

and therefore go to the issue of his guilt, but it in no way ousts his right

to a new hearing on the matters appealed against, namely, both

conviction and sentence’.

(emphasis added)

17. It is for this reason that the appeal from a conviction in the District Court is a

‘true rehearing’: ‘the only difference from the original hearing being that the

Circuit Court Judge will be aware that an appeal would not be taking place had

a conviction not being previously been recorded against the accused, for that

offence, in the District Court’ (Burke v. DPP [2007] IEHC 121, [2007] 2 ILRM

371 at para. 4 per Charleton J.). Thus, Charleton J. felt it ‘probable’ that the

entry of appeal against a District Court conviction requires the application of

similar criteria for admission to bail as when the accusation is first made and,

as Charleton J. emphasised in the same case, a person convicted in the District 13

Court will enjoy an entitlement to a stay on the conviction (Order 101 Rule 6,

District Court Rules).

18. It is, to my mind, difficult to see how a person who faces such a re-hearing by

way of a new trial, in which the prosecution must assert and prove beyond all

reasonable doubt the elements of the offence alleged against him or her, in

which the appeal can be rerun by either side without regard to the case made

before the District Court, in which the appellant enjoys the benefit of the

presumption of innocence, and in which an accused can appeal against his

conviction for an offence to which he pleaded guilty in the District Court, is

other than ‘charged’ with that offence in the sense in which that word is

ordinarily understood. It is, in particular, very difficult to see how a person who

enjoys the presumption of innocence within a process in which the prosecuting

authorities assert and must prove an allegation of criminal wrongdoing can be

said not to be charged with an offence, for the very reason that they have been

convicted of it. The cases are consistent only with the conclusion that once an

appeal against a District Court conviction opens (and it is to that point in time

that s. 5(6) is directed) the fact of a conviction is relevant only to the jurisdiction

of the Circuit Court to hear the appeal, not to any aspect of its disposition. That,

if nothing else, follows ineluctably from Attorney General (Lambe) v.

Fitzgerald.

* 14

19. The argument advanced by the defendant presupposed that once a person had

been convicted of an offence, he could not be said to be charged with that

offence: his submission to the Court of Appeal was recorded as being that the

‘appellant is no longer a person charged, but rather a convicted person, and

that therefore [s. 5(6)] cannot be availed of on appeal’ (para. 27 of the judgment

of Edwards J.). The Court of Appeal accepted this proposition. Edwards J. said

(at para. 57) ‘applying a narrow literal construction … the power to substitute

an alternative verdict would appear to apply 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 is now appealing the conviction.’ He thus

concluded that the choice in construing the section was between two

alternatives. Either the words ‘a person charged with an offence’ should be

given a strict and literal meaning, excluding a situation in which a person had

been convicted of that offence, or they should be given a purposive construction,

which meant that the words should be interpreted as if they read ‘a person who

has been charged with an offence’. The Court preferred the literal construction

of the provision as it thus defined it to an interpretation that depended on this

interpolation. It was influenced in reaching that conclusion by the fact that there

were various grounds – most particularly concerns around an accused being

subjected to double jeopardy – that it felt lent against imposing the ‘purposive’

interpretation urged by the prosecutor.

20. There will, of course, be provisions in respect of which, as the defendant’s

counsel suggested here, it is wrong to speak of a person being ‘charged’ with

an offence when the allegation is no longer merely an allegation but is instead 15

an offence duly proven in accordance with law. I expect that this may be the

case for the purposes of at least some statutory provisions when, following

conviction, the prosecuting authorities no longer find themselves engaged with

a stage of the legal process where they have to allege and prove the offence in

question. But that is because of what the word ‘charge’ means as a matter of

plain and ordinary usage.

21. This, I think, shows that there is no necessary inconsistency in the law providing

that a person remains ‘charged’ with an offence of which they have been

‘convicted’ and thus no reason why the plain and ordinary meaning of the term

‘charged’ assumes that there has been no conviction (although, it must again be

stressed, the legislative context may in many cases demand that very

conclusion). This is confirmed in the cases: ‘[a] charge is simply what is

narrated in the complaint … and I think the Court is entitled to take the view

that a person is charged with an offence while the complaint charging him

remains before the Court, notwithstanding the tendering of pleas’ (Herron v.

McCrimmon [1969] SLT 37); there will be cases in which ‘the only feasible

interpretation of “charged with an offence” is an expansive one which includes

both the pre-conviction and post-conviction periods’ (R v. MacDougall [1998]

3 SCR 45 at para. 11 (per McLachlin J.)). Clearly, whether this means that a

person remains ‘charged’ until sentenced, or until all appeal avenues are

exhausted will depend on the purpose and context of the legislation in issue.

That being so, it seems decidedly incongruous to describe a person in an appeal

process in which they are both entitled to the presumption of innocence and in

which the prosecution must assert and prove the case against them as a person 16

who is ‘convicted’ but not ‘charged’, just as it is less than consistent to say in

the context of an appeal process in which any prior conviction is simply

irrelevant to the substantive findings the Court must make on the appeal, that a

person is not ‘charged’ with an offence because they stand for the time being

convicted of it.

22. In his careful and persuasive oral submission, Mr. Dwyer SC stressed that the

defendant was, once the District Court Judge had determined the case before

him, a convicted person, and that he remained as such when the appeal came

before the Circuit Court. He noted that it is the accused who is dominus litis in

the appeal, and that if he did not prosecute it, it would be struck out and the

District Court order confirmed. He attached particular importance to the

following statement of Lavery J. in Attorney General v. Mallen [1957] IR 344

at p. 352, made in reference to an appeal from the District Court to the Circuit

Court:

‘The appeal is a true appeal though by way of re-hearing and is not a

re-trial except in form. The defendant appealing comes before the

Circuit Court as a convicted person. He does not rid himself of the

conviction by serving notice of appeal. He is not called on to plead and

his task is to show, if he can, that the conviction was wrong in whole

or in part. This situation is not altered by the circumstance that there is

a re-hearing.’

(emphasis added) 17

23. In that case the accused appeared in the District Court to answer a number of

summonses arising from his driving of a motor vehicle at a specified location

on a specified date. One summons charged an offence of dangerous driving

contrary to s. 51 of the Road Traffic Act 1933, while another charged him with

driving without exercising reasonable consideration for other persons and traffic

using that place contrary to s. 50 of the same Act. He was convicted by the

District Court of the dangerous driving charge while the charge of driving

without reasonable consideration contrary to s. 50 was dismissed. Under s.

51(3) of the Road Traffic Act 1933 in a prosecution for an offence under s.

51(1), a conviction could be imposed under s. 50 without any need for a separate

charge. The accused appealed against the conviction but sought to raise a plea

that by reason of his acquittal by the District Court for the lesser offence, the

prosecution for dangerous driving was barred. He contended that the ingredients

of the offence to be proved under s. 51 were such that they necessarily supported

a conviction under s. 50 and, thus, that the defendant having been acquitted of

an offence under s. 50 could not be tried on the same evidence for an offence

charged under s. 51.

24. This – ingenious – argument was, I think, unsurprisingly rejected. The acquittal

of the accused on the lesser offence followed from his conviction on the s. 51

charge: it would not have been fair to impose a conviction on the s. 50 charge

having convicted him of the dangerous driving offence. Aside from everything

else, s. 51(3) of the Road Traffic Act 1933 specifically provided that on a

prosecution for an offence under s. 51 the accused person may ‘if not convicted 18

of such an offence’ be convicted of an offence under s. 50. This would have

made it difficult to argue that convictions for both offences could ever have been

imposed for the same event. Given that the acquittal on the s. 50 charge was

therefore only because of the conviction on the more serious and different

charge, it could not sensibly operate as a bar to the prosecution of the charge

under s. 51 when the s. 51 conviction was appealed by the defendant.

25. I think that a Court analysing this problem today would conclude that having

been convicted under s. 51 and having appealed that decision, the accused put

himself in the same jeopardy of a conviction under s. 50 on appeal as he had

been at the first trial and, to that extent, there was no basis on which res judicata

would apply, irrespective of what the District Judge had done with the s. 50

charge. Or to put it another way, by appealing a conviction under s. 51, the

accused impliedly admitted the jurisdiction of the Circuit Court to substitute its

own order for that of the District Court, including a conviction under s. 50. This

is how the outcome in Mallen can be reconciled with the decision in O’Leary v.

Cunningham [1980] IR 367 (to which I will return below) where a plea in bar

was successfully raised in an appeal to the Circuit Court against a conviction by

the District Court where there was no statutory power vested in the Court to

substitute an alternative charge. Were the position otherwise, the confirmation

by Kenny J. in O’Leary v. Cunningham that the Circuit Court, on appeal from

the District Court, enjoyed the same power as the District Court to impose a

conviction for careless driving in a prosecution for dangerous driving, would

have been wrong, given that every conviction for dangerous driving implies that

the available alternative and lesser charge is not being imposed. 19

26. All of this, it should be said, is aside from the fact that – by definition – the two

offences were quite distinct: as the judgment of Lord Morris in Connelly v. DPP

[1964] AC 1254 at p. 1306 made clear, a plea of autrefois acquit or convict

arises only where a person has been charged with an offence ‘which is either

the same, or is substantially the same, as one in respect of which he has been

acquitted or convicted or as one in respect of which he could have been

convicted.’ That statement of the law (which post-dates the decision in Mallen)

was approved by Kenny J. in O’Leary v. Cunningham.

27. In any event, in the passage from the judgment of Lavery J. (with whom

Maguire CJ and Kingsmill Moore J. agreed) quoted above and upon which the

defendant relied here, the Judge was doing no more than explaining his view

that following an appeal from the District Court to the Circuit Court, the

conviction or order retained its essential character as an order of the District

Court. This followed from Lavery J.’s analysis of the development of that

jurisdiction from the provisions of the Petty Sessions (Ireland) Act 1851, s.

24(6) of which had provided that the power of the Quarter Sessions on appeal

from petty sessions was to ‘confirm, vary or reverse’ the order appealed against.

The point being made was that it followed from the nature of the appeal thus

understood that a plea in bar could not be made before the Circuit Court in

circumstances where it was not made and could not have been made before the

District Court (hence the Court taking some care to specify that the conviction

under s. 51 preceded the dismissal of the s. 50 charge – p. 351). Thus Lavery J.

noted that it could not be said that the matter was res judicata when the District 20

Judge convicted, begging the question of how it could become res judicata

when his decision was appealed (at p. 353). That reflected the argument

advanced by counsel for the Attorney General, who had contended before the

Circuit Court that the defendant could not be in a better position on the appeal

than he had been in the District Court when he pleaded not guilty to the charges

(at p. 347). This was why Lavery J. referred to the fact that the accused was not

called upon to plead in the appeal. In point of fact, the decision in O’Leary v.

Cunningham would suggest that this aspect of Lavery J.’s reasoning was

incorrect and that it is possible to raise a plea in bar or advance an objection to

the same effect in a Circuit Court appeal even though that would not have been

possible at the first trial in the District Court.

28. Thus understood, the decision of the Court in Attorney General v. Mallen did

not in any sense depend on whether the accused was properly viewed as

‘charged’ nor upon where the burden of proof in the prosecution lay. The case,

accordingly, cannot be viewed as authority for the proposition that a person

convicted by the District Court but who appeals that decision, is incapable of

being characterised as ‘charged with’ the offence in the course of the appeal.

Insofar as Lavery J. suggested that the burden was in some sense on the accused

in the course of an appeal of this kind to ‘show … that the conviction was wrong

in whole or in part’ this was, as my consideration of the cases addressed above

demonstrates, an error which cannot be supported. These comments are

properly viewed as being by way of dictum and this erroneous statement does

not detract from the correctness of the conclusion in the case. The law is clear,

and was most recently correctly described by Barr J. in the course of his 21

judgment in Conlan v. DPP [2021] IEHC 653 at para. 40 – a person who appeals

a conviction from the District Court to the Circuit Court is entitled to the

presumption of innocence.

29. That being so, I find it both unsurprising and correct that in The State

(McLoughlin) v. Judge Shannon Davitt J. stressed that where a defendant takes

an appeal against the decision of a District Justice in a criminal case he impliedly

admits the jurisdiction of the Circuit Court to substitute its own order for that of

the District Court, and that in O’Leary v. Cunningham at p. 377 Kenny J.

assumed that powers of substitution phrased by reference to persons ‘charged’

with offences could be exercised by the Circuit Court in an appeal from a

conviction in the District Court. While, as counsel observed, the point was not

argued in, and the observations were not central to, the outcome of O’Leary v.

Cunningham (to which I will return) it is hard not to be struck by just how

obvious and fundamental the error in the following statement of Kenny J. would

be if the argument advanced by the defendant here was well-founded:

‘It is now established that on the hearing of an appeal from the District

Court, the Circuit Court has power to vary the order made by the

District Justice: The State (McLoughlin) v. Shannon. He also has power

to substitute a conviction of a different offence to that on which the

defendant was convicted in the District Court when such substitution is

authorised by statute or by the common law. Examples of this are found

in s. 44 of the Larceny Act, 1916, under which an accused charged with

robbery may be convicted of an assault with intent to rob, and in s. 53, 22

sub-s. 4, of the Road Traffic Act, 1961, under which an accused

charged with dangerous driving may be convicted of driving without

due care and attention.’

(emphasis added)

*

30. Of course, the Court might be entitled to interpret s. 5(6) in the way contended

for by the defendant were it possible to conclude that by construing ‘charged’

as excluding a person who had been convicted of an offence would give effect

to a legislative intention that could be divined from considerations of context,

or purpose. Similarly, it is arguable that the double construction rule could be

deployed to the same end. Here, three points, reflecting in part the judgment of

the Court of Appeal, were emphasised by the defendant.

31. First, he stresses that the legislative provisions governing appeals to the Court

of Appeal from convictions on indictment confer a specific and express power

to substitute for a verdict of guilty of some other offence (s. 3(1)(d) Criminal

Procedure Act 1993) which, it is suggested, underscores the absence of similar

provisions in the case of an appeal from the District Court to the Circuit Court.

I do not see that this argument has merit. An appeal from the Circuit Criminal

Court or Central Criminal Court to the Court of Appeal is fundamentally

different from that provided for in s. 18 of the Courts of Justice Act because it

is not a ‘true’ re-hearing, and because the fact of, and basis for, the appealed 23

conviction is at the centre of the process. The prosecution does not have to

prove the charge. Instead, the function of the appellate Court is ‘to review so far

as may be required any rulings on matters of law, to review so far as may be

necessary the application of the rules of evidence as applied in the trial, and to

consider whether any inferences of fact drawn by the Court of trial can properly

be supported by the evidence; but otherwise to adopt all findings of fact’ (The

People (DPP) v. Madden [1977] IR 336 at p. 340). It makes sense in that context

that the legislature would conclude that the power to substitute be expressly

stipulated. There is no particular reason to confer an express power of

conviction of an alternative offence where the appeal is truly a complete re-

hearing and, at least presumptively, the Circuit Court enjoys the same powers

as the Court of first instance.

32. Second, the defendant complained of what he contended was the unfair

consequence that would follow were the prosecutor’s case well-founded.

Substantively, that alleged unfairness comes in the form of the fact that this

construction, if correct, would mean that an accused person could be convicted

of an offence on appeal to the Circuit Court without having been convicted of

that charge at first instance and, therefore, would not enjoy any right of appeal

against that conviction. Citing McCabe v. Ireland [2014] IEHC 435, [2015]

IECA 156, [2015] 3 IR 95, the defendant contends that a constitutional reading

of s. 5(6) requires that an appeal would lie to the Court of Appeal against a

decision of the Circuit Court in the circumstances of this case, but stresses that

this is expressly prohibited by s. 18(3) of the Courts of Justice Act, 1928. Thus, 24

the argument runs, the way of avoiding this unfairness is to construe s. 5(6) as

preventing the Circuit Court from convicting on an alternative charge.

33. In McCabe v. Ireland the High Court (Hogan J.) concluded that it would be

contrary to Article 34.3.4° and Article 40.1 of the Constitution for the legislature

to enable a Circuit Court Judge on hearing an appeal against conviction for one

offence to revoke a suspended sentence imposed by another Judge, in

circumstances in which there is no appeal against that decision. Central to that

conclusion was the fact that had the reactivation occurred at first instance in the

District Court, the decision would have been capable of appeal to the Circuit

Court. Hogan J. explained (at para. 17) that the denial of the right of appeal to

one category of litigant simply because of the essentially accidental fact that the

suspended sentence which has been reactivated was imposed by the Circuit

Court on appeal rather than by the District Court, had ‘the inherent capacity to

work a considerable injustice’. That conclusion prompted Hogan J. to grant an

order declaring that it would be unconstitutional to give effect to the reactivated

sentence in the absence of a statutorily conferred right of appeal against the

decision of the Circuit Court to reactivate the sentence. The Court of Appeal

decided that in fact there was a right of appeal to it against the revocation

decision, and therefore did not address itself to Hogan J.’s analysis.

34. In understanding what was decided by the High Court in McCabe v. Ireland,

and in explaining why the decision in that case is not relevant to the issue in the

instant proceedings, it is important to stress that Article 34.3.4° of the

Constitution, in providing that the Courts of first instance shall include Courts 25

of local and limited jurisdiction ‘with a right of appeal as determined by law’

does not necessarily confer a constitutional right of appeal against all decisions

of the District or Circuit Court. That was decided by Finlay J. in The State

(Hunt) v. O’Donovan [1975] IR 39, and indeed that conclusion was restated by

Hogan J. in the course of his judgment in McCabe v. Ireland (at para. 33).

Observing that it was unnecessary to decide whether Article 34.3.4° requires the

existence of a right of appeal against sentence on the part of an accused in every

single case, Hogan J. concluded as he did because, at the very least, the denial

of a right of appeal ‘requires to be objectively justified’ (para. 37). That

objective justification was lacking in the case of the provisions under

consideration in that case: some litigants would have a right of appeal, while

others would not, the differentiation between those who did and those who did

not have that right was based on accidental and essentially random factors and,

in any event, seemed to undercut the legislative intention that, in fact, there

would be a universal right of appeal.

35. In this case, by contrast, the defendant was tried in the District Court on a charge

under s. 5(4) of the RTA. The fact of the power to substitute offences meant

that he was faced not simply with the jeopardy of conviction under s. 5(4), but

also in respect of the closely related and alternative offence under s. 4(4). There

could be no question of that power of substitution being other than

constitutionally regular: it reflects the fact that the offences of drunk driving and

drunk in charge are closely related and may, in any given case, be only finely

separated from each other and even then often on only highly technical grounds

(The Director of Public Prosecutions v. O’Neill [2011] IESC 7 at para. 24). The 26

defendant had a full right of appeal against the outcome of that trial but, because

that appeal represented a complete re-hearing, he faced the same jeopardy in the

Circuit Court as he had in the District Court.

36. To say that the defendant had a right of further appeal because the Circuit Court

might impose a conviction for an offence of which he had not been convicted in

the District Court is to confuse a right of appeal against a decision in a given lis,

with a right to appeal every adverse finding on the various issues that might

arise in the course of a unitary trial. The fact of powers of cross-appeal and

notices to vary in civil litigation shows that appellate Courts may, and regularly

do, reach decisions adverse to a party that were not made in the Courts below.

A right of appeal against each such ‘first-time’ finding would render the appeal

process never ending. Indeed, were the argument well-founded it would mean

that the Circuit Court could not possibly have the power to increase sentence in

a District Court on appeal: the sentence imposed on appeal may be quite

different and more severe from that rendered at first instance. The decision in

The State (Aherne) v. Cotter makes it clear that this may quite lawfully occur,

even though there is no onward right of appeal against what may well be the

first custodial sentence imposed on the accused.

37. Thirdly, the defendant contends that by virtue of being alternative verdicts,

conviction of an offence under s. 5(4) in the District Court was an acquittal of

the defendant of any offence under s. 4(4). Therefore, he says, the defendant is

entitled to raise a plea in bar in respect of s. 4(4), as he was in jeopardy of

conviction under s. 4(4) in the District Court and was acquitted, and that fact, 27

the argument runs, points to the conclusion that the Oireachtas did not intend

the power of convicting on an alternative charge to extend to the Circuit Court.

38. In this context the defendant relies on the decision in O’Leary v. Cunningham.

The defendant in that case was charged with two offences – robbery of a sum

of money contrary to s. 23 of the Larceny Act 1916 and of having received that

sum knowing it to be stolen contrary to s. 33 of the same Act. He was convicted

of the receiving charge, and the District Judge made no order on the robbery

charge. The defendant appealed, the evidence heard by the Circuit Court

disclosing that he had actively participated in the robbery. If he had taken part

in the robbery he could not be convicted of the receiving charge (The People

(Attorney General) v. Carney [1955] IR 324) and he argued that he could not

be convicted of the robbery charge because he had been acquitted of that charge

by the District Court. This Court agreed. It found that the effect of the District

Judge making no order on the robbery charge was equivalent to an acquittal,

and that having been acquitted on that charge by the District Court, the accused

could not be convicted of that same offence by the Circuit Court on appeal.

39. Central to the reasoning of the Court in that case was the fact that the defendant

had actually been acquitted by the District Court of the only relevant offence

with which, on appeal, he could have been convicted. His position was thus

different in three critical and related respects from the position of the defendant

in the instant proceedings. Here, the defendant was never charged with an

offence under s. 4(4), he was never acquitted of an offence under s. 4(4), and

(critically) in O’Leary v. Cunningham there was no statutory provision which 28

allowed any Court to find an accused guilty of robbery when he has been

charged with receiving stolen goods (see the judgment of Kenny J. at p. 377).

This is, of course, in marked contrast to the position in the present case (and, it

should be said, the position in Mallen). Indeed, the judgment of Kenny J.

proceeds on the basis that the outcome of the case would have been different

had there been a power to substitute a verdict of guilty of robbery when an

accused is charged with receiving stolen goods (see p. 377-378) and, as I have

previously observed, he assumed that where statutory provisions allowed an

accused ‘charged with’ one offence to be convicted of another, the Circuit Court

in hearing an appeal from a District Court conviction, had the same power of

substitution. Thus understood, the power of substitution constitutes a legislative

authorisation for what might otherwise in some circumstances be prohibited by

the common law – a conviction by the Circuit Court of an offence of which the

accused might have been but was not charged, and for which the accused has

been acquitted by a Court of competent jurisdiction. As I have earlier noted,

the fact of the close connection between the offence charged and the offence

substituted justifies this and, correctly, it was never suggested in the course of

this appeal that the legislature might not bring this about. As the facts of this

case show, it would be a very strange state of affairs if it could not.

40. In so concluding I am conscious that it might be said that if legislative

authorisation is to be afforded for trial on an offence of which an accused person

has been inferentially acquitted, this must be clearly stipulated and that by

reason of a potential ambiguity around the meaning of the term ‘a person

charged’ this had not, in fact, been provided for by the Oireachtas with the 29

necessary certainty. However, I do not think that s. 5(6) when viewed in context

is ambiguous. For the reasons I have already outlined, it uses a familiar verb

with a firmly established legal meaning. When that meaning is matched against

what happens when a person appeals to the Circuit Court against a conviction

imposed by the District Court, it is to my mind clear that the accused, although

convicted, remains a person who is charged with an offence.

*

41. To this extent, while the Court of Appeal applied the correct methodology to

the construction of s. 5(6), it chose the wrong starting point. It is not necessarily

the case that a person who has been ‘convicted’ of an offence cannot at the same

time be said to be ‘charged’, and it is appropriate to construe the verb ‘charged’

as encompassing a person who has been convicted of an offence when the word

is used in connection with a process which requires the prosecution to assert and

prove an offence against an accused who enjoys the benefit of the presumption

of innocence and in which the fact of conviction is relevant only to the

jurisdiction of the Circuit Court to hear the appeal. It is not necessary to

interpolate the phrase ‘who has been charged’ to so conclude.

42. The conclusion reached by the Court of Appeal meant that it did not engage

directly with the specific question raised by the Circuit Court Judge in the Case

Stated, namely whether it would be unfair to impose a conviction under s. 4(4)

for the first time on appeal, given that this would be a new conviction from

which there would be no appeal. However, I have addressed the substance of 30

this concern earlier in this judgment. There is no necessary unfairness in

imposing such a conviction for the first time on appeal in a context in which the

defendant was, by reason of the provisions of s. 5(6) of the RTA at all times at

risk of such a conviction, and in circumstances in which the offences provided

for in ss. 4(4) and 5(4) of the RTA are closely related. The fact that the offences

are mutually inconsistent does not change this: a right of appeal implies a right

of appeal against the determination of a lis, not a right of appeal against every

finding on every issue that might arise in the course of determining those

proceedings. In this regard it is to be stressed, as it was by Herbert J. in the

course of his judgment in Director of Public Prosecutions v. Kenny [2006]

IEHC 330, that if a Court hearing a case in which it is proposed to introduce an

alternative verdict concludes that doing so will introduce an irremediable

prejudice, it can decline to consider the verdict and acquit the accused.

However, the fact that the accused has no right of appeal against the alternative

verdict is not, itself, such a prejudice.

43. For these reasons I would allow this appeal, and substitute for the answers to

the questions in the Consultative Case Stated the following:

1. No.

2. No.