High Court dismisses judicial review application regarding sentencing reasons in a speeding offence case.

Neutral Citation Number: [2008] IEHC 28

HIGH COURT

JUDICIAL REVIEW

[2007 No. 191 J.R.]

BETWEEN

PATRICK KENNY

APPLICANT

AND

JUDGE JOHN COUGHLAN AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Judgment of O’Neill J. delivered the 8th day of February, 2008.

1. In these proceedings the applicant was given leave on the 5th March, 2007 by this Court (Peart J.) to seek by way of judicial

review an order of certiorari quashing the order of the first named respondent made on the 5th day December, 2006, convicting the

applicant of an offence (a speeding offence) contrary to s. 47 of the Road Traffic Act, 1961 (as inserted by s. 11 of the Road Traffic

Act, 2004), and s. 102 of the Road Traffic Act, 1961 (as amended by s. 23 of the Road Traffic Act, 2002).

2. The grounds upon which the applicant was given leave to pursue the foregoing relief were that the decision of the first named

respondent to convict the applicant of the foregoing offence and to fine the applicant €500, was contrary to natural and

constitutional justice and in breach of fair procedures as is stated in paragraph 2 of the applicant’s Statement of Grounds as follows:

“(i) In circumstances where the prosecution did not adduce any evidence as to the speed of the applicant other than

the uncorroborated evidence of the prosecuting Garda.

(ii) In circumstances where the court unlawfully and without good reason prevented counsel from cross-examining a

prosecution witness. The court had failed to order, in particular that there would be disclosure of the details of the

processing of Fixed Charge Notice, and then at the trial would not allow a line of questioning designed to elucidate the

information sought unless the unknown witness the subject of the earlier request had been summoned to court by the

applicant. By doing this, the first named respondent rendered irrebuttable the presumption at s. 103 (10) of the Road

Traffic Act, 1961.

(iii) In circumstances where the only information for the court as to the speed limit in the area in which the applicant

was travelling was given by a Garda Sergeant where that Sergeant had not been called as a witness or was not on oath.

(iv) In failing to give reasons for his decision. In particular, by failing to indicate what evidence he was accepting or

rejecting in failing to address the submissions made; this in circumstances where the evidence of the applicant as to

speed, had not been the subject of challenge or cross-examination where Counsel’s submission to the effect that the

evidence of the prosecuting Garda had not been corroborated, was neither countered nor addressed in any way on

behalf of the Prosecution”.

3. The facts relevant to these proceedings are set out in the affidavits sworn in these proceedings by Evan O’Dwyer, a solicitor

acting for the applicant and by Garda Brian Ryan and Sergeant Michael Miley, and may be summarised as follows.

4. On the 3rd December, 2005 at approximately 13.45pm at Longmile Road, Drimnagh, Dublin 12, Garda Ryan was on duty operating a

speed check. He stopped a motor vehicle registration number 03LD 789, a red Nissan Primera. The car was driven by the applicant

herein. Garda Ryan informed the applicant that he was driving at a speed of 72 kph in a 50 kph zone and showed the applicant that

speed recorded on the speed gun. Garda Ryan asked the applicant for identification and he produced a driving licence. Garda Ryan

informed the applicant of the penalties that arose from a failure to pay a Fixed Charge Notice which would issue in due course. Garda

Ryan then said in evidence that the fine had not been paid, hence the summons had issued which brought the applicant before the

court.

5. In cross-examination, Garda Ryan said that he was standing near Drimnagh Castle outbound and that he was not aware of by-laws

in existence. At this point, the prosecuting Sergeant, Sergeant Miley, interjected, and said that as the speed limit in operation was a

built up area speed limit, it was not governed by any by-law. Garda Ryan stated that he informed the applicant of the 28 and 56 day

procedure and that he might be summonsed to court. In further replies to cross-examination, Garda Ryan said that when he returned

after his shift to the station, he imputted the details of the applicant from his garda notebook into a handheld device. This device sat

in a cradle and downloaded information on to a computer. He said that this was then sent electronically to the Notice Office also

known as the Fixed Charge Processing Centre (FCTS). The information was then sent and transferred to Phoenix Park where it was

processed by a central mainframe computer. An outside agency, he said, was responsible for this. He said that this was Tico Limited.

He said that this company was responsible for putting it on paper and then they issued the Fixed Charge Notice, which was sent to

the applicant. Garda Ryan further said that the information was not transferred by hand or by any third party, and the only

involvement by any person was the person who put the notices into the envelopes. He was asked who this person was.

6. At this point, the first named respondent intervened and stopped the line of cross-examination being pursued. The affidavit of Mr

O’Dwyer and that of Garda Ryan differ as to the reason why this cross-examination was stopped. Mr O’Dwyer says that the reason

given by the first named respondent, was that this line of cross-examination could not be pursued unless the witnesses, whose

identity was sought from Garda Ryan in cross-examination, were called, to which counsel for the applicant responded that this could

not be done unless their identity was disclosed as had been sought in correspondence prior to the hearing and now in cross-

examination. In the event, the first named respondent adhered to his refusal to allow further cross-examination on this line.

7. Garda Ryan’s version of this event is that he was not an expert on the computer processing of the information concerned and could

not give any more information than that already given in evidence. His inability to furnish any more information on the point, and that

he had made this clear to counsel for the applicant was the reason why the first named respondent stopped further cross-

examination on this line.

8. Counsel for the applicant then requested the first named respondent to adjourn the case to allow the relevant individuals to be

identified by the State so as to permit their attendance for the purposes of examination which would then allow cross-examination to

continue. The first named respondent refused this application. Counsel for the applicant then submitted that the case should proceed

on the basis that the prosecuting Garda could not give the evidence he had given and protested that the required information which

was within the remit of the State was not made available. The first named respondent dismissed this submission and request and

directed counsel for the applicant to continue.

9. The first named respondent then stated that there were presumptions under the Road Traffic Acts and these presumptions were to

the effect that what had occurred was in order and it was a question of rebutting the presumption.

10. Counsel for the applicant then submitted the only evidence as to speed was the uncorroborated oral evidence of the prosecuting

garda and he relied upon s. 21(4) of the Road Traffic Act, 2002 for what appears to have been an application for a direction. Also,

the applicant relied upon s. 103(2) of the Road Traffic Act, 1961 to submit that the prosecuting garda had not served or caused the

notice to be served which had been the issue upon which the first named respondent had refused to allow cross-examination to

continue. The first named respondent rejected these two submissions, apparently without giving reasons.

11. At that point, the applicant was called to give evidence. He told the first respondent, with the assistance of a number of

photographs which he had taken, that he was travelling in a 60 kph zone and not in a 50 kph zone. He stated in evidence that to the

best of his knowledge he was not exceeding the speed limit, but in reply to a question from the first named respondent “can you

explain your speed?”, the applicant stated that he did not think he was going at that speed, i.e. 72 kph.

12. The major part of the applicant’s defence was that he was in a 60 kph speed zone and not a 50 kph speed zone. In cross-

examination, Garda Ryan, when asked about this, had said that where he was standing carrying out the speed check, there was a 50

kph speed limit sign on the road.

13. Then, counsel for the applicant repeated his submissions under s. 21(4) of the Road Traffic Act, 2002 and s. 103(2) of the Road

Traffic Act, 1961. Thereafter, the first named respondent stated that he was satisfied with the evidence outlined before him and he

saw no reason to dismiss the prosecution and went on to convict the applicant and impose a fine of €500.

14. As said earlier, the applicant was given leave to apply on four grounds. The first of these is to the effect that the prosecution

failed to produce any evidence of the applicant’s speed, save that of the uncorroborated evidence of the prosecuting garda.

15. It is clear from the evidence summarised above that the facts don’t support this submission. Garda Ryan, when he stopped the

applicant, showed him the speed recorded on the speed gun. Manifestly, that evidence was capable of corroborating the evidence of

Garda Ryan. Indeed it could be said the evidence as to speed was not Garda Ryan’s evidence but rather the evidence of the speed

recorded on the speed gun, in which case s. 21(1) of the Road Traffic Act, 2002 (as amended by s. 15 (a) of the Road Traffic Act,

2004) would have applied. The relevant part of this is s. 21(1) (b) and it reads as follows:

“(i) The onus of establishing prima facie proof of a constituent of an offence (including the speed at which a person,

whether the accused or other person, was driving, under s.47, 52, 53, 55, 91, 92, 93 or 94 of the Principle Act or s. 25

of the Act of 1994, may be discharged by tendering evidence from which that constituent can be inferred of

measurements or other indications which were given by - . . . .

(b) Electronic or other apparatus, including a radar gun, which is not capable of producing a permanent record.

It is not necessary to prove that the electronic or other apparatus was accurate or in good working order”.

16. In my view, it is this section which it would appear to have applied rather than s. 21(4) of the Act of 2002 which is in the

following terms:

“(iv) In proceedings for an offence referred to in ss. (i), if proof of the offence involves proof of the speed at which a

person (whether the accused or other person) was driving, the uncorroborated evidence of one witness stating his

opinion, as to that speed, shall not be accepted as proof of that”.

17. If one were to regard the evidence of speed as the evidence of the Garda, then the inexorable conclusion is that the evidence

was corroborated by the speed recorded on the gun. If one were to take the view that the primary evidence is that of the reading

given of the speed recorded on the gun, then s. 21(1)(b) applies and no corroboration is required.

18. Even if the respondent erred in this regard (and there is no indication that he did), that error would clearly have been an error

within jurisdiction and not amenable to the remedy of judicial review.

19. The third ground relied upon was to the effect that the only information before the court as to the speed limit in the area where

the applicant was travelling was given by the prosecuting Garda Sergeant who was not called as a witness and was not sworn.

20. This ground, too, in my opinion, is not supported by the facts established from the evidence in the case. In the course of cross-

examination, Garda Ryan gave evidence to the effect that where he was standing he was looking at a speed limit road sign which

disclosed the speed limit to be 50 kph. The evidence was that the location was on the Longmile Road adjacent to Drimnagh Castle.

Manifestly, the respondent was entitled to take judicial notice of the fact that this was a built up urban area. Hence, what was said

by the prosecuting sergeant was not unsworn evidence but can properly be regarded as a submission to the effect that no by-laws

applied in respect of that built up area.

21. As with the previous ground, if there was any error on the part of the respondent (and in this instance also there is no indication

of such error), it was clearly an error within jurisdiction.

22. Mr McDonagh, S.C. for the applicant did not vigorously press either of the foregoing two grounds, placing primary reliance on the

second and fourth grounds.

23. The second ground, which is a natural justice or fair procedures ground, is to the effect that the respondent failed to order

disclosure of details of the processing of the Fixed Charge Notice, in advance of the trial, and at the trial, disallowed a line of cross-

examination designed to elucidate the information sought unless unknown witnesses, the subject of the earlier request, had been

summoned to court by the applicant, and in so doing, the first named respondent rendered irrebuttable the presumption at s.103(10)

of the Road Traffic Act, 1961.

24. Prior to the hearing, the solicitor for the applicant sought information in a letter dated 13th January, 2006 addressed to the

Superintendent, An Garda Siochána, Terenure, Dublin 6. This letter states inter alia:

“We have been consulted in relation to a Fixed Charge Notice which issued to our client on the 9th December relating to

an alleged offence on the 3rd December last.

We are concerned about the format of the Fixed Charge Notice. There is a period of 56 days within which any Fixed

Charge Notice must be paid. This 56 days expires on the 3rd February next.

We require confirmation as to what form a Fixed Charge Notice takes. To clarify this, we require the Statutory

Instrument to which the format of the Fixed Charge Notice corresponds. You will be aware that Statutory Instrument

492 of 2002 is the original statutory instrument which sets out the format on which a Fixed Charge Notice is taken and

this has been subsequently amended.

Given that this is fundamental to the entire procedure, we require confirmation by return post.

We are also instructed that this offence is alleged to have taken place on the Longmile Road. We are instructed that the

Garda stopped the client and inputted his details but did not issue the Fixed Charge Notice immediately. This is borne out

by the fact that the offence is alleged to have taken place on the 3rd December whereas the date of the Fixed Charge

Notice is the 9th December.

In light of the foregoing, we require confirmation as to what procedure was involved with regard to the completion of

the Fixed Charge Notice and in what context it is alleged the offence took place.

More particularly, we require confirmation as to whether the new Itronix hand held computer was used by the Garda and

if so what evidence will be offered so as to confirm that the offence did actually take place and what evidential proof

there will be in respect of the same, bearing in mind s.21 of the Road Traffic Act, 2002, as amended by s.15 of the Road

Traffic Act, 2004.

We enclose herewith for your attention copy correspondence received from Sergeant Michael Miley for Inspector James

Keegan of the Garda Fixed County Office at Capel Street. . . .”.

25. This letter was replied to by a letter of the 7th April , 2006 from Garda Ryan in which he says inter alia:

“On the 3rd December, 2005, I was operating a speed check on the Longmile Road, Drimnagh, Dublin 12, a public place.

At approximately 13.45 hours I stopped motor vehicle 03 LD 789 a red Nissan Primera, this vehicle was travelling at 72

kph in a 50 kph zone. I spoke with the driver of the vehicle and explained to him why he was being stopped.

Furthermore, I showed the driver of the vehicle the speed gun which had the speed of his vehicle clearly marked on the

gun, this was explained to the driver. I then asked the driver for identification and he produced a driving licence. The

driving licence identified the driver as Patrick Kenny of the above mentioned address. I took down all relevant details

pertaining to the outlined offence in my official Garda notebook. There was not a Notice issued to Mr Kenny at the

scene, I fully explained to Mr Kenny the procedure that would follow relating to the offence and what the requirements

are in relation to the Fixed Charge Penalty Notice.

On returning to the station, I imputted all details of Mr Kenny’s offence into a hand-held device. This device was then

downloaded and the details were forwarded electronically to the Parking Fines Office, Capel Street, for processing. There

will be oral evidence in relation to the offence provided in court.

I understand from your correspondence that your client was issued the Fixed Penalty Notice on the 9th December, 2005.

Once the details are downloaded and forwarded to the Parking Fines Office, it is no longer under my control and I am

unable to comment on the procedures adopted by this office.

Please find attached a copy of Statutory Instrument No. 492 of 2002 in relation to the format of a Fixed Penalty Notice

issued to Mr Kenny. Should you require further Statutory Instruments relating to this legislation, please refer your

queries to the Government Publications Office, Sun Alliance House, Molesworth Street, Dublin 2 . . ”.

26. The evidence of the solicitor for the applicant is that this letter was not received by him or by the applicant. By letter of 24th

October, 2006, sent to the Superintendent, An Garda Siochána, Terenure, Dublin 6, the solicitor for the applicant raised 154 separate

queries. Some of these queries involved multiple demands for information. One query, i.e. no. 17, broke down into a further 10

questions. Query number 33 consisted of 7 internal questions. Query number 60 involved 6 additional questions, query 60(f) sought a

copy of all patents issued to the manufacturer of the computer and software extracting the information from the video to include the

drawings and the specifications.

27. When the matter came before the District Court on the 27th October, the solicitor for the applicant pressed the respondent for an

order directing replies to queries raised in this letter. The respondent declined that but made a “Gary Doyle” order, and adjourned the

matter to the 5th December, 2006. By letter of the 24th November, 2006, Garda Ryan, in compliance with the “Gary Doyle” order, set

out his proposed evidence. This letter was in largely similar terms to the previous one written by him. When the matter was before

the court on the 5th December, 2006, counsel appearing for the applicant complained that neither this letter nor the previous one

sent by Garda Ryan had been received and that it was only that morning that the defence had seen a précis of the evidence to be

called on behalf of the prosecution.

28. In my view, in a summary proceeding in respect of a speeding offence, the disclosure ordered by the respondent was entirely

appropriate. The 15-page letter of the 24th October, 2006 with 154 requests for information and documents, was a preposterous

exercise in summary proceedings and the demand for disclosure in terms of that letter was rightly rejected.

29. The first respondent cannot be faulted, if it was the case that the two letters which Garda Ryan says he sent to the applicant or

his solicitor were not received. In light of the fact that the applicant acknowledged through his counsel that he had seen the précis

of Garda Ryan’s evidence on the morning of the trial, i.e. the 5th December, 2006, and having regard to the simplicity of the

evidence, in my view it cannot seriously be said that in a summary prosecution for a speeding offence, the applicant’s right to natural

justice and fair procedures was breached by the first respondent in refusing to adjourn the hearing of the complaint.

30. Given that the applicant’s complaint is that because of this, and the subsequent disallowing of further cross-examination by the

respondent, which I will deal with shortly, he was prevented from rebutting the presumption contained in s. 103(10) of the Road

Traffic Act, 1961, one cannot ignore the fact that in a letter of the 13th January, 2006 (open correspondence), the solicitor for the

applicant implicitly acknowledges receipt by the applicant of the Fixed Charge Notice issued to the applicant on the 9th December,

2005, relating to the offence on the 3rd December, 2005.

31. I shall return to this later.

32. Moving to the complaint concerning the stopping of cross-examination at the hearing on the 5th December, 2006, the first named

respondent stopped Counsel for the applicant in cross-examination of Garda Ryan in a line of cross-examination which sought to elicit

from Garda Ryan the identification of persons involved in the process of the issuance of a Fixed Charge Notice. In the course of that

cross-examination, it was Garda Ryan’s evidence that the information gleaned by him in his encounter with the applicant when he

stopped him for speeding was inputted into a hand-held device and downloaded onto a computer and transferred to a mainframe

computer, from which the Notice issued and that the only person involved was the person who put the Notice into an envelope. It

was at this point that the first named respondent intervened. The evidence of Garda Ryan was that he was unable to furnish any

more information and that that was the reason the cross-examination was stopped then. The evidence of the applicant was that the

first named respondent stopped cross-examination on this line unless the person or persons in question were going to be called to

which the applicant’s counsel responded that this could not be done because their identity was not known to the applicant because

that had not been disclosed in pre-trial correspondence and was not now being permitted to be ascertained in cross-examination.

33. The issue to which this line of cross-examination was relevant was the rebutting of the presumption set out in s. 103(10) of the

Road Traffic Act, 1961 as inserted by s. 21 of the Road Traffic Act, 2000 and substituted by s. 15(h) of the Road Traffic Act, 2004

which reads as follows:

“(h) By substituting for sub-section (10) the following:

(10) In a prosecution for a Fixed Charge offence, it shall be presumed until the contrary is shown, that -

(a) The relevant Notice under this section has been served or caused to be served and,

(b) That a payment pursuant to the relevant Notice under this section accompanied by the Notice duly

completed (unless the Notice provides for payment without the Notice accompanying the payment)

has been made”.

34. In effect, two presumptions arise, namely -

(a) That the Notice has been served or cause to be served, and

(b) That payment accompanied by the Notice duly completed has not been made.

35. Clearly, the line of cross-examination stopped was wholly irrelevant to presumption (b). Similarly, the enquiries raised in pre-trial

correspondence were likewise wholly irrelevant to this presumption.

36. The line of cross-examination which was stopped had a relevance to presumption (a). Having regard to the fact that the only

person identified in the cross-examination as having been involved in the process was the person who put the Notices into an

envelope, the probative value of the identity of that person to rebutting the presumption was tenuous and remote in the extreme. It

was clearly to be inferred from the evidence elicited, that the person who discharged this function, or the persons who discharged

this function, would be highly unlikely to remember the Notice addressed to the applicant out of the hundreds if not thousands of

such Notices placed in envelopes by such persons. The apparent futility of any further cross-examination on that line would have

justified any Judge in curtailing it.

37. In any event, the stopping of the cross-examination did not stop the applicant rebutting either presumption. He was in a position

to give evidence that he either did not receive the Notice, or if he did that he had paid a fixed fine with a duly completed Notice.

38. It is quite clear from the evidence, or indeed the absence of any evidence, that the applicant did not maintain either of these

contentions, and the implicit acknowledgement by his solicitor in correspondence that he had received the Fixed Charge Notice, would

clearly have inhibited any effort to rebut that presumption.

39. Hence his purported rebuttal of either presumption was speculative, though permissible, and was not at all in my view hampered

by the stopping of the cross-examination or by any want of pre-trial disclosure.

40. Therefore, in my view, and taking the evidence at its height from the applicant’s point of view, there was no breach of the

applicant’s constitutional right to natural justice and fair procedure. If one were to accept the evidence of Garda Ryan in these

proceedings, which was not contradicted, as to the reason for the stopping of the cross-examination, no complaint whatever could

be made by the applicant of any breach of his right to natural justice and fair procedures.

41. A final ground advanced by the applicant is that the first named respondent did not give any adequate reasons for his decision.

The first named respondent’s decision-making came in two stages. The first stage was his ruling which required the applicant to go

into evidence. What appears to have happened is that following the stopping by the first respondent of the cross-examination of

Garda Ryan, as discussed above, counsel for the applicant applied for an adjournment to ascertain the identification of persons he

was seeking to identify and to bring them to court. This application for an adjournment was refused by the first named respondent.

Counsel for the applicant then submitted that the case should continue but without Garda Ryan’s evidence because of his failure to

have given the required information. This submission was rejected by the first respondent. Counsel for the applicant then submitted

that the only evidence of speed was the evidence of Garda Ryan which was uncorroborated evidence and therefore should not be

accepted pursuant to s. 21(4) of the Road Traffic Act, 2002.

42. Counsel for the applicant then opened s. 103(2) of the Road Traffic Act, 1961 and submitted that Garda Ryan had not served or

caused to be served the Notice, which had been the issue on which the first named respondent had refused to allow further cross-

examination.

43. As discussed earlier, the reliance placed by counsel for the applicant on s. 21(4) of the Road Traffic Act, 2002, was plainly

misplaced.

44. Section 103(2) of the Road Traffic Act, 1961, was replaced by s.11 of the Road Traffic Act, 2002 and in turn substituted by

s.15(h) of the Road Traffic Act, 2004 which contains the presumptions discussed above. Section 103(2) of the Road Traffic Act,

1961, had been repealed. The applicant’s submission based on s.103(2) of the Road Traffic Act, 1961, was plainly wrong, failing as it

did to have regard to the two presumptions discussed above as inserted by s.15(h) of the Road Traffic Act, 2004.

45. The applicant rejected the submissions without giving detailed reasons.

46. Following this, the applicant went into evidence; his evidence was to the effect that he was driving in a 60 kph zone. When asked

by the respondent about his speed, his reply was to the effect that he did not think he was doing the speed alleged. He did not give

evidence that he did not get the Notice and there was no evidence that if he had got the notice that he had paid the fixed fine with

a duly completed Notice. It would appear that apart from the evidence of the applicant, no other evidence was called on behalf of

the applicant.

47. Thus, the state of the evidence at the conclusion of the applicant’s case was that there was evidence from Garda Ryan of having

stopped the applicant, having showed him the speed recorded on the speed gun, which was sufficient proof of same pursuant to

s.21(1) of the Road Traffic Act, 2002, as substituted by s.15(a)(1)(b) of the Road Traffic Act, 2004, and thereby rendering

inapplicable s. 21(4) of the Road Traffic Act, 2002. There was also evidence given by Garda Ryan that the speed limit of the place

was 50 kph. This was to be inferred from the fact that the area was a built up area. This speed limit is prescribed by s. 5(1) of the

Road Traffic Act, 2004. In addition to that, there was the evidence of Garda Ryan that where he was standing he was looking at a

sign showing the speed limit at 50 kph. There was no evidence at all offered by the applicant directed at rebutting either of the

presumptions mentioned above to which the respondent had alluded in refusing the applicant’s earlier submissions.

48. At the conclusion of the evidence, the first named respondent had asked the defence, namely the applicant, if the defence was

finished. At that point, it appears that counsel for the applicant repeated the submissions he had previously made under s. 21(4) of

the Road Traffic Act, 2002, and s. 103(2) of the Road Traffic Act, 1961.

49. Following this, the respondent stated that he was satisfied with the evidence presented and saw no reason to dismiss the

prosecution.

50. The nature and extent of reasons which must be given by a District Judge for a decision has been considered by the Supreme

Court in the case of O’Malley v. Ballagh [2002] I.R. 410. In that case, the proceedings before the District Court were a prosecution

under s. 49 of the Road Traffic Act, 1961 as amended. Murphy J, with whom Hardiman J. and Geoghegan J. concurred, said the

following at p.416:

“I would be very far from suggesting that Judges of the District Court should compose extensive judgments to meet

some academic standard of excellence. In practice, it would be undesirable, and perhaps impossible, to reserve

decisions even for a brief period. On the other hand, it does seem, and, in my view, this case illustrates that every trial

Judge hearing a case at first instance, must give a ruling in such a fashion as to indicate which of the arguments he is

accepting and which he is rejecting, and, as far as practicable, in the time available, his reasons for so doing, and

further it does seem to me that in failing to rule on the arguments made in support of the application for a non-suit, he

fell into unconstitutionality, to use the words of Henchy J. in the State v. Holland and Kennedy [1977] I.R. 193, 20”.

51. Immediately before the foregoing passage, the following was said by Murphy J.:

“At the conclusion of the State’s case, the applicant and his legal advisors were required to decide whether they should

go into evidence or not. To make that decision, it was essential to know which of the arguments were accepted and

which rejected”.

52. Although it is not stated in the judgment why it was essential for that applicant to know which of his arguments were accepted

and which rejected, for the purpose of deciding to go into evidence or not, and it is not at all apparent from the judgment why this

was so, it is clear that this perceived need of that applicant was at the heart of the court’s ratio decidendi.

53. I would be of opinion that the foregoing passage in the judgment of Murphy J. is confined to those cases, where that type of

need exists, and, that case is properly to be distinguished.

54. In determining the extent of the obligation of a District Judge to give reasons for his decision, regard must be had to a number of

factors. The first factor, in my view, is the particular need of a person appearing before the District Court to have specific reasons

given for the decision made. The first situation which might be encountered is where an application is made for a non-suit on a

submission that there is No Case to Answer. This will happen after the prosecution has given its evidence and the application will

invariably be on the basis that either there is no evidence of the commission of the offence or that the evidence is defective or

insufficient for legal reasons to warrant a conviction for the particular offence, or that the evidence is of such a contradictory or

tenuous character, that a court could never be satisfied beyond a reasonable doubt of the guilt of the accused.

55. In general, the reasons for the rejection of a submission of No Case to Answer will invariably be immaterial. The critical question at

that stage of the proceedings is whether or not the defendant needs to offer evidence to resist the prosecution. If his submission of

No Case to Answer is rejected, it simply means that in order to resist prosecution, he must go into evidence. A reasoned analysis of

the evidence or legal submissions that have arisen at that point of the case by the District Judge, will not, in general, alter the

choices that have to be made by a defendant at that point.

56. At the close of the case, the District Judge will make the final decision. For the purposes of an appeal, any reasons given by the

District Judge for his decision will not influence the subsequent appeal which will be a complete re-hearing. Invariably, a disappointed

defendant can make his decision to appeal or not to appeal on the basis of the decision of the District Judge regardless of what his

reasons for it are and in the light of the fact that an appeal will be a full re-hearing, the appellant does not have to be concerned or

engage with the reasons for the decisions, as is the case in an appeal from the High Court to the Supreme Court.

57. In my view, it is not necessary for the purposes of appeal for a District Judge to state specific reasons for his decision.

58. Is it necessary for a District Judge to state his reasons for the purposes of enabling a party affected by the decision to decide

whether to apply to the District Judge to state a case for the High Court? Cases stated arise in two circumstances in the District

Court. The first of these is before a decision is made in the case, where an issue of law arises which is of such a nature as to leave

the District Judge unable to reach a conclusion. Generally, this will arise where the point is a novel one in respect of which there is

not a clear authority. In this circumstance, a consultative case stated can arise pursuant to s. 52 of the Courts (Miscellaneous

Provisions) Act, 1961 and a request for a case stated may come from the parties, or a District Judge of his own motion, may decide

to state a case on a consultative basis to the High Court. Of course, in this situation, the District Judge has not yet made any

decision: hence the reasons for that decision have not yet arisen.

59. The other situation in which a case stated may arise is pursuant to s. 51 of the Courts Supplemental Provisions Act, 1961 where

after a District Judge has made a decision, a defendant may apply to the District Judge to state a case to the High Court on a point

of law, which has arisen in the case and has been determined against the party seeking the case stated. This is a case stated by

way of appeal. In this situation, a determination has been made with which a party is dissatisfied, as being erroneous on a point of

law, and if there is some doubt on a legal point and as to the legal correctness of the conclusion of the District Judge, the party

seeking the case stated may be able to persuade the District Judge of that, and to state a case for the opinion of the High Court. An

invariable feature of these situations is that the party seeking the case stated is aware that a legal point has been determined

against him and hence is either aware of any reasons given by the District Judge, which clearly give him dissatisfaction, or

alternatively if no reasons are given, is of the view that the opinion of the High Court may lead to a reversal of the conclusion of the

District Judge on the point in question. What is clear is, that in this situation, the giving of reasons for the decision by the District

Judge, or the absence of such reasons, invariably will not be a critical factor in the seeking of a case stated. For a case stated to

arise at all, necessarily, a legal point has to have arisen in the course of the case upon which either expressly, or by necessary

implication, the District Judge has based his conclusion and decision. The giving of specific reasons for that decision, or indeed the

absence of such reasons, could, in my view, have little or no bearing on the decision by the disappointed party to seek a case stated,

given that the fundamental basis for applying for a case stated is that there is some uncertainty on the state of the relevant law

justifying a recourse to the superior courts for their opinion as to the true state of the law.

60. Section 51(1) of the Courts (Supplemental Provisions) Act, 1961) requires the District Judge who has decided to accede to an

application for a case stated:

“to state and sign a case setting forth the facts and grounds of such determination . . .”.

61. The section does not require that the reasons for such determination should be stated.

62. The long established practice is that the party seeking the case stated is required to draft the case stated, which is then

approved and signed by the District Judge. This practice would be inconsistent with an obligation on the part of the District Judge to

give reasons for his determination.

63. I am of opinion, therefore, that in general the giving of reasons by a District Judge for his decision is not required to enable or

assist a party to apply for a case stated.

64. For the purposes of enabling a party in District Court proceedings to decide whether or not to seek judicial review, the failure by a

District Judge to give reasons for his decision, can have little or no relevance in the sense that in the context of that jurisdiction, the

reasons given would only be relevant to the irrationality ground. Unless the circumstances were entirely unusual, it could not be said

that the absence of stated reasons amounts to irrationality in the sense that that term is understood in the judicial review

jurisdiction. Otherwise, the absence of reasons for a decision would be immaterial to a decision whether to seek judicial review or not,

unless it could be said that there was a general or universal obligation on a District Judge to state reasons for a decision.

65. A second factor to which regard must be had is the nature of proceedings before the District Court. In general, proceedings

before the District Court are conducted in a summary manner, suitable for the disposal of prosecutions for minor offences.

Proceedings are conducted on the basis of oral evidence and the outcome of the proceedings invariably depends on the decision

taken by the District Judge on that evidence. In my opinion, it is not necessary for a District Judge to give analytical reasons for the

acceptance or the rejection of any particular piece of evidence. It is sufficient to merely indicate an acceptance or rejection of the

evidence offered on either side of the case.

66. Where legal submissions are made, it is not necessary that each submission should elicit from the District Judge a decision or

judgment in which the merits or lack of merits of the submission are given in a reasoned legal analysis. In the context of summary

proceedings, such a response could not be expected from a District Judge who has no written material in advance of the hearing upon

which to prepare for such an exercise, and in the context of normal District Court lists, has no time to consider that kind of response.

Bearing in mind the absence, in general, of a specific need on the part of the party for reasons for the decision, as discussed above, I

am of opinion that this, combined with the summary nature of the jurisdiction, dictates that in giving decisions, District Court Judges

need only make clear the nature of the decision they are making and in unambiguous terms, the basis for that decision. It could never

be said that where a District Judge is presented with submissions on a series of legal points, he or she is obliged to provide a legal

analysis of his/her reasons for accepting or rejecting any of them.

67. This is all the more so when a District Judge is called upon, as frequently happens, to adjudicate on weak, if not unstatable, legal

points enthusiastically argued by inexperienced lawyers.

68. It is sufficient, in my view, for the District Judge to indicate an acceptance or rejection of the points raised. To require more than

this, would, in effect be to require of the District Judge a fully reasoned judgment on each point, because it is very difficult, if not

nigh on impossible, to find some kind of concise, succinct middle ground between a simple rejection or acceptance of a point and a

fully reasoned judgment, if what is being attempted is a reasoned explanation of the decision.

69. It may often be the case, having regard either to the simplicity of the issue, or the fact that the point raised is a well settled

one, and/or is one which frequently arises, that reasons for the decision can readily be stated by the District Judge, as frequently

occurs. That does not mean that there should be a general obligation on District Judges to state reasons in all cases, regardless of

the complexity of, or novel nature of the point in issue.

70. In this regard, I agree with the judgment of Charleton J. in the case of Lyndon v. District Judge Mary Collins and Anor. (Judgment

delivered 22nd January, 2007), where he said:

“What is essential, however, is that people know going out of court what they have been convicted for and why they

have been convicted . . .”.

71. In this context, one has to take what was said by the District Judge in giving his decision in conjunction with what has transpired

in the proceedings. If evidence has been given by a number of witnesses for the prosecution, and contradictory evidence given by

the defence and the Judge says he prefers the prosecution evidence or he accepts that the charge is made out on the prosecution

evidence, that is sufficient to convey to any reasonable person that the Judge has made his decision on the basis of accepting the

prosecution evidence and rejecting the defence evidence and in my opinion, such a formulation of the decision is ample to convey to

the defendant, the party affected the basis upon which the decision is reached i.e. the reason for the decision.

72. Returning to the circumstances of this case, it is clear that the first named respondent unambiguously rejected the submissions

made by counsel for the applicant when, at the close of the prosecution case, a submission of No Case to Answer was made and

similarly at the close of the defence case, but did not give reasons for rejecting these submissions. The submissions made on behalf

of the applicant could rightly or fairly be regarded as weak or unstatable points, particularly when assessed in the light of the

evidence which had been given by Garda Ryan. There was not, in my opinion, any breach of the applicant’s constitutional right to fair

procedures and natural justice in the manner in which the first named respondent rejected these arguments.

73. Insofar as the evidence in the case is concerned, the first named respondent expressed himself to the effect that he was

satisfied with the evidence presented and saw no reason to dismiss the prosecution.

74. It must be borne in mind that what is said by a District Judge in giving his decision must be understood in the light of proceedings

that have taken place before him. A statement of the District Judge giving his decision, looked at solely in isolation, may appear to

explain very little, but when seen in the light of the proceedings that have occurred, will be fully understandable and unequivocally

convey the basis for the decision, to those parties to the proceedings, and others who may have been in attendance and paying

attention to the proceedings.

75. In my opinion, the statement of the first respondent in giving his decision in this case, in the context of the proceedings that had

taken place before him, was readily understandable to the parties, and in my view, unequivocally conveyed, first of all, the decision,

and secondly that the basis of that decision was that the first respondent accepted the evidence of the prosecution and his

statement to the effect that he saw no reason to dismiss the prosecution, implied that he was satisfied that the applicant had failed

to rebut the relevant presumptions, as discussed above, and that accordingly he was satisfied beyond a reasonable doubt that he

should convict.

76. I have come to the conclusion, therefore, that the applicant has failed to demonstrate that there was any breach of his

constitutional right to natural justice and fair procedures on the basis of what he contends was a lack of reasons given by the first

respondent for his decision to convict him of the offence in question.