The Director of Public Prosecutions v Gordon (Unapproved) [2023] IECA 194 (28 July 2023)

The Director of Public Prosecutions v Gordon (Unapproved) [2023] IECA 194 (28 July 2023)

Section 5(6) of the Road Traffic Act 2010 does not authorise the Circuit Court, on appeal from the District Court, to substitute a conviction for an alternative offence under s. 4 where the defendant was not charged with that offence at first instance and the issue was not canvassed below. The statutory language is clear, and the power to substitute is confined to the trial at first instance. To hold otherwise would breach due process by depriving the defendant of a right of appeal from a new and incompatible conviction.

Citation
[2023] IECA 194
Parties
Prosecutor: The Director of Public Prosecutions (at the suit of Sergeant Cian P.M. O’Brien); Defendant: Simon Gordon
Jurisdiction
Ireland
Judgment Date
28 July 2023
Procedural Posture
Consultative Case Stated (criminal Appeal) / Court of Appeal Determination on Questions of Law From Circuit Court
Outcome
Appeal allowed; Circuit Court correct to decline to substitute a s. 4 conviction on appeal.
Legal Topics
Alternative Verdicts, Statutory Interpretation, Due Process, Mutually Exclusive Offences, Right of Appeal
Criminal Law Road Traffic Law Appellate Procedure Alternative Verdicts Statutory Interpretation Due Process Mutually Exclusive Offences Right of Appeal

Case Brief

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Parties

The Director of Public Prosecutions (at the suit of Sergeant Cian P.M. O’Brien)

Prosecutor

Simon Gordon

Defendant

Procedural Posture

Consultative Case Stated (criminal Appeal) / Court of Appeal Determination on Questions of Law From Circuit Court

Legal Issues

  1. 1 Whether s. 5(6) of the Road Traffic Act 2010 permits the Circuit Court on appeal to substitute a conviction for an alternative offence under s. 4 when the defendant was not charged with that offence at first instance and the issue was not canvassed below
  2. 2 Whether such substitution would breach due process by depriving the defendant of a right of appeal

Ratio Decidendi

Section 5(6) of the Road Traffic Act 2010 does not authorise the Circuit Court, on appeal from the District Court, to substitute a conviction for an alternative offence under s. 4 where the defendant was not charged with that offence at first instance and the issue was not canvassed below. The statutory language is clear, and the power to substitute is confined to the trial at first instance. To hold otherwise would breach due process by depriving the defendant of a right of appeal from a new and incompatible conviction.

Court Disposition

Appeal allowed; Circuit Court correct to decline to substitute a s. 4 conviction on appeal.

Orders

  • The Circuit Court was correct in law to hold that it would be a breach of due process to exercise the power conferred by s. 5(6) to impose a conviction under s. 4 in these circumstances.
  • The breach is of such significance as to warrant allowing the appeal where there is sufficient evidence to convict of the alternative s. 4 offence, but the defendant was not charged or tried for that offence at first instance.