The Supreme Court said the prosecution had failed to explain why two certified versions of District Court orders differed in four judicial review cases involving driving penalties.
In a judgment delivered on 1 March 2004, Fennelly J addressed the form of the District Court orders in the cases of Dympna Stack, Ciaran Fitzpatrick, Eoin Mulhall and David Whelan. He said he fully agreed with Geoghegan J on the separate issue of access to inspect an intoximeter.
The orders obtained for the applicants recorded that fines and driving disqualifications had been imposed, but did not state that the defendants had been convicted. A prosecution affidavit later exhibited versions received about ten months after the first copies. Those versions added, in manuscript, the words “be convicted of the said offence”.
The prosecution’s affidavit did not explain how or when the words were added. The applicants argued that the orders were defective on their face because they omitted any record of conviction, and that the first copies should be relied upon. They relied on section 14 of the Courts Act 1971, which requires regard to be had to the District Court record in relevant proceedings. The prosecution denied that the orders failed to show jurisdiction on their face.
Fennelly J said the applicants had discharged the burden of identifying the court record to the required extent, shifting the burden to the prosecution to explain the discrepancy. He said it might have been possible to show that the later copies corrected a transcription error, but no such evidence had been given. He also noted there was no evidence that the copies had been corrected under the District Court’s slip rule.
The Supreme Court judgment did not decide whether omitting the conviction from an order would, by itself, invalidate it: Fennelly J said that question had not been argued. He concluded that the applicants had made a prima facie case of error on the face of the record and that the prosecution had produced no evidence to displace it.
Fennelly J said that, if it were necessary, he would grant an order of certiorari on this additional ground in the four cases. The passage does not state that such an order was made. It addresses only this additional issue and does not set out the overall disposition of the appeals.