The Supreme Court has sent a Ballybunion drink-driving case back to the Circuit Court after finding that a defective summons could not simply be amended without first establishing what happened at the original District Court hearing.
Dan Canniffe had been convicted in the District Court following an allegation that on September 24, 2000, at Sandhill Road, Ballybunion, he drove a motor van while over the prescribed blood-alcohol limit.
The problem was that the summons referred to provisions which had been repealed. It alleged a concentration exceeding 100 milligrams of alcohol per 100 millilitres of blood under the older legislation. By then, the Road Traffic Act 1994 had substituted a new offence using an 80 milligram limit.
The District Court conviction order itself, however, referred to the correct 1994 legislation and the 80 milligram limit. Canniffe had not appeared at the District Court hearing.
When his appeal reached the Circuit Court in Listowel, his counsel argued that he had been convicted of an offence with which he had never been charged. The prosecution submitted that the Circuit Court could amend the summons. Judge Harvey Kenny agreed but stated a case to the Supreme Court before doing so.
Mr Justice Geoghegan held that the Circuit Court has broad statutory powers to correct defects in summonses, but those powers depend on what actually occurred in the District Court. If Canniffe had effectively been tried for the repealed offence, a conviction for the current offence could not be created on appeal by amendment. If the District Court had in substance proceeded under the correct 1994 provision but failed formally to amend the paperwork, the position could be different.
The Supreme Court therefore answered that the Circuit Court was not correct to make the amendment on the information then available.
The ruling did not determine Canniffe’s guilt or finally dispose of his appeal. The Circuit Court was directed to hear evidence, if the prosecution wished, about what happened in the District Court and then decide whether the appeal could proceed.