The Circuit Court has said that a driver’s evidence that he did not receive a fixed penalty notice does not automatically prevent a speeding prosecution from proceeding, provided the essential elements of the offence are proved.
In a judgment delivered on 13 July 2009, Judge Michael White considered Kevin Tully’s appeal against his conviction in Navan District Court. Tully had been convicted on 14 May 2008 of driving above the 50 kph built-up area limit at Kentstown, Navan, on 14 August 2007. He was fined €500 and automatic penalty points applied. Evidence in the appeal was heard at Trim on 10 March 2009.
Garda John Moroney told the court that a vehicle identified as 01 CE 1645 was recorded travelling at 76 kph. He said he dealt with the matter by fixed penalty under section 103 of the Road Traffic Act 1961, as amended, and forwarded details for a notice to be issued. He received no notification that the notice had been returned.
Tully gave sworn evidence that he lived at Rathdreenagh, Beaupark, Navan, County Meath, and had never received a notice. On his behalf, it was submitted that there was no evidence the notice had been sent or received, making the conviction flawed and requiring the appeal to be allowed.
The judgment explained that section 103(15) presumes receipt of the relevant notice unless the contrary is shown. Citing an evidence text, Judge White said this is a mandatory evidential presumption: evidence of non-receipt is enough to place the matter in issue. The judgment said the prosecution may be permitted to offer rebuttal evidence where the defence raises a matter it could not reasonably have anticipated. It said proof of posting, such as a certificate of posting, would be sufficient to meet the service obligation, although the point had not been argued before the court.
Judge White also explained that service of a fixed penalty notice postpones prosecution for a period to allow payment. If it is not paid, non-receipt is not by itself a bar to trial once a summons has been issued in accordance with the Courts (No. 3) Act 1986 and the complaint is made within the relevant statutory period. The trial judge may convict if the essential proofs are established; increased penalty points following conviction do not alone prevent that outcome. The court retains discretion not to proceed to conviction if basic unfairness arises.
The supplied judgment does not state the Circuit Court’s formal order on Tully’s appeal. It therefore does not establish whether the conviction was upheld, quashed or otherwise varied.