Supreme Court allows appeal, ruling a convicted appellant remains 'charged' for Circuit Court jurisdiction.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2023:000103

[2024] IESC 29

O’Donnell CJ

Dunne J

Woulfe J

Hogan J

Murray J

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF SERGEANT CIAN P. M. O’BRIEN)

APPELLANT/ PROSECUTOR

- and -

SIMON GORDON

RESPONDENT/ DEFENDANT

JUDGMENT of Mr. Justice Brian Murray delivered this 11th day of July 2024

1. This appeal turns on the meaning of the phrase ‘person charged with an offence’ as it appears in s. 5(6) of the Road Traffic Act 2010 (‘the RTA’). The question before the Court is whether the defendant – who has been convicted by the District Court of an offence under s. 5(4) of that Act and has appealed against his conviction and sentence to the Circuit Court – falls within this description. If so, the effect of s. 5(6) of the RTA is that the Circuit Court in determining that appeal enjoys the power to convict the defendant of an alternative offence under s. 4(4) of that Act (with which offence the defendant has not been charged).

2. Both parties agree that, in its ordinary sense, the phrase ‘charged with an offence’ refers to a person who stands accused before a Court of that offence or who is (as counsel for the defendant put the matter in oral argument) ‘the subject of an allegation’. The defendant contends that a person who has been convicted of an offence cannot be said to be charged with that offence because, essentially, the charge against him or her has been proved and, thus, there is no longer any ‘allegation’ made against them. The Court of Appeal ([2023] IECA 194) in answering a Consultative Case Stated from the Circuit Court generally agreed with this contention. It held that the defendant was not a person so ‘charged’ and, accordingly, that the Circuit Court did not enjoy the power, in lieu of finding the defendant guilty of the offence with which he had been charged, of finding him guilty of a different offence with which he had not been charged.

3. Sections 5(4)(a) and (5) of the RTA provide:

‘(4) A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his or her body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his or her breath will exceed a concentration of—

(a) 22 microgrammes of alcohol per 100 millilitres of breath …

….

(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.’ (emphasis added)

4. As recorded in the facts as found in the Case Stated, the prosecution arose from an incident involving a single motor vehicle. It occurred on 9 September 2016 at Beaghy, Stradone, County Cavan. Upon their arrival at the scene, the Gardaí observed a silver Skoda positioned partially in a ditch. The defendant was seated inside the vehicle in the driver’s seat. He was inebriated and had a bottle of vodka in his possession. A member of the public had earlier taken possession of the keys to the vehicle, and furnished them to the Gardaí on their arrival. That person had previously observed the driver revving the engine of the vehicle and attempting to drive it out of the ditch. There was evidence of tyre marks and tracks indicating that the vehicle’s wheels had been spun in an unsuccessful attempt to drive out of the drain. The defendant was arrested and conveyed to the Garda station where he was breathalysed. The apparatus produced a s. 13 certificate which established a reading of 87 microgrammes of alcohol per 100 millilitres of breath. 87 microgrammes is in excess of the permitted level of 22 microgrammes of alcohol per 100 millilitres of breath.

5. The defendant was convicted of an offence under section 5(4)(a) and (5) in the District Court and thereafter appealed to the Circuit Court. In the course of the hearing of that appeal an application was made for a direction at the conclusion of the prosecution case. The defendant having indicated that he did not propose to go into evidence, the Circuit Court Judge was of the view that there was evidence that there was an attempt to drive during the period when the defendant was in charge of the vehicle. The Judge accepted this evidence and was of the view that it proved such an attempt beyond reasonable doubt. It followed, the Judge found, that he could not convict of an offence contrary to s. 5 of the RTA (this offence only arising where there was neither driving nor an attempt to drive). However, he was also of the view that there was sufficient evidence to prove an offence under s. 4 of the same Act. Section 4(4) is as follows:

‘(4) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her breath will exceed a concentration of—

(a) 22 microgrammes of alcohol per 100 millilitres of breath …’ (emphasis added)

6. The Judge was concerned as to whether he had the power to convict the defendant of this alternative offence. That power, if it is enjoyed by the Circuit Court, must be found in s. 5(6) of the RTA:

‘A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under section 4.’

7. The Circuit Court Judge’s concern was whether he could apply this subsection so as to impose a conviction on appeal which was inconsistent with the conviction imposed at first instance. In particular, he noted that the offences under sections 4 and 5 were mutually exclusive with the result that if the Court imposed a conviction for a s. 4 offence, it would be convicting for an offence that was incompatible with, and therefore distinct from, the finding in the District Court. Moreover, the defendant would be convicted for the first time of an offence contrary to s. 4 at the appeal hearing and would have no right of appeal from this finding. The Judge explained his position thus:

‘I … concluded that it would not be appropriate to impose a s. 4 conviction on appeal when the District Court had convicted for an offence which was by the terms of statute incompatible with that s. 4 conviction. This was on the basis that the Defendant would have no right of appeal against this new conviction.’

8. On this basis, the Judge stated a case setting the following questions of law for determination by the Court of Appeal:

‘1. In the circumstances of this case, am I correct in law to hold that it would be a breach of due process to exercise the power conferred by s.5(6) so as to impose a conviction contrary to section 4, which would be incompatible with the conviction of the District Court and from which there would be no right of appeal.

2. If so, is the breach of such significance to warrant allowing the appeal in circumstances where I have determined that there is sufficient evidence to convict the defendant of the alternative section 4 offence?’

9. The Court of Appeal was of the view that the case reduced itself to a question of statutory interpretation. The judgment of Edwards J. (with which McCarthy and Ní Raifeartaigh JJ. agreed) framed that question as follows (para. 52):

‘Does the statute only envisage the substitution of an alternative verdict at first instance? Is the expression “a person charged with an offence” to be given a strict literal interpretation, such that it is to be read as referring only to a person who is presently charged (and who has not yet been convicted of the offence before any Court); or, might a purposive interpretation be applied to it so as to allow it to be read as though the words “who has been” were interpolated into it, so that it could then be applied, both at first instance and at appellate level, as though it read “a person who has been charged with an offence”.

10. Based on this analysis, Edwards J. proceeded to apply the principles of construction outlined and explained by this Court in Heather Hill Management Company v. An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 to conclude that the narrow, literal construction to which he referred here required that the power to substitute an alternative verdict applied only to a person presently charged with an offence, and not to a person who was charged but who has since been convicted of the offence and who was appealing the conviction (para. 57). The Court noted three factors supporting that literal construction – that in contrast to the statutory provision allowing the Court of Appeal to substitute alternative verdicts (s. 3(1)(d) of the Criminal Procedure Act 1993) the Oireachtas had not conferred an express power on the Circuit Court to effect such substitution, that a conviction under s. 5 represents a de facto acquittal of the possible alternative under s. 4, and that the power created by s. 5(6) of the RTA is discretionary and ought not to be exercised if doing so would give rise to an unfairness or result in a denial of due process.

11. On this basis, the Court of Appeal answered both questions posed in the Case Stated in the affirmative. However, in answering the first question, the Court expressed the view that there was a false premise in that question insofar as it assumed that there were circumstances in which it could have been open to the Circuit Court to exercise the power conferred by s. 5(6) in the context of its appellate jurisdiction. In the view of the Court of Appeal, there were none. The central question before this Court was whether that conclusion was correct.

12. As I noted in the opening paragraphs of this judgment, the parties were – at least in one respect – ad idem as to the plain meaning of the operative words: a person is ‘charged’ with a criminal offence when an accusation is made that they committed that offence, often by means of a formal and statutorily prescribed procedure. The cases abound with statements to this general effect – that ‘charged’ means the solemn act of calling a person to answer the accusation against him (R v. D’Eyncourt (1881) 21 QBD 109 at p. 119 per Field J.), ‘an accusation formally made’ (id. at p. 121 per Wills J.), ‘accused … with some felony or misdemeanour’ (Arnell v. Harris [1945] KB 60 at p. 63), or ‘accused before a Court’ (Stirland v. Director of Public Prosecutions [1944] AC 315 at p. 323-324). While the specific meaning of each statutory provision – obviously

– depends on its particular purpose and context, and while the decisions in which these statements are made were concerned with a range of diverse questions, the usual meaning of the word ‘charge’ refers to a situation in which the prosecuting authorities continue to agitate an allegation against a person, often assuming in that connection the full burden of prosecution, usually by way of a process that commences with either an arrest, or summons:

‘A person is charged with an offence when someone, whether a private person or a policeman, either appears before a magistrate to prosecute him for it, or accuses him to a magistrate, constable or other person having lawful authority to compel him, by arrest or otherwise, to appear before a competent tribunal and answer the accusation.’ R v. D’Eyncourt (1888) 21 QBD 109 at p. 122 (per Wills J.).1

13. When these definitions are matched against the essential characteristics of an appeal to the Circuit Court against a conviction by the District Court, the

conclusion that a person who has been convicted of an offence by the District Court and who appeals that conviction to the Circuit Court remains ‘charged’ with that offence during the hearing of the appeal, appears – at least on first view – compelling. The right of appeal is conferred by s. 18(1) of the Courts of Justice Act 1928:

The question of when a person has been ‘charged’ for the purposes of Article 6 of the European Convention on Human Rights raises distinct issues, but these have been resolved by reference to a similar formula – the point at which official notification has been given to a person by the competent authority of an allegation that he has committed a criminal offence (Deweer v. Belgium (1980) 2 EHRR 439 at para. 46) and see DPP v. Bary Doyle [2017] IESC 1, [2018] 1 IR 1. It has been found that the protections provided for in Article 6(3) of the Convention extend to the disposition of at least certain appeals notwithstanding the fact that under the law of a contracting state a person may cease to be charged when convicted of a crime (Meftah and ors. v. France [GC] (App. Nos. 32911/96, 34595/97 and 35237/97) (Judgment of 26 July 2002) at para. 40).

‘An appeal shall lie in criminal cases from a Justice of the District Court against any order (not being merely an order returning for trial or binding to the peace or good behaviour or to both the peace and good behaviour) for the payment of a penal or other sum or for the doing of anything at any expense or for the estreating of any recognizance or for the undergoing of any term of imprisonment by the person against whom the order shall have been made.’

14. Section 18(3) provides that such an appeal lies to a Judge of the Circuit Court, whose decision is final, conclusive and itself unappealable. The section falls to be construed alongside s. 50 of the Courts (Supplemental Provisions) Act 1961 (this enabled sentence-only appeals from orders of the District Court). Where a notice of appeal is so confined, s. 50 provides as follows:

‘…then, notwithstanding any rule of law, the Circuit Court shall not, on the hearing of the appeal, re-hear the case except to such extent as shall be necessary to enable the Court to adjudicate on the question of sentence.’

15. Appeals from a decision of the District Court to the Circuit Court have been described as ‘the most complete re-hearings known to the law’ (The State (Attorney General) v. Connolly [1948] IR 176 at p. 181 per Dixon J., citing Fitzgibbon J. in Lynham v. Butler (No.2) [1933] IR 74 at p. 114). When a person appeals a conviction in the District Court, he ‘seeks, and obtains, a hearing of the case de novo. He, in effect, asks the Circuit Judge to hear the whole matter again and to substitute for the order made by the District Justice … the order of the Circuit Court …’ (The State (McLoughlin) v. Judge Shannon [1948] IR

439 at p. 449 per Davitt J.). In the course of his judgment in The State (Aherne) v. Cotter [1982] IR 188, Griffin J. cited with approval (and applied to s. 18), Palles CB’s statement in Ex parte McFadden (Judgments of the Superior Courts in Ireland (1903 ed. p. 68)):

‘although the word used in the section is ‘appeal,’ … there is no doubt that it means that you are to have a ‘new trial’ – a new investigation of your guilt, with an opportunity to both parties to bring forward new evidence, and a decision upon that evidence by an independent tribunal, and an independent mind.’ (emphasis added)

16. So, as Walsh J. explained in The State (Aherne) v. Cotter (at p. 196) an appeal by way of retrial enables a totally different case to be made by either side or by both sides. The retrial, Walsh J. said ‘commences on an assumption that the accused is innocent until he is proved guilty on the retrial’ (at p. 198). Thus it is that on such a retrial, the sentence can be increased (id.). Henchy J. in the same case referred to all issues of fact and law being open on such an appeal (at p. 206). Indeed, most strikingly, in Attorney General (Lambe) v. Fitzgerald [1973] IR 195 it was established that it is possible for an accused who pleaded guilty in the District Court to change his plea on appeal, and that the previous plea in no way ousts the accused’s right to a new hearing against both conviction and sentence. Noting that the effect of s. 50 of the Courts (Supplemental Provisions) Act 1961 was to give ‘legislative recognition’ to the law as stated by Davitt J. in The State (McLoughlin) v. Judge Shannon, Henchy J. explained his conclusion as follows (at p. 198):

‘The defendant appealed against the whole of the order of the District Court and so it is irrelevant, so far as the question of the jurisdiction of the Circuit Court is concerned, that he pleaded guilty in the District Court. That he did so may, of course, affect his credit on the re-hearing, and therefore go to the issue of his guilt, but it in no way ousts his right to a new hearing on the matters appealed against, namely, both conviction and sentence’.

(emphasis added)

17. It is for this reason that the appeal from a conviction in the District Court is a ‘true rehearing’: ‘the only difference from the original hearing being that the Circuit Court Judge will be aware that an appeal would not be taking place had a conviction not being previously been recorded against the accused, for that offence, in the District Court’ (Burke v. DPP [2007] IEHC 121, [2007] 2 ILRM

371 at para. 4 per Charleton J.). Thus, Charleton J. felt it ‘probable’ that the entry of appeal against a District Court conviction requires the application of similar criteria for admission to bail as when the accusation is first made and, as Charleton J. emphasised in the same case, a person convicted in the District Court will enjoy an entitlement to a stay on the conviction (Order 101 Rule 6, District Court Rules).

18. It is, to my mind, difficult to see how a person who faces such a re-hearing by way of a new trial, in which the prosecution must assert and prove beyond all reasonable doubt the elements of the offence alleged against him or her, in which the appeal can be rerun by either side without regard to the case made before the District Court, in which the appellant enjoys the benefit of the presumption of innocence, and in which an accused can appeal against his conviction for an offence to which he pleaded guilty in the District Court, is other than ‘charged’ with that offence in the sense in which that word is ordinarily understood. It is, in particular, very difficult to see how a person who enjoys the presumption of innocence within a process in which the prosecuting authorities assert and must prove an allegation of criminal wrongdoing can be said not to be charged with an offence, for the very reason that they have been convicted of it. The cases are consistent only with the conclusion that once an appeal against a District Court conviction opens (and it is to that point in time that s. 5(6) is directed) the fact of a conviction is relevant only to the jurisdiction of the Circuit Court to hear the appeal, not to any aspect of its disposition. That, if nothing else, follows ineluctably from Attorney General (Lambe) v. Fitzgerald.

19. The argument advanced by the defendant presupposed that once a person had been convicted of an offence, he could not be said to be charged with that offence: his submission to the Court of Appeal was recorded as being that the ‘appellant is no longer a person charged, but rather a convicted person, and that therefore [s. 5(6)] cannot be availed of on appeal’ (para. 27 of the judgment of Edwards J.). The Court of Appeal accepted this proposition. Edwards J. said (at para. 57) ‘applying a narrow literal construction … the power to substitute an alternative verdict would appear to apply only to a person presently charged with an offence, and not to a person who was charged but who has since been convicted of the offence and is now appealing the conviction.’ He thus concluded that the choice in construing the section was between two alternatives. Either the words ‘a person charged with an offence’ should be given a strict and literal meaning, excluding a situation in which a person had been convicted of that offence, or they should be given a purposive construction, which meant that the words should be interpreted as if they read ‘a person who has been charged with an offence’. The Court preferred the literal construction of the provision as it thus defined it to an interpretation that depended on this interpolation. It was influenced in reaching that conclusion by the fact that there were various grounds – most particularly concerns around an accused being subjected to double jeopardy – that it felt lent against imposing the ‘purposive’ interpretation urged by the prosecutor.

20. There will, of course, be provisions in respect of which, as the defendant’s counsel suggested here, it is wrong to speak of a person being ‘charged’ with an offence when the allegation is no longer merely an allegation but is instead an offence duly proven in accordance with law. I expect that this may be the case for the purposes of at least some statutory provisions when, following conviction, the prosecuting authorities no longer find themselves engaged with a stage of the legal process where they have to allege and prove the offence in question. But that is because of what the word ‘charge’ means as a matter of plain and ordinary usage.

21. This, I think, shows that there is no necessary inconsistency in the law providing that a person remains ‘charged’ with an offence of which they have been ‘convicted’ and thus no reason why the plain and ordinary meaning of the term ‘charged’ assumes that there has been no conviction (although, it must again be stressed, the legislative context may in many cases demand that very

conclusion). This is confirmed in the cases: ‘[a] charge is simply what is narrated in the complaint … and I think the Court is entitled to take the view that a person is charged with an offence while the complaint charging him remains before the Court, notwithstanding the tendering of pleas’ (Herron v. McCrimmon [1969] SLT 37); there will be cases in which ‘the only feasible interpretation of “charged with an offence” is an expansive one which includes both the pre-conviction and post-conviction periods’ (R v. MacDougall [1998]

3 SCR 45 at para. 11 (per McLachlin J.)). Clearly, whether this means that a person remains ‘charged’ until sentenced, or until all appeal avenues are exhausted will depend on the purpose and context of the legislation in issue. That being so, it seems decidedly incongruous to describe a person in an appeal process in which they are both entitled to the presumption of innocence and in which the prosecution must assert and prove the case against them as a person who is ‘convicted’ but not ‘charged’, just as it is less than consistent to say in the context of an appeal process in which any prior conviction is simply irrelevant to the substantive findings the Court must make on the appeal, that a person is not ‘charged’ with an offence because they stand for the time being convicted of it.

22. In his careful and persuasive oral submission, Mr. Dwyer SC stressed that the defendant was, once the District Court Judge had determined the case before him, a convicted person, and that he remained as such when the appeal came before the Circuit Court. He noted that it is the accused who is dominus litis in the appeal, and that if he did not prosecute it, it would be struck out and the District Court order confirmed. He attached particular importance to the following statement of Lavery J. in Attorney General v. Mallen [1957] IR 344 at p. 352, made in reference to an appeal from the District Court to the Circuit Court:

‘The appeal is a true appeal though by way of re-hearing and is not a re-trial except in form. The defendant appealing comes before the Circuit Court as a convicted person. He does not rid himself of the conviction by serving notice of appeal. He is not called on to plead and his task is to show, if he can, that the conviction was wrong in whole or in part. This situation is not altered by the circumstance that there is a re-hearing.’ (emphasis added)

23. In that case the accused appeared in the District Court to answer a number of summonses arising from his driving of a motor vehicle at a specified location on a specified date. One summons charged an offence of dangerous driving contrary to s. 51 of the Road Traffic Act 1933, while another charged him with driving without exercising reasonable consideration for other persons and traffic using that place contrary to s. 50 of the same Act. He was convicted by the District Court of the dangerous driving charge while the charge of driving without reasonable consideration contrary to s. 50 was dismissed. Under s. 51(3) of the Road Traffic Act 1933 in a prosecution for an offence under s. 51(1), a conviction could be imposed under s. 50 without any need for a separate charge. The accused appealed against the conviction but sought to raise a plea that by reason of his acquittal by the District Court for the lesser offence, the prosecution for dangerous driving was barred. He contended that the ingredients of the offence to be proved under s. 51 were such that they necessarily supported a conviction under s. 50 and, thus, that the defendant having been acquitted of an offence under s. 50 could not be tried on the same evidence for an offence charged under s. 51.

24. This – ingenious – argument was, I think, unsurprisingly rejected. The acquittal of the accused on the lesser offence followed from his conviction on the s. 51 charge: it would not have been fair to impose a conviction on the s. 50 charge having convicted him of the dangerous driving offence. Aside from everything else, s. 51(3) of the Road Traffic Act 1933 specifically provided that on a prosecution for an offence under s. 51 the accused person may ‘if not convicted of such an offence’ be convicted of an offence under s. 50. This would have made it difficult to argue that convictions for both offences could ever have been imposed for the same event. Given that the acquittal on the s. 50 charge was therefore only because of the conviction on the more serious and different charge, it could not sensibly operate as a bar to the prosecution of the charge under s. 51 when the s. 51 conviction was appealed by the defendant.

25. I think that a Court analysing this problem today would conclude that having been convicted under s. 51 and having appealed that decision, the accused put himself in the same jeopardy of a conviction under s. 50 on appeal as he had been at the first trial and, to that extent, there was no basis on which res judicata would apply, irrespective of what the District Judge had done with the s. 50 charge. Or to put it another way, by appealing a conviction under s. 51, the accused impliedly admitted the jurisdiction of the Circuit Court to substitute its own order for that of the District Court, including a conviction under s. 50. This is how the outcome in Mallen can be reconciled with the decision in O’Leary v. Cunningham [1980] IR 367 (to which I will return below) where a plea in bar was successfully raised in an appeal to the Circuit Court against a conviction by the District Court where there was no statutory power vested in the Court to substitute an alternative charge. Were the position otherwise, the confirmation by Kenny J. in O’Leary v. Cunningham that the Circuit Court, on appeal from the District Court, enjoyed the same power as the District Court to impose a conviction for careless driving in a prosecution for dangerous driving, would have been wrong, given that every conviction for dangerous driving implies that the available alternative and lesser charge is not being imposed.

26. All of this, it should be said, is aside from the fact that – by definition – the two offences were quite distinct: as the judgment of Lord Morris in Connelly v. DPP [1964] AC 1254 at p. 1306 made clear, a plea of autrefois acquit or convict arises only where a person has been charged with an offence ‘which is either the same, or is substantially the same, as one in respect of which he has been acquitted or convicted or as one in respect of which he could have been convicted.’ That statement of the law (which post-dates the decision in Mallen) was approved by Kenny J. in O’Leary v. Cunningham.

27. In any event, in the passage from the judgment of Lavery J. (with whom Maguire CJ and Kingsmill Moore J. agreed) quoted above and upon which the defendant relied here, the Judge was doing no more than explaining his view that following an appeal from the District Court to the Circuit Court, the conviction or order retained its essential character as an order of the District Court. This followed from Lavery J.’s analysis of the development of that jurisdiction from the provisions of the Petty Sessions (Ireland) Act 1851, s. 24(6) of which had provided that the power of the Quarter Sessions on appeal from petty sessions was to ‘confirm, vary or reverse’ the order appealed against. The point being made was that it followed from the nature of the appeal thus understood that a plea in bar could not be made before the Circuit Court in circumstances where it was not made and could not have been made before the District Court (hence the Court taking some care to specify that the conviction under s. 51 preceded the dismissal of the s. 50 charge – p. 351). Thus Lavery J. noted that it could not be said that the matter was res judicata when the District Judge convicted, begging the question of how it could become res judicata when his decision was appealed (at p. 353). That reflected the argument advanced by counsel for the Attorney General, who had contended before the Circuit Court that the defendant could not be in a better position on the appeal than he had been in the District Court when he pleaded not guilty to the charges (at p. 347). This was why Lavery J. referred to the fact that the accused was not called upon to plead in the appeal. In point of fact, the decision in O’Leary v. Cunningham would suggest that this aspect of Lavery J.’s reasoning was incorrect and that it is possible to raise a plea in bar or advance an objection to the same effect in a Circuit Court appeal even though that would not have been possible at the first trial in the District Court.

28. Thus understood, the decision of the Court in Attorney General v. Mallen did not in any sense depend on whether the accused was properly viewed as ‘charged’ nor upon where the burden of proof in the prosecution lay. The case, accordingly, cannot be viewed as authority for the proposition that a person convicted by the District Court but who appeals that decision, is incapable of being characterised as ‘charged with’ the offence in the course of the appeal. Insofar as Lavery J. suggested that the burden was in some sense on the accused in the course of an appeal of this kind to ‘show … that the conviction was wrong in whole or in part’ this was, as my consideration of the cases addressed above demonstrates, an error which cannot be supported. These comments are properly viewed as being by way of dictum and this erroneous statement does not detract from the correctness of the conclusion in the case. The law is clear, and was most recently correctly described by Barr J. in the course of his judgment in Conlan v. DPP [2021] IEHC 653 at para. 40 – a person who appeals a conviction from the District Court to the Circuit Court is entitled to the presumption of innocence.

29. That being so, I find it both unsurprising and correct that in The State (McLoughlin) v. Judge Shannon Davitt J. stressed that where a defendant takes an appeal against the decision of a District Justice in a criminal case he impliedly admits the jurisdiction of the Circuit Court to substitute its own order for that of the District Court, and that in O’Leary v. Cunningham at p. 377 Kenny J. assumed that powers of substitution phrased by reference to persons ‘charged’ with offences could be exercised by the Circuit Court in an appeal from a conviction in the District Court. While, as counsel observed, the point was not argued in, and the observations were not central to, the outcome of O’Leary v. Cunningham (to which I will return) it is hard not to be struck by just how obvious and fundamental the error in the following statement of Kenny J. would be if the argument advanced by the defendant here was well-founded:

‘It is now established that on the hearing of an appeal from the District Court, the Circuit Court has power to vary the order made by the District Justice: The State (McLoughlin) v. Shannon. He also has power to substitute a conviction of a different offence to that on which the defendant was convicted in the District Court when such substitution is authorised by statute or by the common law. Examples of this are found in s. 44 of the Larceny Act, 1916, under which an accused charged with robbery may be convicted of an assault with intent to rob, and in s. 53, sub-s. 4, of the Road Traffic Act, 1961, under which an accused charged with dangerous driving may be convicted of driving without due care and attention.’ (emphasis added)

30. Of course, the Court might be entitled to interpret s. 5(6) in the way contended for by the defendant were it possible to conclude that by construing ‘charged’ as excluding a person who had been convicted of an offence would give effect to a legislative intention that could be divined from considerations of context, or purpose. Similarly, it is arguable that the double construction rule could be deployed to the same end. Here, three points, reflecting in part the judgment of the Court of Appeal, were emphasised by the defendant.

31. First, he stresses that the legislative provisions governing appeals to the Court of Appeal from convictions on indictment confer a specific and express power to substitute for a verdict of guilty of some other offence (s. 3(1)(d) Criminal Procedure Act 1993) which, it is suggested, underscores the absence of similar provisions in the case of an appeal from the District Court to the Circuit Court. I do not see that this argument has merit. An appeal from the Circuit Criminal Court or Central Criminal Court to the Court of Appeal is fundamentally different from that provided for in s. 18 of the Courts of Justice Act because it is not a ‘true’ re-hearing, and because the fact of, and basis for, the appealed conviction is at the centre of the process. The prosecution does not have to prove the charge. Instead, the function of the appellate Court is ‘to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the Court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact’ (The People (DPP) v. Madden [1977] IR 336 at p. 340). It makes sense in that context that the legislature would conclude that the power to substitute be expressly stipulated. There is no particular reason to confer an express power of conviction of an alternative offence where the appeal is truly a complete rehearing and, at least presumptively, the Circuit Court enjoys the same powers as the Court of first instance.

32. Second, the defendant complained of what he contended was the unfair consequence that would follow were the prosecutor’s case well-founded. Substantively, that alleged unfairness comes in the form of the fact that this construction, if correct, would mean that an accused person could be convicted of an offence on appeal to the Circuit Court without having been convicted of that charge at first instance and, therefore, would not enjoy any right of appeal against that conviction. Citing McCabe v. Ireland [2014] IEHC 435, [2015] IECA 156, [2015] 3 IR 95, the defendant contends that a constitutional reading of s. 5(6) requires that an appeal would lie to the Court of Appeal against a

decision of the Circuit Court in the circumstances of this case, but stresses that this is expressly prohibited by s. 18(3) of the Courts of Justice Act, 1928. Thus, the argument runs, the way of avoiding this unfairness is to construe s. 5(6) as preventing the Circuit Court from convicting on an alternative charge.

33. In McCabe v. Ireland the High Court (Hogan J.) concluded that it would be contrary to Article 34.3.4° and Article 40.1 of the Constitution for the legislature to enable a Circuit Court Judge on hearing an appeal against conviction for one offence to revoke a suspended sentence imposed by another Judge, in circumstances in which there is no appeal against that decision. Central to that

conclusion was the fact that had the reactivation occurred at first instance in the District Court, the decision would have been capable of appeal to the Circuit Court. Hogan J. explained (at para. 17) that the denial of the right of appeal to one category of litigant simply because of the essentially accidental fact that the suspended sentence which has been reactivated was imposed by the Circuit Court on appeal rather than by the District Court, had ‘the inherent capacity to work a considerable injustice’. That conclusion prompted Hogan J. to grant an order declaring that it would be unconstitutional to give effect to the reactivated sentence in the absence of a statutorily conferred right of appeal against the

decision of the Circuit Court to reactivate the sentence. The Court of Appeal decided that in fact there was a right of appeal to it against the revocation

decision, and therefore did not address itself to Hogan J.’s analysis.

34. In understanding what was decided by the High Court in McCabe v. Ireland, and in explaining why the decision in that case is not relevant to the issue in the instant proceedings, it is important to stress that Article 34.3.4° of the Constitution, in providing that the Courts of first instance shall include Courts of local and limited jurisdiction ‘with a right of appeal as determined by law’ does not necessarily confer a constitutional right of appeal against all decisions of the District or Circuit Court. That was decided by Finlay J. in The State (Hunt) v. O’Donovan [1975] IR 39, and indeed that conclusion was restated by Hogan J. in the course of his judgment in McCabe v. Ireland (at para. 33). Observing that it was unnecessary to decide whether Article 34.3.4° requires the existence of a right of appeal against sentence on the part of an accused in every single case, Hogan J. concluded as he did because, at the very least, the denial of a right of appeal ‘requires to be objectively justified’ (para. 37). That objective justification was lacking in the case of the provisions under consideration in that case: some litigants would have a right of appeal, while others would not, the differentiation between those who did and those who did not have that right was based on accidental and essentially random factors and, in any event, seemed to undercut the legislative intention that, in fact, there would be a universal right of appeal.

35. In this case, by contrast, the defendant was tried in the District Court on a charge under s. 5(4) of the RTA. The fact of the power to substitute offences meant that he was faced not simply with the jeopardy of conviction under s. 5(4), but also in respect of the closely related and alternative offence under s. 4(4). There could be no question of that power of substitution being other than constitutionally regular: it reflects the fact that the offences of drunk driving and drunk in charge are closely related and may, in any given case, be only finely separated from each other and even then often on only highly technical grounds (The Director of Public Prosecutions v. O’Neill [2011] IESC 7 at para. 24). The defendant had a full right of appeal against the outcome of that trial but, because that appeal represented a complete re-hearing, he faced the same jeopardy in the Circuit Court as he had in the District Court.

36. To say that the defendant had a right of further appeal because the Circuit Court might impose a conviction for an offence of which he had not been convicted in the District Court is to confuse a right of appeal against a decision in a given lis, with a right to appeal every adverse finding on the various issues that might arise in the course of a unitary trial. The fact of powers of cross-appeal and notices to vary in civil litigation shows that appellate Courts may, and regularly do, reach decisions adverse to a party that were not made in the Courts below. A right of appeal against each such ‘first-time’ finding would render the appeal process never ending. Indeed, were the argument well-founded it would mean that the Circuit Court could not possibly have the power to increase sentence in a District Court on appeal: the sentence imposed on appeal may be quite different and more severe from that rendered at first instance. The decision in The State (Aherne) v. Cotter makes it clear that this may quite lawfully occur, even though there is no onward right of appeal against what may well be the first custodial sentence imposed on the accused.

37. Thirdly, the defendant contends that by virtue of being alternative verdicts, conviction of an offence under s. 5(4) in the District Court was an acquittal of the defendant of any offence under s. 4(4). Therefore, he says, the defendant is entitled to raise a plea in bar in respect of s. 4(4), as he was in jeopardy of conviction under s. 4(4) in the District Court and was acquitted, and that fact, the argument runs, points to the conclusion that the Oireachtas did not intend the power of convicting on an alternative charge to extend to the Circuit Court.

38. In this context the defendant relies on the decision in O’Leary v. Cunningham. The defendant in that case was charged with two offences – robbery of a sum of money contrary to s. 23 of the Larceny Act 1916 and of having received that sum knowing it to be stolen contrary to s. 33 of the same Act. He was convicted of the receiving charge, and the District Judge made no order on the robbery charge. The defendant appealed, the evidence heard by the Circuit Court disclosing that he had actively participated in the robbery. If he had taken part in the robbery he could not be convicted of the receiving charge (The People (Attorney General) v. Carney [1955] IR 324) and he argued that he could not be convicted of the robbery charge because he had been acquitted of that charge by the District Court. This Court agreed. It found that the effect of the District Judge making no order on the robbery charge was equivalent to an acquittal, and that having been acquitted on that charge by the District Court, the accused could not be convicted of that same offence by the Circuit Court on appeal.

39. Central to the reasoning of the Court in that case was the fact that the defendant had actually been acquitted by the District Court of the only relevant offence with which, on appeal, he could have been convicted. His position was thus different in three critical and related respects from the position of the defendant in the instant proceedings. Here, the defendant was never charged with an offence under s. 4(4), he was never acquitted of an offence under s. 4(4), and (critically) in O’Leary v. Cunningham there was no statutory provision which allowed any Court to find an accused guilty of robbery when he has been charged with receiving stolen goods (see the judgment of Kenny J. at p. 377). This is, of course, in marked contrast to the position in the present case (and, it should be said, the position in Mallen). Indeed, the judgment of Kenny J. proceeds on the basis that the outcome of the case would have been different had there been a power to substitute a verdict of guilty of robbery when an accused is charged with receiving stolen goods (see p. 377-378) and, as I have previously observed, he assumed that where statutory provisions allowed an accused ‘charged with’ one offence to be convicted of another, the Circuit Court in hearing an appeal from a District Court conviction, had the same power of substitution. Thus understood, the power of substitution constitutes a legislative authorisation for what might otherwise in some circumstances be prohibited by the common law – a conviction by the Circuit Court of an offence of which the accused might have been but was not charged, and for which the accused has been acquitted by a Court of competent jurisdiction. As I have earlier noted, the fact of the close connection between the offence charged and the offence substituted justifies this and, correctly, it was never suggested in the course of this appeal that the legislature might not bring this about. As the facts of this case show, it would be a very strange state of affairs if it could not.

40. In so concluding I am conscious that it might be said that if legislative authorisation is to be afforded for trial on an offence of which an accused person has been inferentially acquitted, this must be clearly stipulated and that by reason of a potential ambiguity around the meaning of the term ‘a person charged’ this had not, in fact, been provided for by the Oireachtas with the necessary certainty. However, I do not think that s. 5(6) when viewed in context is ambiguous. For the reasons I have already outlined, it uses a familiar verb with a firmly established legal meaning. When that meaning is matched against what happens when a person appeals to the Circuit Court against a conviction imposed by the District Court, it is to my mind clear that the accused, although convicted, remains a person who is charged with an offence.

41. To this extent, while the Court of Appeal applied the correct methodology to the construction of s. 5(6), it chose the wrong starting point. It is not necessarily the case that a person who has been ‘convicted’ of an offence cannot at the same time be said to be ‘charged’, and it is appropriate to construe the verb ‘charged’ as encompassing a person who has been convicted of an offence when the word is used in connection with a process which requires the prosecution to assert and prove an offence against an accused who enjoys the benefit of the presumption of innocence and in which the fact of conviction is relevant only to the jurisdiction of the Circuit Court to hear the appeal. It is not necessary to interpolate the phrase ‘who has been charged’ to so conclude.

42. The conclusion reached by the Court of Appeal meant that it did not engage directly with the specific question raised by the Circuit Court Judge in the Case Stated, namely whether it would be unfair to impose a conviction under s. 4(4) for the first time on appeal, given that this would be a new conviction from which there would be no appeal. However, I have addressed the substance of this concern earlier in this judgment. There is no necessary unfairness in imposing such a conviction for the first time on appeal in a context in which the defendant was, by reason of the provisions of s. 5(6) of the RTA at all times at risk of such a conviction, and in circumstances in which the offences provided for in ss. 4(4) and 5(4) of the RTA are closely related. The fact that the offences are mutually inconsistent does not change this: a right of appeal implies a right of appeal against the determination of a lis, not a right of appeal against every finding on every issue that might arise in the course of determining those proceedings. In this regard it is to be stressed, as it was by Herbert J. in the course of his judgment in Director of Public Prosecutions v. Kenny [2006] IEHC 330, that if a Court hearing a case in which it is proposed to introduce an alternative verdict concludes that doing so will introduce an irremediable prejudice, it can decline to consider the verdict and acquit the accused. However, the fact that the accused has no right of appeal against the alternative verdict is not, itself, such a prejudice.

43. For these reasons I would allow this appeal, and substitute for the answers to the questions in the Consultative Case Stated the following:

1. No.

2. No.