Court rejects accused's claim that Garda must offer guarantee certificate option before applying insurance presumption.

THE DISTRICT COURT DUBLIN METROPOLITAN DISTRICT

THE DIRECTOR OF PUBLIC PROSECUTIONS PROSECUTOR

- AND - DAVID O’NEILL ACCUSED Judgment delivered by Judge Brian O’Shea at Dublin District Court on the 21st day of February 2019

1. This is an application for a direction at the close of the prosecution case. The accused is summonsed before the court in relation to having no insurance contrary to section 56(1)

and (3) of the Road Traffic Act 1961 as amended and failure to produce a certificate of insurance or exemption contrary to section 69(1) of the same Act.

2. The evidence establishes that the accused was driving a mechanically propelled vehicle in a public place. It also establishes that the prosecuting garda demanded of the accused the production of a certificate of insurance or exemption at a garda station of his choice within ten days. The accused nominated a garda station but did not produce the documents.

3. The ground upon which the direction is sought is that the accused was not given the option by the garda of producing a certificate of guarantee as an alternative to the certificates demanded and therefore the garda cannot properly rely upon the presumption that if the documents are not produced then the vehicle is being used contrary to the law.

4. Subsection 56(1) of the Road Traffic Act 1961 sets out the obligation to be insured or guaranteed. Subsection 56(3) provides that it is an offence not to comply with this obligation. Subsection 56(4) provides: “Where, in a prosecution for an offence under this section, it is shown that, a demand having been made under section 69 of this Act (a) the person of whom the demand was made refused or failed to produce a certificate of insurance, certificate of guarantee or certificate of exemption then and there, or (b) such person, having duly produced such certificate consequent upon the demand, refused or failed to permit the member of the Garda Síochána to whom such certificate was produced to read and examine it, it shall be presumed, until the contrary is shown by the defendant, that the vehicle was being used in contravention of this section.”

5. Subsection 69(1) of the 1961 Act sets out the garda power to demand certain documents and the offence arising from a failure to produce those documents. It provides: “(a)

Where a member of the Garda Síochána has reasonable grounds for believing that a mechanically propelled vehicle has been used in a public place on a particular occasion (including a case in which the member has himself observed the use) and that the actual user of the vehicle on that occasion was a particular person, the member may, at any time not later than one month after the occasion, demand of the person the production of either a certificate of insurance or a certificate of guarantee or a certificate of exemption in respect of the use of the vehicle by the person on the occasion and, if the person refuses or fails to produce any such certificate then and there, he shall, unless within ten days after the day on which the production was demanded he produces such certificate in person to a member of the Garda Síochána at a Garda Síochána station named by the person at the time at which the production was demanded, be guilty of an offence.”

6. Paragraph 69(1)(b) provides: “In a prosecution for an offence under this subsection, it shall be presumed, until the contrary is shown by the defendant, that he did not, within ten days after the day on which the production was demanded produce the certificate in person to a member of the Garda Síochána at a Garda Síochána station named by the defendant at the time at which the production was demanded.” The words “under this subsection” dictate that the presumption of non-production only applies to an alleged offence pursuant to section 69(1). There is no provision to allow the presumption of nonproduction in relation to proving an offence contrary to subsection 69(1) to be transferred or used in relation to proving an offence contrary to section 56.

7. There are essentially two methods of proving that a person has committed an offence contrary to section 56. Firstly by means of evidence of an admission against self-interest made in circumstances where there is no want of basic fairness, and secondly by invoking the presumption set out at subsection 56(4).

8. The Supreme Court decision in AG v Shivnan [1968] IR 369 is relevant. In that case the accused was facing the same charges as the accused in the instant case. A garda demanded of him the production of a certificate of insurance. The accused did not produce it there and then. The garda told the accused that he could produce the said certificate of insurance within the statutory period. He failed to produce it. No evidence was tendered by the accused. A case was stated to the High Court and the decision of Murnaghan J was appealed to the Supreme Court.

9. In Shivnan the prosecutor sought to rely on the presumption at subsection 56(4) in respect of the offence contrary to subsections 56(1) and (3). He also sought to rely on the presumption at paragraph 69(1)(a) in respect of the offence contrary to section 69(1). Both presumptions are dependent upon a lawful demand being made in accordance with subsection 69(1). Counsel for the accused argued that section 56 imposes an obligation on a motorist to be insured or guaranteed or exempted, and therefore must have either a certificate of insurance or guarantee or exemption. He argued that the garda must demand all three if he is to avail of the presumption created by section 56(4) and to lay a foundation for a charge contrary to subsection 69(1). The prosecutor submitted that section 69(1) could be interpreted as meaning a demand for any one of the three certificates and that an offence was committed by a failure to produce any one of the three.

10. O’Dalaigh CJ in the majority (four-judge court with Fitzgerald dissenting) at page 378 to

379 of the judgment) concluded: “A member of the Garda, acting under s. 69, must demand of the motorist, or, to use the language of courtesy, ask the motorist to produce "a certificate of insurance or a certificate of guarantee or a certificate of exemption. The statute uses the disjunctive "or" rather than the conjunction "and" not because it authorises the Garda to ask for one only of the three certificates specified but because the substantive requirement of law contained in s. 56 is complied with by having any one of the three.”

11. That is not the end of the matter however. The decision in AG v Shivnan was delivered on 13 October 1966. It related to a factual matrix of events that occurred on 27 November 1963, during the course of which the relevant demand was made. The Road Traffic Act 1968 came into force on 16 July 1968. Section 53 of the 1968 Act states: “The provisions of Part VI of the Principal Act relating to an approved guarantee shall cease to have effect.” Part VI of the 1961 Act deals with “Compulsory Insurance of Mechanically Propelled Vehicles”.

12. To summarise the correct legal position.

a) An admission against self-interest made in circumstances of fairness is sufficient to prove an offence contrary to section 56;

b) Once a lawful demand is made for the production of a certificate of insurance or exemption and there is evidence that neither is produced then there is a presumption that section 56 has been contravened;

c) Once a lawful demand is made for the production of a certificate of insurance or exemption there is a presumption of non-production in relation to proving an offence contrary to subsection 69(1);

d) The presumption of non-production applies in relation to an alleged offence contrary to subsection 69(1) but not an alleged offence contrary to section 56.

e) The demand for a certificate of guarantee no longer applies.

13. Turning to the instant case. With regard to the alleged offence pursuant to section 56, the garda gave uncontested testimony that he demanded production by the accused of either a certificate of insurance or exemption at a garda station of his choice within ten days. That demand was lawful in that it complied with Shivnan post section 53 of the 1968 Act. The testimony gives rise to an evidential presumption under subsection 56(4)

that the vehicle was being used in contravention of subsection 56(1). The garda also testified that the documents were not produced. This evidence is an essential proof as the presumption of non-production only applies to an alleged section 69(1) offence.

14. With regard to the alleged offence contrary to section 69(1) the same lawful demand is relied upon by the prosecutor. Testimony that the documents were not produced was adduced even though it was unnecessary.

15. The application is without merit and is therefore refused.