Donal O Siodhachain (appellant) v Garda B. Coy, Garda M. Landers, Superintendent Waldron, Chief Superintendent Long, the Director of Public Prosecutions, District Judge Mangan and the Minister for Justice (respondents).

Judicial Review - Certiorari - Summons - Typographical error - Defendant's belief that proceedings could not be heard in his absence Defendant not present - Whether court may order amendment of summons in defendant's absence - Whether matter may be heard in defendant's absence.

The Supreme Court (before the Chief Justice, Mr Justice Hamilton; Mr Justice O'Flaherty, Mrs Justice Denham); judgment delivered 19 January 1996.

A TYPOGRAPHICAL error, relating to the registration number of a motor vehicle, in a summons does not go to the substance of the charge or the alleged offence; accordingly a court may make the appropriate amendment to the summons and proceed to determine the matter in circumstances where the defendant has chosen not to attend court in the mistaken belief that such amendment may not be made in his absence.

The Supreme Court so held in dismissing the appellant's appeal against the refusal by the High Court of orders of certiorari by way of judicial review quashing his conviction for road traffic offences.

Barbara Seligman BL for the appellant; Aindrias O Caoimh SC and Diarmaid McGuinness BL for the respondents.

THE CHIEF JUSTICE said that the appellant was appealing the refusal of his application in the High Court for relief by way of judicial review.

The appellant had sought certiorari of certain convictions relating to his alleged use of a mechanically propelled vehicle on two separate occasions. Two identical sets of summonses in respect of the matters were issued by the first and second respondents and alleged offences including driving without an approved policy of insurance, failing to produce an insurance certificate, driving without a driving licence, failing to produce a driving licence when demanded, use of a mechanically propelled vehicle while excise duty remained unpaid and driving a vehicle with two excess worn tyres.

As far as the first set of summonses was concerned, the appellant was convicted by the sixth respondent of the offence of driving without an approved policy of insurance and sentenced to six months imprisonment and disqualified from driving for a period of five years. The other offences were judged proven and taken into consideration by the sixth respondent in determining the penalty for the no insurance offence.

With respect to the second set of summonses, the appellant was convicted in respect of driving without tax, failing to display a licence, failing to display an insurance disc and driving the motor vehicle when there were two excess worn tyres thereon. He was fined a total of £400 for these offences.

The Chief Justice said that, though he had been aware that the cases were listed for hearing on 30 September 1992, the appellant had decided not to attend the court. In an affidavit, sworn for the purpose of the present proceedings, the appellant had stated that it had not been convenient for him to attend on that date and he had arranged for a person to attend on his behalf in order to give a letter to the judge when the cases were called. The appellant further averred that the specific cases were not called but that two other cases, in respect of which he had received neither a summons nor any notification, were called.

In a second affidavit, sworn by the person who attended the court on behalf of the appellant, it was averred that her sole purpose in attending on that date was to hand in the aforementioned letter to the judge or, in the event that the cases were adjourned to note the time of such adjournment. She went to say that the cases that were dealt with concerning the appellant referred to a motor vehicle, registration number 969 MIW whereas she had specifically been asked to hand in the letter for cases dealing with a motor vehicle, registration number 969 MIU.

Accordingly, as she was not a solicitor with a right of audience on behalf of another, she had simply taken a thorough note of the evidence offered, the convictions and the sanctions imposed. The Chief Justice said that the summonses issued by the first respondent had contained a typographical error in that the registration number was stated incorrectly to be 969 MIW rather than the correct number, 969 MIU. No such error was present in the summonses issued by the second respondent. An application to amend the summonses to reflect the correct registration number had been made by the first respondent and was granted by the presiding judge, the sixth respondent. In addition, the summonses dealt with by the sixth respondent were those issued by the first and second respondents and not new offences as suggested by the appellant's affidavits.

The summonses had been issued in accordance with the procedures laid down by the Courts (No 3) Act 1986 and, on the date that they were first due to be heard, had been adjourned. On the next occasion a letter was received from the appellant requesting a further adjournment; this request was granted and the appellant was advised of the new date in a letter sent to him by the gardai. The Chief Justice said that, even though he was aware of the date for hearing, the appellant had chosen not to attend court in the mistaken belief that he could not be convicted by reason of the mistakes contained in the first respondent's summonses with respect to the registration number of the motor vehicle. In the view of the Chief Justice, this typographical error did not go to the substance of the charges against the appellant; accordingly, the first respondent had been entitled to seek an amendment and the sixth respondent had been entitled to grant one.

Noting that the appellant had sought to introduce allegations of police harassment, conspiracy and perjury, the Chief Justice said that the present proceedings were concerned solely with the sets of summonses issued by the first and second respondents and dealt with by way of amendment by the sixth respondent; no other issue was relevant to the instant application. The Chief Justice said that, at the impugned hearing in the District Court, there had been no breach of fair procedures and, therefore, the appeal would be dismissed.

MR JUSTICE O'FLAHERTY and MRS JUSTICE DENHAM agreed with the judgment of the Chief Justice.

Solicitors: Harold Waterman & Co. (Dublin) for the appellant; Chief State Solicitor for the respondents.