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17/09/2021

Leitrim Judge rules changing date on summons is not prejudicial

Leitrim Judge rules changing date on summons is not prejudicial

An application to change the date on a summons was accepted by Judge Kevin Kilrane who said it was not prejudicial to the defendant.
The case of drug driving before the court involved Christopher Gillen, 17 Devins Drive, Cranmore, Sligo who was charged with the offence on September 28, 2019 at Doon, Boyle, Co Roscommon.
The prosecution’s case had been heard last month and the case had been adjourned for both sides to make their arguments on that specific point.
On the last occasion, arresting officer, Garda Aisling O’Brien, detected the defendant driving at 133kph in a 100kph zone at 11.55pm on September 28, 2019.
She stopped him and spoke with him and said he was giddy and his eyes were dilated. She formed an opinion that he was under the influence of an intoxicant and he provided an oral specimen that showed positive for cannabis.
Mr Gillen was arrested and brought to Carrick-on-Shannon Garda Station where he was processed and provided a specimen of blood. The fine for speeding was paid.
John Anderson, solicitor, argued that the date on the summons, September 29, was incorrect and that the alleged offence took place on September 28.
He said there was no application by the State to amend the date and said it effectively prejudiced his client.
Inspector Emmet Treacy said the accused was stopped before midnight but the test was carried out on the 29th and he asked for the date to be amended.


When the case came back before the court last week, Mr Anderson again contended the date on the summons was incorrect.
Insp Treacy said Mr Gillen was stopped for speeding at 11.55pm on the 28th but the garda formed her opinion and arrested him at 12.23am on the 29th. Insp Treacy submitted case law that reasoned there was no prejudice in relation to the date on the summons.
Mr Anderson said the matter had been before the court six times. He said there was no evidence his client had been driving on the 29th and the State’s evidence was he was driving on the 28th.
Mr Anderson said to amend the date at such a late juncture would prejudice his client and he applied for the case to be dismissed.


Judge Kevin Kilrane said that prejudice cannot exist in a vacuum. He said there must be real prejudice such as excess alcohol in the breath and the prosecution seek a hearing stating excess alcohol in the blood. He said such a case would be prejudicial.
Judge Kilrane said if there can’t be prejudice in theory and prejudice must be shown to exist. He said the case boiled down to a bare technical point that someone who was driving at five minutes to midnight on the 28th but was not driving after midnight on the 29th, that the charge should relate to his driving before midnight rather than after it.
He said the courts were there to do justice between the parties and he said a point such as this couldn’t possibly be used to defeat a case that was put forward correctly.
He said he was going to amend the summons to read the correct date of the 28th.


Mr Anderson also raised the matter of delay in regard to the blood sample certificate taking three months to issue.
Judge Kilrane said he has previously heard evidence from a doctor in the Medical Bureau of the lengthy processes used and he could not find a delay was excessive in this case.
Judge Kilrane convicted and fined Mr Gillen €300 and disqualified him from driving for one year.

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