Ashley McGonnell, Oliver Quinlan and John Purcell v Attorney General and DPP

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date16 September 2004
Neutral Citation[2004] IEHC 312
CourtHigh Court
Docket Number[6524P/2002]
Date16 September 2004

[2004] IEHC 312

THE HIGH COURT

[6524P/2002]
HC 312/04
[551 P/2002]
[1611P/2002]
McGONNELL & QUINLAN & PURCELL v. AG & DPP

BETWEEN

ASHLEY McGONNELL
PLAINTIFF

AND

THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
DEFENDANTS

AND

OLIVER QUINLAN
PLAINTIFF
THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
DEFENDANTS

AND

JOHN PURCELL
PLAINTIFF

AND

THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS
DEFENDANTS

Citations:

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S21

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13(1)(a)

ROAD TRAFFIC ACT 1994 S17(1)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S17(2)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S18

ROAD TRAFFIC ACT 1961 S26(4)

ROAD TRAFFIC ACT 1994 S26

CONSTITUTION ART 40

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S21(1)

ROAD TRAFFIC ACT 1994 S17(1)(b)

MAHER V AG 1973 IR 140

WHELAN V JUDGE KIRBY & DPP UNREP SUPREME 1.3.2004

ROAD TRAFFIC (AMDT) ACT 1978 S21(3)

WALSHE, STATE V MURPHY 1981 IR 275

ROAD TRAFFIC (AMDT) ACT 1978

MURPHY V DPP 1989 ILRM 71

BOWES & MCGRATH V DPP 2003 2 IR 25

BRADDISH V DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

DUNNE V DPP 2002 2 IR 305 2002 2 ILRM 241

ROAD TRAFFIC ACT 1988 S8

CRACKNELL V WILLIS 1988 1 AC 450

ROAD TRAFFIC ACT 1972 TRANSPORT ACT 1981

HUGHES V MCCONNELL 1986 1 AER 268

ROAD TRAFFIC ACT 1988 S8(6)

RICHARDSON V DPP 2003 EWHC 359

ROAD TRAFFIC ACT 1988 S5(1)(a)

ROAD TRAFFIC OFFENDERS ACT 1988 SCHEDULE 2

ROAD TRAFFIC ACT 1988 S7(4)

ROAD TRAFFIC ACT 1988 S8(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

CONSTITUTION ART 40.3.1

HEANEY V IRELAND 1996 1 IR 580 1997 1 ILRM 117

K (D) V CROWLEY & ORS 2002 2 IR 744

ROAD TRAFFIC ACT 1961 S47 (SOUTH AUSTRALIA)

ROAD TRANSPORT (SAFETY & TRAFFIC MANAGEMENT) ACT 1999 PART 2 (WALES)

ROAD TRANSPORT (SAFETY & TRAFFIC MANAGEMENT) ACT 1999 S14 (WALES)

ROAD TRANSPORT (SAFETY & TRAFFIC MANAGEMENT) ACT 1999 S15(1) (WALES)

ROAD TRANSPORT (SAFETY & TRAFFIC MANAGEMENT) ACT 1999 S18(1) (WALES)

ROAD TRANSPORT (SAFETY & TRAFFIC MANAGEMENT) AMDT (BLOOD SAMPLING) ACT 2000 SCHEDULE 10 (WALES)

ROAD SAFETY ACT 1986 PART 5 (VICTORIA AUSTRALIA)

ROAD SAFETY ACT 1986 S55 (VICTORIA AUSTRALIA)

ROAD TRAFFIC ACT 1974 S66 (WESTERN AUSTRALIA)

ROAD SAFETY (ALCOHOL & DRUGS) ACT 1970 DIVISION 2 (TASMANIA AUSTRALIA)

CALIFORNIA VEHICLE CODE 2004 (USA)

VEHICLES & TRAFFIC TITLE 42 (COLORADO USA)

REGULATION OF VEHICLES & TRAFFIC ART 4 (COLORADO USA)

ALCOHOL & DRUG OFFENCES PART 13 (COLORADO USA)

DPP V CURRY 2002 3 IR 131

ROAD TRAFFIC ACT 1994 (S17) REGS 1999 SI 326/1999

ROAD TRAFFIC ACT 1994 S3

DPP V SYRON 2001 2 IR 105

CALIFORNIA V TROMBETTA 1984 467 US 479

KILLIAN V UNITED STATES 1961 368 US 231

FEDERAL CONSTITUTION (USA)

UNITED STATES V AGURS 427 US 109

ARIZONA V YOUNGBLOOD 1988 488 US 51

REGINA V COOMARASWAMY 1976 RPR 21

THOMAS V HENDERSON 1983 RPR 293

GORDON V THORPE 1986 RTR

HOBBS V HURLEY UNREP COSTELLO 10.6.80 1980/6/1106

EMPLOYMENT EQUALITY BILL 1996 S63

CONSTITUTION ART 26 OF THE EMPLOYMENT EQUALITY BILL, RE 1996 1997 2 IR 321

EMPLOYMENT EQUALITY BILL 1996 S63(3)

ROAD TRAFFIC ACT 1994 S19(3)

ROAD TRAFFIC (AMDT) ACT 1978 S23(2)

CRACKNELL V WILLIS 1988 1 AC 450

ROAD TRAFFIC ACT 1972 S10(2)

ROAD TRAFFIC ACT 1961 S50(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6(3)

R V DONALDSON 1995 3 NZLR 641

BILL OF RIGHTS ACT 1990 (NEW ZEALAND)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

Abstract:

Constitutional law - Road traffic offences - Drink driving - Use of breath analysis machines - Evidence - Fair procedures - Onus of proof - Obligations of An Garda Síochána - Whether denial of fair procedures - Whether samples should be preserved - Road Traffic Acts, 1961-1994 - Bunreacht na hÉireann, 1937.

The plaintiffs all claimed similar reliefs relating to samples obtained by intoxilyzer and in one case by an apparatus known as an intoximeter/intoxilyzer. The intoxilyzer obtained concentrations of alcohol by analysis of specimens of breath. The specimens obtained had shown a concentration of alcohol in excess of that lawfully permitted and accordingly they were charged with offences under section 49 of the Road Traffic Act, 1961. Principally it was contended by the applicants that there was a wide and significant deviation in the measurements obtained, there was a difficulty in basing the measurements in micrograms and arrested persons were denied the possibility of having an sample independently sampled. In effect it was contended that by a combination of circumstances the applicants were being deprived of a reasonable opportunity to defend themselves which was in violation of the Constitution. Scientific evidence was tendered by experts on behalf of the prosecution and the defence.

Held by McKechnie J in dismissing the plaintiffs' cases. The expert evidence advanced on behalf of the plaintiffs with regard to the apparatus was not well-founded and the court could not accept that the machines were in any way flawed. The results of the specimens of the plaintiffs were therefore accurate and reliable. The overall system of taking the lower of the readings, making a 17.5% deduction from same as well as other safety features together with the expert evidence tendered meant that no constitutional nor legal rights of the plaintiffs were infringed. The cases were dismissed.

Reporter: R.F.

1

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 16th day of September 2004.

Background:
2

1. In each of the above joined cases, all of which were heard together, the relief claimed by the individual plaintiffs is identical, save as to date, and as appears from their respective statements of claim, is described as follows:-

3

(i) A declaration that the purported calculation of concentration of alcohol contained in the purported s. 17 statement of the 27 th January, 2001 lacks statutory foundation and is invalid.

4

(ii) A declaration that ss. 13, 17 and 21 of the Road Traffic Act, 1994are contrary to the provisions of Article 38.1 and Article 40.3 of the Constitution.

5

(iii) Further and other reliefs

6

(vi) Costs

7

2. The plaintiff, Ashley McGonnell, was arrested on 17 th September, 2000 pursuant to s. 49(8) of the Road Traffic Act, 1961and having been brought to Monaghan Garda Station was there required, by a member of An Garda Síochána who was of the opinion that the arrested person had consumed an intoxicant, to provide, two specimens of his breath under s. 13(1) (a) of the Road Traffic Act, 1994, (hereinafter referred to as the Act of 1994) by exhaling into an apparatus, known as "The Lion Intoxilyzer 6000", for determining the concentration of alcohol in the breath. Having duly complied with this statutory direction, the resulting reading of the first specimen showed 44 micrograms of alcohol per 100 ml of breath and in the case of the second sample showed 44 micrograms of alcohol per 100 ml of breath. Having disregarded the higher reading in accordance with s. 17(1) of the Act of 1994, the lower concentration, by virtue of this subsection "shall be taken into account" for the purposes of s. 49(4) of the Road Traffic Act, 1961(hereinafter referred to as the Act of 1961). Pursuant to s. 17(2) of the Act of 1994 this plaintiff was then supplied "with two identical statements automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus". These statements, which purely for convenience may be referred to as "the section 17 (2) certificate" indicated that for the purposes of the said section 49(4) of the Act of 1961, the relevant concentration of alcohol in this persons breath was, by reason of circumstances later described in this judgment, 36 micrograms of alcohol per 100 ml of breath. Since the permitted minimum within the law, as provided for by s. 49(4) of the Act of 1961, as substituted by s. 10 of the Act of 1994, is 35 micrograms of alcohol per 100 millilitres of breath the accused person was ultimately charged with an offence under s. 49 of the Road Traffic Act, 1961. That offence, in general terms can be described as driving a mechanically propelled vehicle in a public place whilst over the legal breath/alcohol limit. Pending the outcome of this challenge the said prosecution stands adjourned in the District Court.

8

3. The plaintiff, Oliver Quinlan, was similarly arrested on 26 th April, 2000 and brought to Pearse Street garda station in Dublin. There, under the said legislative provisions, he was required to provide two specimens of his breath, into a similar apparatus. The readings which resulted showed in the first instance a concentration of 89 micrograms of alcohol per 100 ml of breath with the second showing 83 micrograms of alcohol per 100 ml of breath. Having disregarded the higher reading, the s. 17(2) certificate, for the purposes of s. 49(4) of the Road Traffic Act, 1961, as substituted by s. 10 of the Act of 1994 stated that the relevant concentration was 68 micrograms of alcohol per 100 ml of breath. As with the first plaintiff, this individual was subsequently prosecuted under s. 49 of the Road Traffic Act, 1961with a similar offence. That District Court prosecution awaits the outcome of this case.

9

4. The third plaintiff John Purcell was arrested on 26 thFebruary, 2001 and at Tallaght Garda Station Dublin was required to comply with s. 13(l)(a) of the Act of 1994. On that occasion the apparatus in use was not the Lion Intoxilyzer 6000 but rather one known as the "Intoximeter EC/IR". The readings obtained showed respectively concentrations of 73 and 70 micrograms of alcohol per 100 ml of breath. The s. 17(2) certificate in this case,...

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1 books & journal articles
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