Brassil v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 03 July 2020
• Neutral Citation: [2020] IEHC 328
• Docket Number: [2019 No.294 J.R.]
• Court: High Court
• Date: 03 July 2020

BETWEEN

FRANK BRASSIL

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2020] IEHC 328

Mary Rose Gearty J.

[2019 No.294 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Conviction – Dangerous driving – Judicial review – Applicant seeking judicial review – Whether there was sufficient explanation for the procedural deficiencies in the case

Facts: The applicant, Mr Brassil, was charged with failing to provide a sample under s. 12 of the Road Traffic Act 2010, as amended and dangerous driving under s. 53 of the Road Traffic Act 1961, as amended. He was convicted in the District Court and appealed both convictions. The Circuit Court hearing included submissions as to the legality of the applicant’s detention insofar as it might affect the evidence supporting the offence of failing to provide a sample. He was convicted, fined and disqualified from driving for 6 years in respect of both offences. The time taken by a doctor to attend a garda station was said to amount to a delay sufficient to render the arrest of the applicant unlawful and, as a consequence, to render the evidence of the two road traffic offences inadmissible. The phrase “fruits of the poisoned tree” was used in argument in order to describe the doctrine which it was argued should lead to the quashing of the convictions. The respondent, the Director of Public Prosecutions, objected to the High Court granting relief on three preliminary grounds: the first was the delay of the applicant in seeking High Court leave to quash the Circuit Court decision; the second was the applicant’s failure to lodge a copy of the Court Order sought to be quashed before the hearing commenced, as required by court rules; the third was the failure of the applicant, when arguing his case in the Circuit Court, to raise the arguments made in respect of his dangerous driving conviction.

Held by the Court that the applicant’s liberty was not at stake. The Court noted that his change of solicitor was put forward as the main event which caused the delay in applying for judicial review; this was combined with the former solicitor’s personal difficulty and a change of advice which could not assist the applicant other than to correct a manifest injustice. The Court found that a misunderstanding was advanced as the reason for his having failed to put the impugned order of the Circuit Court before the High Court. The Court held that the applicant’s substantive claim was extremely weak in respect of one offence and he had no case in respect of the other. The Court noted that the penalties imposed in respect of both convictions were identical such that, in the unlikely event that he could succeed in relation to the first offence, he was bound to fail in respect of the second. The court held that there was no injustice caused by refusing to grant the application for certiorari on the preliminary grounds raised in the circumstances of the case; there was insufficient explanation for the procedural deficiencies in this case, either the delay or the failure to put the impugned order before the Court.

The Court held that the relief sought would be refused on that basis, having considered the overall merits of the case.

Judicial review refused.

JUDGMENT of Ms. Justice Mary Rose Gearty delivered on the 3rd day of July, 2020

1. Introduction

1.1 This is another case in which the time taken by a doctor to attend a garda station is said to amount to a delay sufficient to render the arrest of the Applicant unlawful and, as a consequence, to render the evidence of two road traffic offences inadmissible. The phrase “fruits of the poisoned tree” was used in argument in order to describe, in a well-recognised phrase, the doctrine which it is argued should lead to the quashing of these convictions.

1.2 This Applicant was seen driving erratically at about 3.30am on Laurence Street in Drogheda and he was followed by a garda vehicle. When a garda approached his Range Rover as it was stopped at a yield sign, the car circled the roundabout 5 times and then drove away, reaching speeds of up to 220 km per hour during the pursuit that followed. Having stopped the vehicle and formed the opinion that the driver, the Applicant, was drunk, the garda who had followed his vehicle arrested him at 4.10am and brought him to a garda station. There, the garda was unable to access the relevant apparatus to test his breath, the Evidenzer, as it was locked away and the key could not be found. A doctor was contacted at 5.35am, he indicated that he would be there 5 minutes later but did not arrive until 6.30am. The Applicant refused to provide blood or urine samples. He was charged with failing to provide a sample under s. 12 of the Road Traffic Act 2010, as amended and dangerous driving under s. 53 of the Road Traffic Act 1961, as amended.

1.3 The Applicant was convicted in the District Court and appealed both convictions. The Circuit Court hearing included submissions as to the legality of the Applicant's detention insofar as it might affect the evidence supporting the offence of failing to provide a sample. He was convicted, fined and disqualified from driving for 6 years in respect of both offences.

2. Delay and Procedural Rules: Three Objections

2.1 The Respondent objects to the Court granting relief on three preliminary grounds, all of which could be described as procedural arguments. The first is the delay of the Applicant in seeking High Court leave to quash the Circuit Court decision. The second is the Applicant's failure to lodge a copy of the Court Order sought to be quashed before the hearing commenced, as required by court rules. The third is the failure of the Applicant, when arguing his case in the Circuit Court, to raise the arguments now made in respect of his dangerous driving conviction. The focus of counsel's submissions at that stage was solely on the conviction for failure to provide a blood sample for analysis.

2.2 The Rules of the Superior Courts [RSC] provide detailed rules as to how court proceedings must be prepared, presented and processed. The procedural arguments involving the RSC are dealt with first, and the argument in respect of raising a new issue is discussed later, as part of the overall substantive argument that in either or both offences, the Trial Judge relied on evidence gathered while a suspect was in unlawful detention.

3. Delay in applying for Judicial Review

3.1 Order 84 of the RSC sets out the court rules governing the procedural requirements in judicial review cases. Rule 21, which sets the time limit for initiating proceedings, reads:

“21.(1) An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose…

(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that: —

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by the applicant for such extension.

(4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.

(5) An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant's failure to make the application for leave within the period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons.

(6) Nothing in sub-rules (1), ( 3) or (4) shall prevent the Court dismissing the application for judicial review on the ground that the applicant's delay in applying for leave to apply for judicial review (even if otherwise within the period prescribed by sub-rule (1) or within an extended period allowed by an order made in accordance with sub-rule (3)) has caused or is likely to cause prejudice to a respondent or third party…”

3.2 The Circuit Court Order affirming the convictions of the Applicant in respect of both offences was made on the 19th December, 2018. In both cases, a fine of €100 was imposed. The Circuit Court Judge also disqualified the Applicant from driving for a period of six years in respect of both offences, which disqualification was stayed until 19th May, 2019. The Applicant obtained leave on the 20th May 2019, over five months later, and the day after his disqualification period was due to commence. The Applicant did not serve the papers on the Respondent within the time prescribed by the Order and obtained two extensions of time for the same purpose in July and in August of 2019. There was no affidavit to ground an application seeking an extension of time within which to make the application. Nor was a copy of the impugned Order before this Court, which issue is dealt with below.

3.3 The Respondent relies on the case of Kennealy v. The Director of Public Prosecutions, [2010] IEHC 183 [2010] 5 JIC 1802 in this regard, although it is a prohibition case, in which the timing issues are different, by definition: the prohibition application is made to prevent an injustice, not to correct one. There, the charge was one of refusal to permit a designated medical practitioner take a blood sample in circumstances where an attempt had been made to take her blood but had not succeeded. Two days before her trial, that applicant sought to prohibit her criminal trial. In that application, she raised, for the first time, an issue as to whether the partial blood sample in...