O'Connor v Judge John O'Neill and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Michael Hanna |
| Judgment Date | 18 February 2011 |
| Neutral Citation | [2011] IEHC 118 |
| Court | High Court |
| Docket Number | [2009 No. 1067 JR] |
| Date | 18 February 2011 |
[2011] IEHC 118
THE HIGH COURT
BETWEEN:
AND
ROAD TRAFFIC ACT 1994 S23(1)
CONSTITUTION ART 38.1
CONSTITUTION ART 40.3.1
ROAD TRAFFIC ACT 1961 S49(8)
ROAD TRAFFIC ACT 1994 S13(1)(A)
ROAD TRAFFIC ACT 1994 S13(2)
ROAD TRAFFIC ACT 1994 S13(1)
COLLINS, O'REILLY CIVIL PROCEEDINGS & THE STATE 2ED 2004 PARA 5.86
DPP v CABOT UNREP Ó CAOIMH 20.4.2004 2004/14/3248
C (C) v IRELAND & ORS 2006 4 IR 1
CRIMINAL LAW (AMDT) ACT 1935 S1(1)
SHERRAS v DE RUTZEN 1895 1 QB 918
DPP v BEHAN UNREP Ó CAOIMH 3.3.2003 2003/13/2930
DPP v FINNEGAN UNREP CLARK 5.11.2008 2008/18/3786 2008 IEHC 347
STATE (HEALY) v DONOGHUE 1976 IR 325
HEANEY v IRELAND 1994 3 IR 593
DPP v MCGARRIGLE 1996 1 ILRM 271
HUMAN RIGHTS ACT 2003 S5
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(2)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(A)
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(B)
KERR v UK 1999 1999 1 PLR 174
CRIMINAL LAW
Strict liability offence
Refusal to provide breath sample -No requirement made to provide sample of blood or urine - Finding of special and substantial reason for applicant's failure to provide breath sample - Absence of offer of alternative sample - Applicant unaware of statutory defence to failure to provide breath sample of offering blood or urine sample - Applicant not informed - No offer made by applicant - Evidence applicant suffered from mild asthma and panic attacks -Whether onus existed on Garda Siochána to inform applicant of obligation - Whether absence of knowledge of applicant of defence open under the Act negated mens rea - Whether gardaí on notice at material time of special and substantial reason - Whether Act in breach of Constitution and State's obligations pursuant to European Convention of Human Rights - Whether fair procedures required making requirement to provide alternative where breath sample refused - State (Healy) v Donoghue [1976] IR 325, Heaney v Ireland [1994] 3 IR 593, DPP v Cabot [2004] IEHC 79 (Unrep, Ó Caoimh J, 20/4/2004), DPP v Behan (Unrep, Ó Caoimh J, 3/3/2003) and DPP v Finnegan [2008] IEHC 347 [2009] 1 IR 48 applied - Sherras v De Rutzen [1895] 1 QB 918 followed - CC v Ireland [2006] IESC 33 [2006] 2 ILRM 161 considered - DPP v McGarrigle [1996] 1 ILRM 271 distinguished - Constitution of Ireland 1937, articles 38.1 and 40.3 - European Convention on Human Rights and Fundamental Freedoms - Road Traffic Act 1994 (No 7), s 13 and 23(1) - European Convention on Human Rights Act 2003 (No 20), s 5 - Relief refused (2009/1067JR - Hanna J - 18/2/2011) [2011] IEHC 118
O'Connor v Judge O'Neill
Facts: The applicant claimed that the first named respondent had acted ultra vires in convicting her of an offence pursuant to s. 13 Road Traffic Act 1994, as amended, of refusing to provide a breath specimen. The applicant was not informed or aware of the defence that was open to her to provide a sample of blood or urine. The applicant claimed that her absence of knowledge of this defence negatived the mens rea for the offence and that the defence was part of the range of rights accorded to her pursuant to Article 38.1 of the Constitution. The question arose as to the obligations on the Gardai Siochana in respect of this defence.
Held by Hanna J. that the Court was not satisfied that mental guilt comprised an essential element of the offence under s. 13(1). The offence was one of strict liability. The Court was not satisfied that there was a constitutional duty on a member of the Garda Siochana to advise an arrested person on how to successfully avail of any defence. The reliefs sought would be refused.
Reporter: E.F.
JUDGMENT of Mr. Justice Michael Hanna of delivered the 18th day of February, 2011
This is an application for Judicial Review of a conviction of the applicant at the Dublin Metropolitan District Court for an offence of refusal to provide a breath specimen pursuant to section 13 of the Road Traffic Act, 1994, (hereinafter referred to as "the Act") on the 10 th day of September, 2009. The first-named respondent was the trial judge. The applicant claims that the first-named respondent erred in law and/or acted ultra vires his powers in so convicting her. It was determined by the trial judge that a special and substantial reason existed for the failure or refusal to provide a specimen of breath. I will set out the material legislation hereunder. He found that the Garda Siochána did not, subsequent to the applicant's failure or refusal to provide a sample of her breath, make a requirement of her to provide a sample of her blood or urine and that no onus existed on the Garda Siochána to inform the applicant of her obligation, as soon as was practicable after the failure or refusal, to offer a sample of her blood or urine.
The applicant claims that section 23(1) of the Act places an onus on the Garda Siochána to inform the applicant of the requirement to provide a sample of her blood or urine. In the alternative, the applicant claims that section 23(1) of the Act is unconstitutional or repugnant to the provisions of Bunreacht na hÉireann, and in particular the guarantees to trial in due course of law contained in Article 38.1 and the right to fair procedures in Article 40.3.1. Further, or in the alternative, the applicant seeks a Declaration pursuant to section 5 of the European Human Rights Act, 2003 that s. 23(1) of the Act is incompatible with the State's obligations pursuant to the ECHR.
On the 29 th day of July, 2008, the applicant was arrested by Garda Culhane pursuant to section 49(8) of the Road Traffic Act 1961 on suspicion of drink driving. The applicant was conveyed to Terenure Garda Station, where a requirement was made of her pursuant to s. 13(1)(a) of the Act to provide two specimens of breath. The applicant failed to provide the required samples and was charged with refusing or failing to comply with a requirement to provide a breath sample contrary to s. 13(2) of the Act.
The applicant was not informed, and was not aware, that s. 13(2) of the Act provides a defence to a prosecution for a refusal or failure to give a sample of breath where the defendant has offered to provide a sample of blood or urine. The applicant was not asked by the Garda Siochána to comply with a requirement in relation to the taking of a sample of blood or urine, nor did the applicant offer to comply with such requirement.
The applicant appeared before the first-named respondent in the District Court on the 10 th day of September, 2009. The applicant's General Practitioner, Dr. Kenny, gave evidence on the applicant's behalf at the hearing and stated that the applicant suffered from mild ongoing asthma and experienced panic attacks. Dr Kenny gave evidence of the typical symptoms of a panic attack; shortness of breath; palpitations; confusion and; disorientation. The applicant gave evidence that she had suffered from a panic attack at the Garda Station and it was as a result of this panic attack that she was unable, despite repeated efforts, to provide a sample of breath.
Garda Culhane gave evidence that, on the relevant date, he had observed a car, registration 06-D- 50677, take a corner very wide and, as a result, the driver of the patrol car in which he was travelling, Garda McKinney, was forced to take measures to avoid a collision between the two vehicles. The applicant was the driver of the errant vehicle. Garda Culhane and Garda McKinney stopped the motor car. Garda Culhane stated that he formed the opinion that the applicant had consumed an intoxicant to such an extent as to render her incapable of having proper control of a mechanically propelled vehicle in a public place and gave evidence of arrest and caution. He gave evidence that he observed the applicant for 20 minutes, during which time she consumed nil by mouth. He stated that the applicant was then brought to the Doctor's room where she was processed through the Intoxilyser by Garda Leonard.
Garda Leonard gave evidence that while in the Garda Station he had formed the opinion that the applicant was under the influence of an intoxicant and that he had stated to Garda Culhane that he would conduct a breath test on the applicant. He subsequently made a demand of the applicant under s 13(1) of the Act to provide two specimens of breath for determining the level of alcohol in her breath. He instructed her that failure or refusal to comply with the requirement constitutes an offence under s. 13(2) of the Act and informed her of the potential punishment. Garda Leonard stated that the applicant attempted to blow into the machine but stopped blowing before a specimen registered and that the applicant repeated this several times contrary to the Garda's instruction. The Garda deemed the test a failure to comply with s. 13 of the Act. It is not disputed that the applicant was made fully aware of her legal rights.
The first-named respondent held that there was a 'special and substantial reason' for the applicant's failure or refusal to provide a sample of breath as envisaged by s. 23(1) of the Act. However, the first-named respondent held that his hands were tied and that the law required the applicant, even in the absence of her knowledge, to offer to provide a specimen of blood or sample of urine. He held that there was no onus on the Garda Siochána to inform the applicant of the provisions of s. 23(1) of the Act and therefore that he was obliged to convict her. The first-named respondent...
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