D. P. P. -v- Mc Crea, [2009] IEHC 39 (2009)

Docket Number:2008 1031 SS
Party Name:D. P. P., Mc Crea
Judge:Edwards J.
 
FREE EXCERPT

THE HIGH COURT 2008 1031 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA BRIAN LAVELLE)PROSECUTOR/APPELLANTAND

PAUL McCREARESPONDENT/ACCUSEDJUDGMENT of Mr. Justice John Edwards delivered the 28th day of January, 2009.

Introduction

The proceedings herein take the form of an appeal by way of Case Stated pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961. For ease of reference the prosecutor/appellant and the respondent/accused respectively will hereinafter be referred to simply as "the prosecutor" and "the accused" respectively.

Section 2 of the 1857 Act provides:-

"After the hearing and determination by a Justice or Justices of the Peace of any information or complaint which he or they have power to determine in a summary way, by any law now in force or hereafter to be made, either party to the proceedings before the said Justice or Justices may, if dissatisfied with the said determination as being erroneous in point of law, apply in writing within three days after the same to the said Justice or Justices to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of Law to be named by the party applying".

Section 51 of the Courts (Supplemental Provisions) Act, 1961, provides:-"(1) Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a Justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the court). If dissatisfied with such determination as being erroneous on a point of law, to apply in writing within fourteen days after such determination to the said Justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court."The Case Stated

On the 8th July, 2008 Judge Anne Watkin, a Judge of the District Court, assigned to the Dublin Metropolitan District, pursuant to a request from the prosecutor, stated a case for the opinion of the High Court in the following terms.

"(1) On 23rd January, 2008, the above named case was listed for hearing before me in the District Court, Richmond Courts Complex, North Brunswick Street, Dublin 7. The accused faced the following charge, as contained in Charge Street No. 632056:

"On the 9th June, 2007 at Blanchardstown Garda Station in the said District Court Area of Dublin Metropolitan District, being a person arrested under s. 49(8) of the Road Traffic Act, 1961, having being required by Garda Gillian Synnott, a member of the Garda Síochána, at Blanchardstown Garda Station pursuant to s. 13(1)(a) of the Road Traffic Act, 1994 to provide two specimens of your breath, did refuse to comply forthwith with the said requirement. Contrary to s. 13(2) of the Road Traffic Act, 1994, as amended by s. 23 of the Road Traffic Act, 2002".

A copy of charge sheet No. 632056 is appended to this Case Stated at Appendix A.

(2) The case came before me on 23rd January, 2008 and was prosecuted by Mr. Ronan Cleary, Solicitor of the office of the Chief Prosecution Solicitor. The accused was represented by Mark Byrne, B.L., instructed by Terence Lyons and Company, Solicitors.

Evidence proved or admitted before me (3) The first prosecution witness to give evidence was Garda Brian Lavelle. He testified that, on the morning of 9th June, 2007, the accused had been pulled over for driving erratically, swerving left to right on the road. Garda Lavelle testified that he spoke to the accused, who had been driving the vehicle, and detected a strong smell of intoxicating liquor from his breath. The accused's speech was slurred and his eyes were glazed.

(4) The accused stated to Garda Lavelle that it had been one hour since his last drink. Garda Lavelle made a requirement of the accused, pursuant to s. 12 of the Road Traffic Act, 1994 (as amended by s. 10 of the Road Traffic Act, 2002 and s. 2 of Road Traffic Act, 2003) to provide a specimen of his breath, and explained to the accused the penalties for failure to provide same. The accused provided a specimen of his breath and it was a "fail" reading. Garda Lavelle formed the opinion that the accused was intoxicated to such an extent as to be incapable of controlling a mechanically propelled vehicle in a public place and he was arrested at 2.10 a.m. on 9th June, 2007 under s. 49(8) of the Road Traffic Act, 1961.

(5) Garda Lavelle explained the reason for his arrest to the accused, both in terms of the relevant legislation as well as in ordinary language. The accused was given the usual legal caution and replied that he understood the reason for his arrest. He was brought to Blanchardstown Garda Station, arriving at 2.18 a.m. At 2.21 a.m. the accused was given his notice of rights and Form C72 was read over and explained to him by Garda William Murray, attached to Blanchardstown Garda Station. The accused refused to sign for his notice of rights. Garda Lavelle testified that the accused had not requested to speak to a solicitor at this stage; despite the fact that it was put to the said Garda that the evidence of the accused would be that he had made such a request at that stage.

(6) A copy of the custody record which was before the court is appended to this Case Stated at Appendix B.

(7) Garda Lavelle observed the accused for a period of 30 minutes from 2.18 a.m. to 2.48 a.m. to ensure he consumed nil by mouth. The reason for this period of observation was explained to the accused and it was completed successfully. There was no Garda trained to operate the intoxilyser machine present at the station at this time and the arrival of Garda Gillian Synnott was awaited.

(8) Garda Synnott testified that she arrived at the station and was introduced to the accused at 2.50 a.m. She noticed a smell of intoxicating liquour from his breath and that his eyes were red and glazed. She noted the temperature and humidity levels in the intoxilyser room were within required parameters. Garda Synnott entered her details in to the intoxilyser machine and made a requirement of the accused under s. 13(1)(a) of the Road Traffic Act, 1994 at 2.54 a.m. Garda Synnott explained to the accused the penalties for refusing to give a sample of his breath as required under s. 13(1)(a).

(9) Garda Synnott stated that the accused replied that he wanted to speak to a solicitor. Garda Synnott stated that she informed the accused that he could speak to a solicitor as soon as he had complied with her requirement. Garda Synnott testified that she reminded the accused that he was obliged by law to provide a sample of his breath and that he would be able to talk to his solicitor afterwards. Garda Synnott testified that she explained to the accused in ordinary language that he was required to provide a breath sample under the law and that his solicitor would tell him the same thing.

(10) Garda Synnott testified that the accused refused to get up from his chair and refused, in a verbally aggressive manner, to provide a breath sample, specifically stating that he would not give a sample.

(11) A cycle of three minutes was completed on the intoxilyser machine without the accused exhaling in to it and the machine timed out. The accused was deemed to have refused to provide a sample of his breath and was duly charged under s.13 (2) of the Road Traffic Act, 1994 as amended by s. 23 of the Road Traffic Act, 2002.

(12) Gardaí Lavelle and Synnott both testified that at no point did the accused offer any medical reason for his failure to provide a breath specimen when required.

(13) Under cross-examination and in response to questions from me, Garda Synnott explained that the reason she did not accede to the requests of the accused for access to a solicitor was that she believed she could only make one request pursuant to s. 13(1)(a) Road Traffic Act, 1994 and that if she aborted the process midway through, in order to provide the accused with an opportunity to speak to his solicitor, she would be precluded from making any further request under s. 13(1)(a) at a later stage.

Application for a Direction (14) At this stage counsel for the accused sought a direction on the basis that the accused had been denied a right of reasonable access to a solicitor and that this had, in consequence, produced the evidence relied on by the state in prosecuting the case, namely the evidence that the accused had refused to provide a breath sample.

Submissions (15) Counsel for the accused submitted to me an extract from the 3rd Edition of Mr. De Blacam's "Drunken Driving and the Law", quoting the case of DPP v. Byrne, (Meath Chronicle 1st June, 1991).

(16) Counsel for the accused submitted to me that the failure by the Gardaí to accede to the requests of the accused to see his solicitor was fatal to the prosecution.

(17) Counsel for the accused referred me to the wording of s. 13 of the Road Traffic Act, 1964, as amended, and submitted that there was nothing to suggest that a Garda could only make a request of a suspect on one occasion. Mr. Cleary, for the prosecution, agreed with this interpretation of the relevant section.

(18) Mr. Cleary for the prosecution, opened the case of Walsh v. O'Buachalla, [1991] I.R. 56 and argued that it showed that the accused was obliged to give a sample of his breath in any event, whether his request to consult with his solicitor was acceded to or not. Mr. Cleary pointed to the late stage in the process at which the accused made his request, despite having been informed of his right to speak with his solicitor at the outset and despite the fact that the accused had had the opportunity to speak to a solicitor at an earlier stage in the proceedings...

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