D. P. P. -v- Hopkins, [2009] IEHC 337 (2009)

Docket Number:2009 495 SS
Party Name:D. P. P., Hopkins
Judge:Hedigan J.
 
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THE HIGH COURT2009 495 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 50(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA GARETH O'BRIEN)PROSECUTORAND

DAVID HOPKINSACCUSEDJUDGMENT of Mr. Justice Hedigan delivered the 7th day of July, 2009

  1. This is an appeal by way of Case Stated by District Judge Angela Ní Chondúin pursuant to s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 50(1) of the Courts (Supplemental Provisions) Act 1961, on the application of the prosecutor who was dissatisfied with the determination of the learned District Judge as being erroneous in point of law.

  2. The opinion of the High Court is sought in relation to the following questions:-

    (a) Does the failure by the doctor who administers a blood alcohol test to record on the label of the blood container provided to the accused, the date on which the specimen was taken amount to a breach of s. 18 of the Road Traffic Act 1994 ('the 1994 Act')?

    (b) Having concluded that there was a breach of s. 18 of the 1994 Act, was the learned District Judge entitled as a matter of law to dismiss the charge in the absence of any explanation or excuse offered in evidence by the prosecution for the breach?

    (c) In order to decide whether to dismiss the charge on the basis of a breach of s.18 of the 1994 Act, was the learned District Judge obliged to consider whether the accused had been prejudiced as a result of the breach?

    (d) If evidence of prejudice is in fact required, was the evidence before the learned District Judge sufficient to justify the dismissal of the charge?

    1. Factual and Procedural Background

  3. At a sitting of the District Court in Wicklow Town on the 19th of May, 2008, the accused appeared to face a charge under ss. 49(2) and 49(6)(a) of the Road Traffic Act 1961 ('the 1961 Act'), as inserted by s.10 of the 1994 Act and amended by s. 23 of the Road Traffic Act 2002. The summons in question specified that the accused had, on the 6th of May, 2007, driven his vehicle in a public place such that within three hours after so driving, the concentration of alcohol in his blood had exceeded a concentration of 80 milligrammes of alcohol per 100 millilitres of breath.

  4. During the course of the hearing, the prosecuting member of An Garda Síochána, Garda Gareth O'Brien, gave evidence that he was fully trained in the use of the Draeger Alcometer and the Lion Intoxilyser. He explained that at around 00.40 on the 6th of May, 2007, the accused had been stopped at a mandatory alcohol testing checkpoint which had been duly authorised pursuant to s. 4 of the Road Traffic Act 2006 ('the 2006 Act'). The accused was required to provide a breath specimen pursuant to s. 4(4)(a)(i) of the 2006 Act and the potential consequences of non-compliance were explained to him. The accused complied with this lawful demand and the test on the Draegon Alcometer returned a result of 'fail'. Garda O'Brien formed the opinion that the accused may have committed an offence contrary to s. 49 of the 1961 Act. He arrested the accused and cautioned him in the usual terms.

  5. Garda O'Brien gave further evidence that the accused was transported to Store Street Garda Station and introduced to the Member in Charge. A custody record was completed in respect of the accused. The Notice of Rights was then read to the accused, who signed the custody record to acknowledge receipt of those rights. At approximately 01.00, Garda O'Brien took the accused to an interview room to begin a period of observation. During the course of this period, the accused explained that for medical reasons he would be unable to provide a specimen of breath. Garda O'Brien arranged for a doctor to be contacted, who arrived at the Garda station within a short period. Garda O'Brien required the accused, pursuant to s. 13(1)(b) of the 1994 Act to provide a sample of either urine or blood and informed him of the potential consequences of non-compliance. The accused opted to provide a blood sample, which was taken by the doctor using a specialised blood kit provided by Garda O'Brien. The sample was divided into two parts, each of which were placed within a sealed container. The accused was given the option, pursuant to s.18(2) of the 1994 Act, to retain one of the containers and chose to do so. On the label of this container, where the doctor should have recorded the date of taking the sample, he inadvertently recorded the date of birth (incorrectly) of the applicant. He was then released from custody. The container which Garda O'Brien had retained was delivered to the Medical Bureau of Road Safety on the 8th of May, 2007. It was tested and returned a reading of 106 milligrammes of alcohol per 100 millilitres of blood.

  6. Under cross-examination by counsel for the accused, the specimen container which had been provided to the accused was shown to Garda O'Brien. He confirmed that it was one of the two containers from the night in question as it bore the same serial number. He also confirmed that the sample was sealed and labelled with the name of the accused. He agreed that the specimen container also bore a date of birth of the 30th of March, 1938. It was put to him that the accused's actual date of birth, as specified on the custody record was the 30th of March, 1948. The contents of a letter from Claymon Laboratories, a private pathology laboratory based in Dublin, were then put to Garda O'Brien. The letter stated that the laboratory would not be willing to examine the specimen on the basis that the date listed on the specimen container was not the correct date of birth of the accused. It is important to note that this letter was never formally introduced in evidence, nor were its contents proven.

  7. Having heard extensive submissions from both sides, which are set out below, the learned District Judge concluded that the error on the label of the specimen container amounted to a breach of s.18 of the 1994 Act. She further held that no explanation for this error had been advanced by the prosecution. On this basis, she dismissed the case against the accused.

    1. The Submissions of the Parties

  8. The prosecutor contends that the error which occurred in the present case was of a minor or trivial nature. Such an error, in his submission, should not require a proven explanation in a prosecution of this kind and ought...

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