D. P. P. -v- Vaitkevicius, [2010] IEHC 64 (2010)

Docket Number:2009 1297 S
Party Name:D. P. P., Vaitkevicius
Judge:O''Neill J.
 
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THE HIGH COURT2009 1297 SS

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

The Director of Public Prosecutions (At the Suit of Garda Sean Maxwell) Prosecutor/AppellantAnd

Povilas VaitkeviciusAccused/RespondentJudgment of O'Neill J. delivered the 19th day of March 2010

  1. Factual Background

    1.1 On the 30th August, 2008, the accused was stopped at a checkpoint set up by the gardaí pursuant to s.4 of the Road Traffic Act 2006 ("the Act of 2006") and underwent a mandatory breath test, the result of which indicated the presence of alcohol in his system. He was then arrested and brought to Kilkenny Garda Station, where he provided another breath specimen. The alcohol content in that specimen exceeded the legal limit. He was duly charged with the offence of drunken driving contrary to s.49(4) and (6)(a) of the Road Traffic Act 1961, as inserted by s.10 of the Road Traffic Act 1994, as amended by s.18 of the Road Traffic Act 2006.

    1.2 On the 26th February, 2009, the case came on for hearing before the District Court in Kilkenny. District Judge Harnett examined the written authorisation required for the setting up of the checkpoint pursuant to s.4 of the Act of 2006. A twenty four hour clock format was used. However, in the absence of a colon or full stop used between the first two digits and the last two digits the District Judge concluded that the statement of the time was meaningless and that, as a result, the authorisation was fatally flawed. The accused was acquitted. The prosecution requested a case to be stated to this Court by way of appeal. The accused intimated that he did not oppose the application.

    1.3 On the 6th March, 2009, a notice of application to state a case was lodged by the prosecution with the District Court. The notice was sent to the accused's solicitors. By annotated note dated the 11th March, 2009, District Judge Harnett acknowledged receipt of the case stated and intimated that a draft case stated should be submitted in due course. The prosecution solicitor, Mr. Meaney, sent the draft case stated to the District Court and to the accused's solicitors, Burns Kelly Corrigan, by cover letter dated the 25th May, 2009. On the 11th June, 2009, the accused's solicitors wrote to Mr. Meaney stating that the draft had been furnished to their counsel and asked for time to take advice and instructions from their client with a view to making amendments to the draft. On the 15th of July 2009, Mr. Meaney avers that the defence told him that they had met with the accused and would not be showing cause because of the risk of exposure to costs. Mr. Meaney responded by letter dated the 17th July, 2009, noting the content of the conversation he had in previous days with them and advising that he had written to the District Court Clerk informing him that they had no amendments to suggest in respect of the case stated. In the District Court on the 21st July, 2007, Judge Harnett approved and signed the case stated in the draft form in which it was submitted. It was returned to Mr. Meaney by the District Court Clerk by cover letter dated the 29th July, 2009 and received by Mr. Meaney on the 30th July, 2009.

    1.4 By notice of transmission dated the 31st July, 2009, the case stated was sent to Burns Kelly Corrigan by Mr. Meaney by post. Mr. Meaney forwarded the case stated to his town agents on the same date requesting them to lodge it in the High Court...

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