Davitt v Judge Deery and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 20 March 2006 |
| Neutral Citation | [2006] IEHC 84 |
| Docket Number | [No. 495 J.R./2005] |
| Court | High Court |
| Date | 20 March 2006 |
[2006] IEHC 84
THE HIGH COURT
AND
ROAD TRAFFIC ACT 1994 S13(2)
ROAD TRAFFIC ACT 2002 S23
ROAD TRAFFIC ACT 1994 S13(1)
ROAD TRAFFIC ACT 1994 S23(1)
DPP v MOOREHOUSE 2006 1 ILRM 103
DPP v DOYLE 1996 3 IR 579 1997 1 ILRM 379
ROAD TRAFFIC ACT 1994 S13
ROAD TRAFFIC (AMDT) ACT 1978 S13(2)
CRIMINAL LAW
Road traffic offences
Statute - Interpretation - Intoxilyzer - Failure of accused to provide sufficient specimen of breath to allow intoxilyzer determine quantity of alcohol - Whether statute creating absolute offence - People (DPP) v Moorehouse [2005] IESC 52, (Unrep, SC, 28/7/2005) and People (DPP) v Doyle [1996] 3 IR 579 considered - Road Traffic Act 1994 (No 7), s 13(2) -- Certiorari refused (2005/495JR - Murphy J - 20/3/2006) [2006] IEHC 84
Davitt v Judge Deery
Facts: the plaintiff failed to provide two specimens of breath sufficient for an Intoxilyser to produce a reading and was therefore convicted by the respondent pursuant to section 13(2) of the Road Traffic Act 1994, as amended by section 23 of the Road Traffic Act 2002. The applicant was granted leave to apply for an order of certiorari quashing his conviction on the grounds, inter alia, that section 13(2) of the Act of 1994 did not create a strict liability offence and there was no fault on his part in failing to provide the requisite specimen for the Intoxilyser.
Held by Mr Justice Murphy in refusing the application that there was available to the applicant an alternative remedy in the form of a case stated to the High Court which made judicial review inappropriate in the circumstances. Notwithstanding, a penal statute could be interpreted in a purposive manner and a court should not adopt a construction which led to an artificial or absurd result. Accordingly, s. 13(2) of the Act of 1994 created strict criminal liability as fault on the part of the applicant was not a requirement and the failure of the applicant to provide breath specimens was sufficient to establish criminal liability thereunder.
Reporter: P.C.
The Applicant applied to the court for an order ofcertiorari quashing an order of the first named respondent of 15th February, 2005, convicting the applicant of an offence under s. 13(2) of the Road Traffic Act, 1994 as amended by s. 23 of the Road Traffic Act, 2002 (the Act).
Leave had been given by O'Leary J. on 27th June, 2005.
The applicant's affidavit, sworn 12th May, 2005, stated that, having been required by a member of the Garda to provide two specimens of his breath, the intoxilyser failed to produce a reading.
Evidence was given that having been required to provide specimens he failed to do so and was convicted of the offence charged and fined €200 by order of the District Court dated 8th September, 2004.
He appealed the decision to the Circuit Court on 26th October, 2004. Judge Deery adjourned his decision until 27th October, 2004, and again to 15th February, 2005, when expert evidence was given on the appellant's behalf and on the State's behalf.
The applicant said that evidence was given by the arresting Garda that he had fully complied with the Garda's instructions and tried with his best efforts to provide a sample but was unable to push the meter beyond a little over half its normal level at three different attempts.
He said that the failure to register a reading, despite his best efforts to do so, was not a failure to provide a specimen as envisaged by s. 13(1) of the Act of 1994 and did not amount to an offence. He was not aware of any medical condition as to why he was incapable of blowing with enough force to register a reading other than he was a smoker of an average of forty cigarettes a day.
The first named respondent rejected his submissions and held that he had failed to provide a breath sample and that he must be convicted. The order of the District Court was reaffirmed. He said that he relied on his capacity to drive to a large extent in the course of his work and that the inability to do so would have serious repercussions on his livelihood and ability to provide for his family.
The first named respondent erred in law and acted in excess of jurisdiction in construing a failure to provide a reading resultant on an exhalation into the intoxilyzer. The legislation made no provision for such an offence of strict liability with regard to a person's physical incapacity to produce a sufficiently strong exhalation resulting in a reading. The option of providing a blood or urine sample as an alternative to the option of a breath sample was never put to or formally requested of the applicant. The conviction was wrong in law and in breach of the principles of natural and constitutional justice in that it was posited on the liberal interpretation of a penal statutory provision which ought to have been interpreted strictly in the circumstances.
The fair grounds are more particularly referred to in the decision of the Court at 7.4 below.
The respondents stated that the finding of facts as found by the first respondent on the evidence, upon which he convicted the applicant, were not disclosed in the application for judicial review.
The first respondent had at all material times acted within his jurisdiction and, if he had erred, the error was made within his jurisdiction.
The requirement to provide a breath specimen was a requirement to provide breath specimens that could enable the determination, by the instrument into which the specimens were exhaled, of the concentration of alcohol in the breath and the failure to comply was an offence of strict liability, subject to the defence provided for in s. 23(1) of the Act of 1994. Even is this were not so, the defence which the applicant advanced was not a valid defence. He was not charged with or convicted of failing to comply with the instructions of a member of the Gardaí.
The first respondent neither erred in his construction of the Act nor failed to have regard to the principles of natural and constitutional justice.
The Act of 1994 does not allow for an option of providing blood or urine samples alternative to a breath specimen otherwise than is set out in section 23(1). There is no requirement or obligation to give an arrested person an option of providing a specimen of blood or urine.
The applicant had used his best efforts to provide a sample but was unable to push the meter, which procedure was repeated on two further occasions.
The net legal question arising is whether s. 13(2), subject to one special statutory defence, had created an absolute offence.
Counsel submitted thatDPP v. Moorehouse (Unreported, Supreme Court, 28th July, 2005) did not decide that, subject to s. 23, s. 13(2) created an absolute offence in all circumstances. It was submitted that s. 23 was not the only exception to what would otherwise be an absolute offence. The applicant was not informed of his statutory right to provide a blood or urine sample.
Counsel for the applicant referred toDirector of Public Prosecutions v. Moorehouse, Unreported, Supreme Court, 28th July, 2005 and to C.C. v. Ireland (Unreported, Supreme Court, 12th July, 2005).
The applicant also referred toC.C. v. Ireland, (Unreported, Supreme Court, 12th July, 2005), regarding the defence of bona fide mistake as to age, where it was held that there was no absolute offence created. He referred to the judgment of Geoghegan J. setting out the general principles:
"[M]ens rea must be presumed to be a necessary ingredient of all serious offences whether they be common law or statutory unless there is a statutory provision from which it is clear that mens rea is excluded either expressly or by necessary implication."
Unless the view was taken that s. 23 was intended as the only possible defence available, it cannot be regarded as having created an otherwise absolute offence.
The respondents submit that the statement of grounds and verifying affidavits did not disclose what findings of fact were made by the first respondent. The specific basis of that conviction was not known. The Court is being asked implicitly to speculate as to the factual basis upon which the first respondent convicted the applicant, which was inappropriate. The respondents argue that the applicant could have asked the first respondent to state a case for the opinion of the Supreme Court which would have incorporated the findings of fact reached by the first respondent. No complaint was made regarding the procedures adopted or the fairness thereof. The first respondent did not act in excess of jurisdiction.
The reliance on what the Garda asserted with regard to the applicant making all reasonable efforts is misplaced as it is not an offence to fail to comply with the instruction of the Garda as to the manner in which an arrested person is to provide breath specimens or to fail to do one's best in that regard. It is an offence to refuse or fail to comply with a requirement to provide these specimens.
The applicant did not contend that the apparatus was defective.
The applicant did not testify that he was unable to provide the specimens required.
Counsel referred toMoorehouse and to Director of Public Prosecutions v. Doyle [1996] 3 I.R. 579 where the issue of non compliance was considered.
The applicant did not rely on the defence provided by s. 23(1) of the Act of 1994. The Act does not allow for an option to be exercised by an arrested person for the provision of a blood or urine specimen as an alternative to a breath specimen. The wording of the relevant section does not give the option as an alternative to the provision of...
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