Director of Public Prosecution v Avedenei, [2017] IESC 77 (2017)

Docket Number:74& 78/2016

THE SUPREME COURT[Supreme Court Appeal No: 74/2016; 78/2016]

[Court of Appeal No: 526/2015]

[High Court Record No: 2015/267 SS]

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.




JUDGMENT of Ms. Justice O’Malley delivered the 20th day of December 2017


  1. Two issues have been debated in this appeal. The first is whether a document adduced in evidence against the appellant in a Road Traffic Act prosecution was in the form required by the legislation and the regulations made thereunder. Each Court that has dealt with this matter so far – the District Court, High Court and Court of Appeal – has held that it was not. The second issue is whether, if this Court is of the same view, the document should nonetheless be held admissible as evidence of the truth of its contents.

  2. The appellant was tried in the District Court for an offence contrary to s. 4(4) of the Road Traffic Act 2010 (“the Act”) – that is, driving a mechanically propelled vehicle while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 22 microgrammes of alcohol per 100 millilitres of breath. At the hearing the defence made a submission to the effect that the prosecution had not proved the case in the manner required by s. 13 of the Act. The argument was that the document relied upon to prove the breath alcohol level (referred to in the Act as a “statement”) was not “duly completed” in that it did not comply with the form prescribed in the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2011, made under the Act. That argument depended upon the proposition that the form prescribed by the regulations included both an Irish and English language version of the contents. The statement in this case is in the English language only.

  3. It should be made clear from the outset that the question does not relate to any asserted constitutional entitlement to an Irish language version of the statement, or to any argument of that nature. It is a matter of statutory interpretation, arising in circumstances where the content of a statement in the prescribed form is given an evidential status it would not otherwise have, and constitutes the principal evidence that the offence has been committed.

  4. The learned District Judge agreed with the defence submission and found as a fact that the statement was not “duly completed”. He then referred a question of law to the High Court, asking whether, on the facts of the case, he was entitled so to hold.

  5. The High Court (Noonan J.) agreed with the District Judge – see The Director of Public Prosecutions (At the Suit of Garda Francis McMahon) v. Mihai Avadenei [2015] IEHC 580. However, an appeal by the prosecutor was successful in the Court of Appeal – see [2016] IECA 136. The latter Court considered that the statement was defective, but that the defect did not materially affect the substance of the document and it was not misleading in content or effect. On that basis, s. 12 of the Interpretation Act 2005 applied and the statement was not invalidated. It was therefore to be considered as complying with the prescribed form.

  6. The parties have maintained consistent positions in relation to the issues. The appellant says that the form does not comply with the regulations; that the degree of non-compliance is more than the mere “deviation” envisaged by the Interpretation Act 2005 and is a matter of substance; and that, therefore, the statement cannot be considered to have been “duly completed” for the purposes of ss. 13 and 20 of the Act. The respondent says that the form does comply with the regulations, but argues, in the alternative, that any non-compliance amounts only to a “deviation” covered by the Interpretation Act.

    The statutory procedure in respect of breath alcohol

  7. As might be expected from its technical nature, the offence in question is detected by means of an apparatus capable of analysing the level of alcohol in a sample of breath. The statutory procedure involves the provision of two samples. The apparatus then provides a printout of the result in terms of microgrammes of alcohol per 100 millilitres of breath in each specimen. For the purpose of any prosecution, where there is a variance between the two specimens the lower result is taken. The apparatus is programmed to produce the printout on a pre-set form, which will include other prescribed details to be entered by the garda operating the apparatus such as the identity of the driver and the garda concerned.

  8. A power to require a driver to provide two breath samples for analysis by the apparatus is conferred by s. 12 of the Act, and arises (inter alia) where the person concerned has been arrested on suspicion of having committed an offence under the provisions of s. 4. Failure to comply with a requirement made under s. 12 is in itself an offence.

  9. The statutory procedure to be followed after the taking of the two specimens is set out in s. 13 of the Act, which is here reproduced in full:

    “13.— (1) Where, consequent on a requirement under section 12 (1)(a) of him or her, a person provides 2 specimens of his or her breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen—

    (a) in case the apparatus determines that each specimen has the same concentration of alcohol, either specimen, and

    (b) in case the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol,

    shall be taken into account for the purposes of sections 4 (4) and 5 (4) and the other specimen shall be disregarded.

    (2) Where the apparatus referred to in section 12 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 4 (4) or section 5 (4), he or she shall be supplied immediately by a member of the Garda Síochána with 2 identical statements, automatically produced by that apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in that specimen determined by that apparatus.

    (3) On receipt of those statements, the person shall on being requested so to do by the member—

    (a) immediately acknowledge such receipt by placing his or her signature on each statement, and

    (b) thereupon return either of the statements to the member.

    (4) A person who refuses or fails to comply with subsection (3) commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 3 months or to both.

    (5) Section 20 (1) applies to a statement under this section as respects which there has been a failure to comply with subsection (3)(a) as it applies to a duly completed statement under this section.”

  10. Section 20(1) of the Act is the provision dealing with the evidential status of the statement and provides:

    “20.— (1) A duly completed statement purporting to have been supplied under section 13 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961 to 2010 of the facts stated in it, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him or her by or under Chapter 4 prior to and in connection with the supply by him or her under section 13 of such statement.”

  11. The “prescribed form” referred to in the section is provided for in the Road Traffic Act 2010 (Prescribed Form and Manner of Statements) Regulations 2011 (S.I. 541/2011). Regulation 3 and 4 provide as follows:

    “3. The form set out in the Schedule is prescribed as the form of the statements to be automatically produced for the purposes of section 13(2) of the Act of 2010 by an apparatus referred to in s. 12(1)(a) of that Act.

  12. For the purposes of completing the statements referred to in section 13(2) of the Act of 2010 in the prescribed manner the member of the Garda Síochána supplying the statements shall—

    (a) before the person provides a specimen of his or her breath in accordance with section 12(1)(a) of the Act of 2010, input into the apparatus referred to in that section—

    (i) the name, address, date of birth and gender of the person providing the specimens,

    (ii) the provision that it is alleged the person has contravened, namely, section 4(4) or 5(4) of the Act of 2010, and

    (iii) his or her name and number,


    (b) following the automatic production of the statements referred to in section 13(2) of the Act of 2010, sign the statements.”

  13. The text of the statutory instrument immediately after regulation 4 is here reproduced in full.


    Road Traffic Act, 2010, section 13 — statementApparatus:

    Serial Number:

    Garda Síochána Station:

    Test Number:

    Date of start of test:

    Person who provided specimens



    Date of Birth:



    Test g/100ml Time


    Simulator Check 1


    Breath Specimen 1


    Breath Specimen 2


    Simulator Check 2

    The specimen to be taken into account for the purposes of section ______________ of the Road Traffic Act, 2010 is specimen ______________ above. The concentration of alcohol in the breath for the purposes of that section is ______________ microgrammes of alcohol per 100 millilitres of breath.

    Member of An Garda Síochána




    I, the undersigned, hereby acknowledge the receipt of this statement.


    Signature of person who provided specimens of breath.


    An tAcht um Thrácht ar Bhóithre, 2010, Alt...

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