Director of Public Prosecutions v Malai
| Jurisdiction | Ireland |
| Judge | Ms Justice Ní Raifeartaigh |
| Judgment Date | 11 November 2020 |
| Neutral Citation | [2020] IECA 304 |
| Docket Number | Appeal Record No.: 2019/410 |
| Court | Court of Appeal (Ireland) |
| Date | 11 November 2020 |
IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947
[2020] IECA 304
Birmingham P.
Edwards J.
Ní Raifeartaigh J.
Appeal Record No.: 2019/410
THE COURT OF APPEAL
Consultative case stated – European Communities Act 1972 (Interpretation and Translation for Persons in Custody in Garda Siochána Stations) Regulations 2013 – Unlawful detention – Trial judge stating a question of law for determination by the Court of Appeal – Whether breaches of the European Communities Act 1972 (Interpretation and Translation for Persons in Custody in Garda Siochána Stations) Regulations 2013 rendered the detention of the defendant unlawful
Facts: At a sitting of Dublin Circuit Criminal Court hearing appeals against orders of the District Court, the defendant, Mr Malai, appeared to answer a criminal complaint on a charge sheet which alleged that he had driven 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 contrary to ss. 4(4)(a) and (5) of the Road Traffic Act 2010. He pleaded not guilty and the case proceeded to trial. Defence counsel made an application for a direction of no case to answer. It was submitted that the European Communities Act 1972 (Interpretation and Translation for Persons in Custody in Garda Siochána Stations) Regulations 2013 had not been complied with. The trial judge held that there was a breach of the 2013 Regulations. The trial judge stated the following question of law for determination by the Court of Appeal, pursuant to s. 16 of the Courts of Justice Act 1947: “Having determined that there was a breach of the European Communities Act 1972 (Interpretation and Translation for Persons in Custody in Garda Siochána Stations) Regulations 2013, is the detention of the defendant therefore rendered unlawful or any evidence which flowed therefrom inadmissible in the within proceedings?”
Held by the Court that the case stated would be answered as follows: (1) the breaches of the Regulations found by the trial judge in the circumstances of the case did not render the detention of the defendant unlawful; (2) as to the admissibility of the evidence obtained by means of the breath sample, the trial judge had a discretion to admit or exclude the evidence in light of the facts of the case in accordance with the ordinary principles relating to the admissibility of evidence relating to evidence obtained in a context where there had been an illegality but not a breach of a constitutional right. In that regard, it was relevant that there was no causal link between the breaches of the Regulations and the obtaining of the breath specimen. However, the trial judge should consider all of the relevant factors in light of the caselaw in exercising his discretion as to whether or not to admit the evidence in question.
Case stated - question answered.
This is a consultative case stated by Judge James O'Donoghue from the Circuit Court pursuant to s. 16 of the Courts of Justice Act 1947 on a point of law. In general terms it relates to the duties of a member in charge with regard to the provision of language interpretation when an arrestee who is a foreign national is brought to a Garda station. The specific circumstances in which this arises are as follows.
At a sitting of Dublin Circuit Criminal Court hearing appeals against orders of the District Court, the accused Mr. Malai appeared to answer a criminal complaint on a charge sheet which alleged that he had driven 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 contrary to ss.4(4)(a) and (5) of the Road Traffic Act 2010, an offence commonly and colloquially known as “drink driving”. He pleaded not guilty and the case proceeded to trial. The prosecutor called one witness, the prosecuting Garda.
The District Judge found the following facts proved or admitted or agreed:-
(a) Garda Hogan gave evidence that on 13 th December, 2013 at approximately 1:00am. he observed a red Skoda Octavia driving up Bath Avenue towards Grand Canal Upper. The vehicle was dragging a parking cone under the front bumper as it drove along. He activated his blue lights and siren and indicated for the driver to stop which it did. He approached the car and spoke to the driver and requested the driving licence. There were three other passengers in the car. Garda Hogan said that while speaking to the driver, Mr. Malai, he noticed a smell of alcohol from his breath, that his eyes were “glassy” and that his speech was “slurred”. He said that based on the manner of driving and “indicative factors”, he formed the opinion that the driver was under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle. He told him he had formed such an opinion and was arresting him for an offence contrary to s.4 of the Road Traffic Act 2010. He said that he explained to the driver in ordinary language that he was arresting him on suspicion of drink driving.
(b) Garda Hogan stated that he cautioned him and then asked him if he had been drinking to which the accused responded that he had two drinks at a Christmas party. The accused was not handcuffed and was conveyed to Irishtown Garda Station.
(c) Garda Hogan stated that he arrived at Irishtown Garda Station at 1:13am and he was introduced to the jailer, Garda Adrian Kelly, who made entries in the custody record and provided the defendant with notice of rights under the Criminal Justice At, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987. The defendant signed the custody record in acknowledgment of having received his rights.
(d) Garda Hogan said he commenced a period of observation of the defendant for twenty minutes during which time he observed the defendant consume nil by mouth. He explained to the defendant at the beginning of the period that he was commencing a period of observation and that he was fully trained in the use of the apparatus for determining the concentration of alcohol in the breath and explained the procedure that would be followed. Garda Hogan stated that the defendant indicated that he understood.
(e) Garda Hogan stated that at 1:33am together with another garda he brought the defendant to a doctor's room for the purpose of providing a breath sample. Garda Hogan entered the details of the prisoner into the machine and selected the language English.
(f) Garda Hogan stated that at 1:37am he made a requirement of the defendant pursuant to s.12(1)(a) of the Road Traffic Act 2010 saying that he was requiring him to provide two specimens of breath by exhaling into the apparatus for the purpose of determining the concentration of alcohol in his breath. He also informed the defendant that the failure or refusal to comply with the requirement was an offence under s.12(2) of the Road Traffic Act 2010 for which there was a penalty on conviction of a fine not exceeding €5,000 or imprisonment for a term not exceeding six months or both. He also informed the defendant that failure or refusal to comply with the requirement could result in disqualification for a period of up to four years for the first offence and not less than six years for a second or subsequent offence.
(g) Garda Hogan stated that at 1:42am the defendant provided two breath specimens and the machine produced two identical receipts which showed a concentration of 55 microgrammes of alcohol per 100 millilitres of breath. Garda Hogan separated the statements and handed them to the defendant who also signed both. The defendant retained one copy and handed the remaining copy back to Garda Hogan.
(h) Garda Hogan returned the defendant to the custody area and he was later charged.
(i) Under cross-examination. Garda Hogan stated that the manner of driving was not dangerous or careless but it was the fact of the traffic cone under the car which gave rise to a suspicion. He confirmed that the accused pulled over when requested and cooperated in answering questions. One of the matters put to Garda Hogan was that he was mistaking the defendant's poor English and/or accent with slurring his speech to which he replied that he did not accept this and said he was satisfied that the defendant could speak English.
(j) Other matters were put to the Garda in cross-examination which are not relevant to this case stated.
(k) Under cross-examination, Garda Hogan could not recall if he was advised by the member in charge of whether the latter was satisfied that an interpreter was not required or whether the member in charge informed the accused that an interpreter was not required. He stated that the accused did not request an interpreter. It was put to the Garda in cross-examination that the custody record did not contain any information in the section concerning foreign nationals and that it was not indicated whether or not an interpreter was required. He could not comment on this but maintained that he himself was satisfied that the defendant did not require an interpreter. It was put to him that the defendant's level of English was not to a level as being made out by Garda Hogan and that it was clear that he required the assistance of an interpreter for the court hearing. Garda Hogan did not accept this and stated that the defendant spoke English well.
Defence counsel made an application for a direction of no case...
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