Dowling & Ors -v- Judge Brennan & Anor,  IEHC 522 (2011)
|Docket Number:||2007 973 JR|
|Party Name:||Dowling & Ors, Judge Brennan & Anor|
THE HIGH COURT2007 973 JR
PATRICK DOWLING, PATRICK HILLIARD,
MICHAEL HALTON AND BRONAGH CRONIN APPLICANTSAND
JUDGE FLANN BRENNAN AND
DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTS
Judgment of Mr. Justice O’Keeffe delivered on the 11
day of November, 2010
This is an application for judicial review in which the following relief is sought:-
(i) In respect of the first named applicant, an order of certiorari quashing the Order made by the first named respondent on 25th June, 2007, convicting the applicant of an offence 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. 23 of the Road Traffic Act 2002.
(ii) In respect of the second, third and fourth named applicants, an Order of Prohibition by way of application for judicial review restraining the second named respondent from further prosecution of the second, third and fourth named applicants.
In the grounds upon which relief is sought, it is contended:-
(i) The first named respondent erred in law in failing to dismiss the prosecution in defence of the first named applicant’s constitutional rights to be tried in accordance with natural and constitutional justice and in due course of law and in particular his rights to fair procedures and trial and his rights as guaranteed by Article 6 of the European Convention on Human Rights as applicable in Ireland having regard to the non-disclosure of documents relating to the purported ability of the Lion Intoxilyser IRL 6000 (“the Intoxilyser”) to detect mouth alcohol and ambient alcohol and in particular the manufacturer’s failure to disclose any documents including test data or calibration documents or any software or hard copy of software in relation to detection of mount alcohol and ambient alcohol including the test criteria, test Standard Operating Procedures (SOP) and results of tests carried out by Lion Manufacturing (“Lion”) that showed that the machine is capable of detecting all mouth alcohol that could affect a s. 17 printout and Lion/QSL standard operating procedures relating to the measurement of ambient environment for contaminants and how this is checked during services or any document which made reference to 0.49 micrograms or 0.5 micrograms in relation to tolerance, calibration, specification or otherwise in relation to ambient fail.
(ii) The first named respondent erred in law in failing to dismiss the prosecution in defence of the first named applicant’s constitutional right to be tried in due course of law and in particular his rights to fair procedures and trial having regard to the failure by the prosecution or Lion to disclosure software to the defence.
(iii) That by proceeding to convict the first named applicant herein the first named respondent did, in all the circumstances, act in breach and violation of the first named applicant’s rights to fair procedures and/or natural and constitutional justice and the applicant’s rights as guaranteed by Article 6 of the European Convention on Human Rights as applicable in Ireland under the terms of the European Convention on Human Rights Act 2003.
(iv) Without prejudice to the generality of the above claims that in arriving at the said decision to convict the applicant, the first named respondent erred in law and acted in breach and violation of the constitutional rights of the applicant and the rights as guaranteed under the terms of the European Convention on Human Rights in:-
(a) Convicting the applicant in circumstances where the first named applicant was, contrary to law, afforded no reasonable or effective right or opportunity to assail the case made against him.
(b) Failing to provide any or any adequate reasons as to why, in the circumstances of the evidence before him and arguments offered, the first named respondent did determine that the evidence before the first named respondent was sufficient upon which to found a satisfaction beyond reasonable doubt that the applicant was, in fact, guilty of the offence charged.
(v) The first named respondent erred in law and/or irrationally and/or without proper legal basis in convicting the applicant since no reasonable trier of fact could conclude that the statement purported to have been supplied under s. 17 of the Road Traffic Act 1994 was sufficient evidence in the proceedings under the Road Traffic Acts 1961 – 1994 of the facts stated therein (the contrary having been shown) and in particular having regard to:-
(a) The evidence heard by the first named respondent from Christopher Cuffe, Engineer and David Blyth, Head of Calibration at Lion, the manufacturer.
(b) Garda O’Donoghue’s evidence of compliance with his statutory obligations did not include any evidence of compliance with S.I. No. 326 of 1999 and in particular that the garda input information into the apparatus referred to in s. 13(1) of the Act of 1994, namely the name and address of the person providing the specimens, the section of the Road Traffic Act 1961, which it was alleged the person contravened and his or her name and number. (This ground was not proceeded with.)
In respect of the claims of the second, third and fourth named applicants, it is contended that the second, third and fourth named applicants were to be prosecuted where the second named respondent breached their constitutional rights as guaranteed by Article 6 of the European Convention on Human Rights, having regard to the non-disclosure of documents essentially on the same grounds as set out in respect of the first named applicant.
The statement of opposition on behalf of the second named respondent by way of preliminary point claims that the application is prolix and an abuse of the process in that the grounding affidavit is some 99 paragraphs long and is an attempt, in effect, to seek the High Court in judicial review proceedings to act as a court of appeal over the District Court by seeking to turn the affidavit into an unofficial transcript of what occurred. Reliance was placed on the decision of the High Court in McGonnell v. Attorney General (Unreported, High Court, 16th September, 2004) as approved by the Supreme Court at  I.R. 400, and it was contended this application was an attempt to mount a collateral attack on such decisions.
In respect of the first named applicant the second named respondent claimed the conviction was made within jurisdiction and was based on evidence. It was claimed that the trial judge had a discretion as to what level of disclosure was necessary. It was contended that nothing emerged in evidence in the case to suggest that the reading on which the first named applicant was convicted was in any way defective.
It was contended that the trial judge acted within jurisdiction in refusing to order disclosure of the software and that the first named applicant did not establish any sufficient basis as to why he should be entitled to such a disclosure in the context of a summary prosecution.
The second named respondent contended that the first named applicant was not denied an opportunity to assail the case made against when in particular a witness from the Medical Bureau of Road Safety (“the Bureau”) (Mr. David Reynolds) gave evidence to the court as did a witness from the manufacturer of the Intoxilyser (Mr. David Blyth). It was contended that the first named applicant had every opportunity in such circumstances to convince the court either that this s. 17 reading was inaccurate or that the case should be adjourned for further disclosure to be made.
It was contended that there was no failure to give sufficient reasons for the conviction and that the applicant did not express any dissatisfaction with the reasons given and cannot raise this ground ex post facto as an additional ground of complaint. It was denied that the first named applicant had rebutted the presumption that the s. 17 statement was correct.
In respect of the claims of the second, third and fourth named applicants, the second named respondent denied that there was any breach of their constitutional or convention rights to seek to proceed with the prosecution based on the then current levels of disclosure. It was contended that it was premature to speculate at this stage of the trial in respect of such applicants would be anything other than a fair trial in due course of law. It was contended that in a summary prosecution, it was open to the trial judge to determine that the accused does not require software of the machine in order to properly defend themselves. In so ruling, the trial judge, it was submitted acted within jurisdiction.
Relevant Statutory Provisions
Under s. 49(4) of the Road Traffic Act 1961, as amended, by s. 10 of the Road Traffic Act 1994, it is an offence for a person to drive while alcohol is present in his body giving rise to a concentration of alcohol in the breath exceeding 35 micrograms of alcohol per 100 millilitres of breath.
Section 49(1)(a)(iv) reads:-
“A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his breath will exceed the concentration of 35 micrograms of alcohol per 100 millilitres of breath.”
Section 13 of the Road Traffic Act 1994 permits a garda to require a person rested for a s. 49 offence to provide two specimens of his breath by exhaling into an apparatus for determining the concentration of alcohol in the breath. Section 13 is as follows:-
“(1) Where a person is arrested under section 49 (8) or 50 (10) of the Principal Act or section 12 (3), or where a person is arrested under section 53 (6), 106 (3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his...
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