DPP (at the suit of Garda Conor Gurn) v McGrath

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Garrett Simons
Judgment Date12 April 2019
Neutral Citation[2019] IEHC 236
Docket Number2018 No. 1430 SS
Date12 April 2019

IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA CONOR GURN)
PROSECUTOR
AND
ANTHONY McGRATH
DEFENDANT

[2019] IEHC 236

2018 No. 1430 SS

THE HIGH COURT

Consultative case stated – Prosecution – Evidential presumptions – Consultative case stated from the District Court – Whether the evidential presumptions applicable to a statement applied equally to a photocopy of such a statement

Facts: This matter came before the High Court by way of a consultative case stated from the District Court. The case stated concerned a prosecution for driving while under the influence of alcohol. The net issue for determination by the High Court was whether the evidential presumptions applicable to a statement, which set out the details of the analysis of a breath specimen, applied equally to a photocopy of such a statement. The issue arose in circumstances where the original statement had, seemingly, been mislaid.

Held by the Court that, in the particular circumstances of this case, the prosecution was entitled to rely on the photocopy of the statement, and that same gave rise to the evidential presumptions provided for under s. 20 of the Road Traffic Act 2010.

The Court held that, in that regard, it respectfully endorsed the obiter dicta of the High Court in Fitzpatrick v Director of Public Prosecutions [2007] IEHC 383 as representing a correct statement of the legal effect of s. 30 of the Criminal Evidence Act 1992.

Consultative case stated.

JUDGMENT of Mr. Justice Garrett Simons delivered on 12 April 2019.
OVERVIEW
1

This matter comes before the High Court by way of a consultative case stated from the District Court. The case stated concerns a prosecution for driving while under the influence of alcohol. The net issue for determination by the High Court is whether the evidential presumptions applicable to a statement, which sets out the details of the analysis of a breath specimen, apply equally to a photocopy of such a statement. The issue arises in circumstances where the original statement has, seemingly, been mislaid.

2

The prosecution was in a position to produce a photocopy of the statement to the District Court, and to supplement that by way of oral evidence from the Garda Sergeant who had operated the apparatus used to analyse the breath specimens.

3

In order to answer the case stated, it is necessary for this court to determine the legal effect of section 30 of the Criminal Evidence Act 1992. That section provides as follows.

‘30.(1) Where information contained in a document is admissible in evidence in criminal proceedings, the information may be given in evidence, whether or not the document is still in existence, by producing a copy of the document, or of the material part of it, authenticated in such manner as the court may approve.

(2) It is immaterial for the purposes of subsection (1) how many removes there are between the copy and the original, or by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made.

(3) In subsection (1) “document” includes a film, sound recording or videorecording.’

4

For the reasons set out herein, I am satisfied that—in the particular circumstances of this case—the prosecution was entitled to rely on the photocopy of the statement, and that same gave rise to the evidential presumptions provided for under section 20 of the Road Traffic Act 2010. In this regard, I respectfully endorse the obiter dicta of the High Court (O'Neill J.) in Fitzpatrick v. Director of Public Prosecutions [2007] IEHC 383 as representing a correct statement of the legal effect of section 30 of the Criminal Evidence Act 1992.

CONSULTATIVE CASE STATED
5

This matter comes before the High Court by way of a consultative case stated from the District Court (Judge Gráinne Malone) dated 15 November 2018. The consultative case stated is a model of its type, and presents both the factual background and the legal issues with admirable clarity and conciseness.

6

The Defendant had been charged before the District Court with an offence contrary to section 4(4)(b) of the Road Traffic Act 2010. More specifically, the Defendant had been charged with the offence of driving a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that the concentration of alcohol in his breath exceeded the prescribed concentration. The Defendant had pleaded not guilty to the charge.

7

Two breath specimens had been taken from the Defendant by a Garda Sergeant, and these specimens had been analysed by the use of what is colloquially known as a ‘breathalyser’ or ‘intoxilyzer’. This apparatus is capable of generating a written statement which sets out inter alia the results of the analysis of the breath specimens. Section 20 of the Road Traffic Act 2010 provides that certain evidential presumptions apply to a duly completed statement.

8

During the hearing of the case before the District Court, the prosecutor sought to prove the concentration of alcohol in the Defendant's breath at the relevant time by relying on a photocopy of a statement which had been produced pursuant to section 13 of the Road Traffic Act 2010. A question then arose as to whether the evidential presumptions under section 20 applied to the photocopy.

9

The evidence which had been tendered before the District Court in relation to section 13 is summarised as follows in the case stated.

‘8. Garda Gurn conveyed the Defendant to Blanchardstown Garda Station, where they arrived at 9.20 p.m. The Defendant was subsequently processed in accordance with the Custody Regulations by the Member in Charge of the station, Sergeant O'Shaughnessy. Garda Gurn then introduced the Defendant to Sergeant Pat Duggan, a trained Evidenzer operator. Garda Gurn noted that Sergeant Duggan took specimens of breath from the Defendant pursuant to ss. 12 and 13 of the Road Traffic Act 2010. Garda Gurn was ultimately handed a s. 13 statement by Sergeant Duggan in respect of the breath testing. At this stage, Garda Gurn noted that the original s. 13 statement which he had been handed had been kept in an envelope attached to the back of his case file but that this had been lost. He tendered a document in evidence which he stated was a photocopy of the original s. 13 statement, and was the same copy as the one furnished to the Defendant as part of disclosure. The copy statement which was tendered in evidence is appended to this case stated at Appendix B. At this juncture, Ms. McCarthy informed the court that an application would be made in due course to have that document admitted in evidence pursuant to s. 30 of the Criminal Evidence Act 1992.

9. Sergeant Pat Duggan was then called to give evidence. He stated that he was a trained operator of the Evidenzer IRL machine. He was on duty when the Defendant was brought to Blanchardstown Garda Station by Garda Gurn. At 9.33 p.m., he commenced a twenty minute period of observation of the Defendant in the custody area of Blanchardstown Garda Station. At 9.53 p.m., he brought the Defendant to the doctor's room for the purposes of providing breath specimens using the Evidenzer IRL machine. Sergeant Duggan stated that at 9.55 p.m., he entered the Defendant's details into the Evidenzer IRL machine. He then made a requirement pursuant to s. 12(1)(a) of the Road Traffic Act 2010 for the Defendant to provide two specimens of his breath by blowing into the Evidenzer machine and outlined the criminal penalties attached to a failure to comply with this request. The Defendant duly provided these breath specimens, providing his first sample at 10.05 p.m. and the second sample at 10.08 p.m.’

10. Sergeant Duggan noted that the Evidenzer then printed two s. 13 statements. These were signed by Sergeant Duggan and handed to the Defendant to sign. The Defendant signed the statements and returned both of them to Sergeant Duggan, who then handed one of the statements back to the Defendant. Sergeant Duggan noted that the s. 13 statement indicated that the level of alcohol in the Defendant's system at the time of testing was 74 mcg alcohol per 100 ml breath.’

10

At paragraphs 12 and 14 of the consultative case stated, the District Court judge records that she was satisfied on the evidence of Garda Gurn that the section 13 statement tendered in evidence was an accurate copy of the original document.

11

The question posed in the case stated is expressed in the following terms.

‘In the circumstances of the present case, where the original s. 13 statement is not available but a photocopy of that statement has been tendered in evidence by the prosecution, does the evidential presumption of validity under s. 20(1) of the Road Traffic Act 2010 apply to that photocopied statement?’

STATUTORY PROVISIONS
12

The defendant had been charged with an offence contrary to section 4(4)(b) and section 4(5) of the Road Traffic Act 2010. The offence is defined as follows.

‘(4) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her breath will exceed a concentration of—

[…]

(b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.

(5) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both.’

13

The procedure for taking and assessing a breath specimen is prescribed under Part 4 of the Road Traffic Act 2010, and under the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2015 (‘ the...

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