DPP (O'Brien) v Hopkins

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 07 July 2009
• Neutral Citation: [2009] IEHC 337
• Court: High Court
• Date: 07 July 2009

[2009] IEHC 337

THE HIGH COURT

Record No: 495 SS/2009

DPP (O'Brien) v Hopkins

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 50(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA GARETH O'BRIEN)

PROSECUTOR

AND

DAVID HOPKINS

ACCUSED

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51(1)

ROAD TRAFFIC ACT 1994 S18

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 2006 S4

ROAD TRAFFIC ACT 2006 S4(4)(A)(i)

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S13(1)(B)

ROAD TRAFFIC ACT 1994 S18(2)

ROAD TRAFFIC ACT 1994 S19

ROAD TRAFFIC ACT 1994 S21(3)

ROAD TRAFFIC ACT 1994 S21

DPP v SOMERS 1999 1 IR 115 1998/16/611

DPP v O'NEILL UNREP SUPREME 30.7.1984 1984/6/1983

DPP (O'REILLY) v BARNES 2005 4 IR 176 2005/18/3786 2005 IEHC 245

DPP v CROOM-CARROLL 1999 4 IR 126 2000 1 ILRM 289 1999/9/2177

DPP v FREEMAN UNREP MACMENAMIN 21.4.2009 2009 IEHC 179

ROAD TRAFFIC ACT 1994 S17

R v SANG 1980 AC 402 1979 3 WLR 263 1979 2 AER 1222

DPP v CLIFFORD 2002 4 IR 398 2002/8/1899

DPP v COLLINS 1981 ILRM 447

CRIMINAL LAW

Road traffic offences

Blood sample - Error on label - Failure by doctor to record on label date on which specimen taken - Whether requirements of statute satisfied - Statute - Interpretation - Risk of prejudice to accused - Whether accused required to demonstrate some form of prejudice - Significance of labelling error - Correct approach to be taken where objection is of technical nature -- Whether accused hampered in defence - Evidence - Whether allegations of prejudice supported by evidence - DPP v Somers [1999] 1 IR 115; DPP v O'Neill (Unrep, SC, 30/7/1984); DPP( O'Reilly) v Barnes [2005] IEHC 245, [2005] 4 IR 176; Rutledge v Judge Clyne [2006] IEHC 146, (Unrep, HC, Dunne J, 7/4/2006); DPP v Croom-Carroll [1999] 4 IR 126; DPP v Moorehouse [2005] IESC 52, [2006] IR 421; DPP v Collins [1981] ILRM 447; R v Sang [1980] AC 402 and DPP v Clifford [2002] 4 IR 398 considered - DPP v Freeman [2009] IEHC 179, (Unrep, HC, MacMenamin J, 21/4/2009) distinguished - Summary Jurisdiction Act 1857 (20 & 21 Vic, c 43) s 2 - Courts (Supplemental Provisions) Act 1961 (No 39), s 50(1) - Road Traffic Act 1961 (No 24), s 49 - Road Traffic Act 1994 (No 7), ss 10, 13(1)(b), 17, 18, 19 and 21 - Road Traffic Act 2002 (No 12), s 23 - Road Traffic Act 2006 (No 23), s 4 - Held that District Judge erred in law in dismissing charge against accused (2009/495SS - Hedigan J - 7/7/2009) [2009] IEHC 337

DPP (O'Brien) v Hopkins

Facts The accused had been charged with an offence contrary to section 49 of the Road Traffic Act, 1961 as amended on the basis of the concentration of alcohol in his blood exceeding 80 milligrammes of alcohol per 100 millilitres of breath. It was the case that on one of the sample containers the doctor had recorded the accused's date of birth (incorrectly) rather than the date of the taking of the sample. In the District Court it was held that the error in question amounted to a breach of section 18 of the 1994 Road Traffic Act and the case was dismissed. A letter had been produced from the relevant laboratory stating that it would not be willing to examine the sample on the basis that the date listed on the container was not correct. A case was then stated for the opinion of the High Court as to whether the relevant provisions of the Road Traffic Act, 1994 had been complied with.

Held by Hedigan J in answering the case stated as follows. The correct approach in such cases where the objection was of a technical nature was to require the accused to demonstrate some form of prejudice. The letter from the laboratory was of extremely limited probative value. Nothing had been put before the court which would indicate that the labelling error had such a bearing on the fairness of the blood specimen procedure so as to render any of the evidence obtained thereunder inadmissible. The District Judge ought to have considered whether any real prejudice arose from the breach in question before deciding to dismiss the charge. It was clear that none of the admissible evidence disclosed any such prejudice.

Reporter: R.F.

1 Mr. Justice Hedigan delivered the 7th day of July, 2009

2 1. This is an appeal by way of Case Stated by District Judge Angela Ní Chondúin pursuant to section 2 of the Summary Jurisdiction Act 1857, as extended by section 50(1) of the Courts (Supplemental Provisions) Act 1961, on the application of the prosecutor who was dissatisfied with the determination of the learned District Judge as being erroneous in point of law.

3 2. The opinion of the High Court is sought in relation to the following questions:-

4 (a) Does the failure by the doctor who administers a blood alcohol test to record on the label of the blood container provided to the accused, the date on which the specimen was taken amount to a breach of section 18 of the Road Traffic Act 1994 ('the 1994 Act')?

5 (b) Having concluded that there was a breach of section 18 of the 1994 Act, was the learned District Judge entitled as a matter of law to dismiss the charge in the absence of any explanation or excuse offered in evidence by the prosecution for the breach?

6 (c) In order to decide whether to dismiss the charge on the basis of a breach of section 18 of the 1994 Act, was the learned District Judge obliged to consider whether the accused had been prejudiced as a result of the breach?

7 (d) If evidence of prejudice is in fact required, was the evidence before the learned District Judge sufficient to justify the dismissal of the charge?

I. Factual and Procedural Background

8 4. At a sitting of the District Court in Wicklow Town on the 19 ^th of May 2008, the accused appeared to face a charge under sections 49(2) and 49(6)(a) of the Road Traffic Act 1961 ('the 1961 Act'), as inserted by section 10 of the 1994 Act and amended by section 23 of the Road Traffic Act 2002. The summons in question specified that the accused had, on the 6 ^th of May 2007, driven his vehicle in a public place such that within three hours after so driving, the concentration of alcohol in his blood had exceeded a concentration of 80 milligrammes of alcohol per 100 millilitres of breath.

9 5. During the course of the hearing, the prosecuting member of An Garda Síochána, Garda Gareth O'Brien, gave evidence that he was fully trained in the use of the Draeger Alcometer and the Lion Intoxilyser. He explained that at around 00.40 on the 6 ^th of May 2007, the accused had been stopped at a mandatory alcohol testing checkpoint which had been duly authorised pursuant to section 4 of the Road Traffic Act 2006 ('the 2006 Act'). The accused was required to provide a breath specimen pursuant to section 4(4)(a)(i) of the 2006 Act and the potential consequences of non-compliance were explained to him. The accused complied with this lawful demand and the test on the Draegon Alcometer returned a result of 'fail'. Garda O'Brien formed the opinion that the accused may have committed an offence contrary to section 49 of the 1961 Act. He arrested the accused and cautioned him in the usual terms.

10 6. Garda O'Brien gave further evidence that the accused was transported to Store Street Garda Station and introduced to the Member in Charge. A custody record was completed in respect of the accused. The Notice of Rights was then read to the accused, who signed the custody record to acknowledge receipt of those rights. At approximately 01.00, Garda O'Brien took the accused to an interview room to begin a period of observation. During the course of this period, the accused explained that for medical reasons he would be unable to provide a specimen of breath. Garda O'Brien arranged for a doctor to be contacted, who arrived at the Garda station within a short period. Garda O'Brien required the accused, pursuant to section 13(1)(b) of the 1994 Act to provide a sample of either urine or blood and informed him of the potential consequences of non-compliance. The accused opted to provide a blood sample, which was taken by the doctor using a specialised blood kit provided by Garda O'Brien. The sample was divided into two parts, each of which were placed within a sealed container. The accused was given the option, pursuant to section 18(2) of the 1994 Act, to retain one of the containers and chose to do so. On the label of this container, where the doctor should have recorded the date of taking the sample, he inadvertently recorded the date of birth (incorrectly) of the applicant He was then released from custody. The container which Garda O'Brien had retained was delivered to the Medical Bureau of Road Safety on the 8 ^th of May 2007. It was tested and returned a reading of 106 milligrammes of alcohol per 100 millilitres of blood.

11 8. Under cross-examination by counsel for the accused, the specimen container which had been provided to the accused was shown to Garda O'Brien. He confirmed that it was one of the two containers from the night in question as it bore the same serial number. He also confirmed that the sample was sealed and labelled with the name of the accused. He agreed that the specimen container also bore a date of birth of the 30 ^th of March 1938. It was put to him that the accused's actual date of birth, as specified on the custody record was the 30 ^th of March 1948. The contents of a letter from Claymon Laboratories, a private pathology laboratory based in Dublin, were then put to Garda O'Brien. The letter stated that the laboratory would not be willing to examine the specimen on the basis that the date listed on the specimen container was not the correct date of birth of the accused. It is important to...