DPP (Coughlan) v Swan

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: EGAN J.,BLAYNEY J.
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-SC 1888
• Docket Number: (251/92)
• Date: 01 January 1994

1993 WJSC-SC 1888

THE SUPREME COURT

Finlay C.J.

O'Flaherty J.

Egan J.

Blayney J.

Denham J.

(251/92)

DPP v. SWAN

IN THE MATTER OF SECTION 16 OF

THE COURTS OF JUSTICE ACT, 1947

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDACIARAN COUGHLAN)

Complainant

and

ANTHONY SWAN

Defendant

Citations:

COURTS OF JUSTICE ACT 1947 S16

ROAD TRAFFIC (AMDT) ACT 1978 S13(1)(b)

ROAD TRAFFIC (AMDT) ACT 1978 S13(3)(b)

ROAD TRAFFIC (AMDT) ACT 1978 S13(3)

ROAD TRAFFIC ACT 1961 S49(6)

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC (AMDT) ACT 1978 S10

CONNOLLY V SALINGER 1982 ILRM 482

ROAD TRAFFIC ACT 1961 S19

ROAD TRAFFIC (AMDT) ACT 1978 S13

ROAD TRAFFIC (AMDT) ACT 1978 S13(3)(a)

Synopsis:

ROAD TRAFFIC

Motorist

Alcohol test - Requirement - Compliance - Specimen - Production - Failure - Choice between blood and urine sample - Urine option exercised - Conviction for failure to comply with requirement that urine specimen be provided - Whether conviction valid - Road Traffic (Amendment) Act, 1978, s. 13 - (251/92 - Supreme Court - 11/5/93) - [1994] 1 ILRM 314

|Director of Public Prosecutions v. Swan|

1 JUDGMENT delivered on the 11th day of May 1993by EGAN J. [FINLAY, O'FLAHERTY DENHAM CONC]

2 This is a case stated by a judge of the Circuit Court when an appeal from the District Court of a conviction against the defendant was heard by him that the defendant being a person arrested under s. 49(6) of the Road Traffic Act, 1961and brought to a Garda Station, did fail, following a requirement under subs. (1)(b) of s. 13of the Road Traffic (Amendment) Act, 1978, to comply with the requirement of a designated registered medical practitioner in relation to the taking of a specimen of urine contrary to s. 13(3) of the Road Traffic (Amendment) Act, 1978.

3 There was evidence that Dr. Lionel Williams was a registered medical practitioner on the 31st August, 1991 (the day on which the defendant was brought to the Garda Station) and on the date when he gave evidence. His evidence was to the effect that at 5.38 a.m. on that date he made the requirement specified in s. 13 of the 1978 Act in relation to the taking of a specimen of blood or the provision of a specimen of urine. Evidence was further given that the defendant opted to give a specimen of his urine and was provided with a jug and facilities to urinate and attempted to provide a specimen at 5.39 a.m. but failed and he further failed to do so at 5.45 a.m. Garda Coughlan told the defendant of the consequences of refusalor failure to provide a specimen and he told the defendant that he could if he wished change his mind and permit the doctor to take from him a specimen of his blood. The defendant again opted to provide a specimen of his urine at 5.55 a.m. but failed to provide a specimen and indicated that he was unable to do so.

4 Sec. 13(1)(b) of the Road Traffic (Amendment) Act, 1978provides that where a person arrested under s. 49(6) of the Principal Act (as inserted by s. 10 of the 1978 Act) has been brought to a Garda Station, a member of the Garda Siochana may at his discretion "require the person to permit a designated registered medical practitioner to take from the person a specimen of his blood or, at the option of the person, to provide for the designated medical practitioner a specimen of the person's urine".

5 Subs. (3) of s. 13 provides as follows:-

"(3) A person who, following a requirement under s. (1)(b)-"

(a) refuses to comply with such a requirement, or

(b) refuses or fails to comply with a requirement of a designated registered medical practitioner in relation to the taking under this section of a specimen of blood or the provision of urine, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or, at the discretion of the Court, to a fine not exceeding £500, or to both."

6 The learned judge of the Circuit Court requests the opinion of this Court whether on the above facts and in the absence of a requirement made by a registered medical practitioner other than in the terms hereinbefore referred to, the defendant should be acquitted of the offence the subject matter of the appeal before him.

7 Different arguments were advanced on behalf of the defendant but I do not deem it necessary to deal with them all as I have reached a clear conclusion in the matter.

8 The case stated refers to "the offence the subject matter of the appeal before me". The order of conviction in the District Court recites a failure by the defendantto comply with the requirement of a designated medical practitioner in relation to the taking of a specimen of urine. The appeal, therefore, is concerned with an alleged failure to comply with a requirement in relation to the taking of a specimen of urine.

9 The obligation under the section is to permit a designated medical practitioner to take from the person a specimen of his blood. The person, however, is given the option of providing a specimen of his urine. It is quite simply, as the section states, an option. If it is availed of, it relieves the person from the obligation to permit a specimen of his blood to be taken from him.

10 In the case of Connolly v. Salinger 1982 I.L.R.M. p. 482 on a prosecution under s. 49 the District Justice stated a case to the High Court for the determination of questions of law which included the following question:- If a person is genuinely unable to pass urine is he guilty of the offence of "failing" to comply with such requirement?The answer given by the High Court was "Yes". On a reading of the head-note this answer would appear to have been affirmed on appeal to the Supreme Court but I am satisfied that the head-note is misleading. The judgment of the Court was given by Griffin J. who did not approve of the question but stated as follows:-

"The question which does arise for determination on the facts of this case, and which was argued in this Court, is not whether such person is guilty of the offence of failing to comply with the requirement referred to, but whether, in those circumstances, having failed to provide a sample of his urine, it is then permissible, under the provisions of s. 13(1)(b), for the designated medical practitioner, with the consent of such person, to take from him a sample of his blood, and whether such specimen of blood is one taken in compliance with the requirement provided for in s. 13(1)(b)".

11 This really involves two questions and both were answered in the affirmative. Griffin J. goes on to say:-

"The subsection provides alternatives which the person may choose, and if he chooses to provide aspecimen of urine, and is unable to do so, he is not, in my opinion, excluded from subsequently choosing the alternative of permitting a specimen of blood to be taken from him. Unless he does so, he would have"failed" to provide a specimen of his urine, within the meaning of s. 13(3)."

12 He later continues:-

"In my view, this supports the construction that the choice or option to provide a specimen of...