DPP (Garda Elaine Rowan) v Ennis

 
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[2011] IESC 46

THE SUPREME COURT

Murray J.

Hardiman J.

Macken J.

201/2007
DPP (Garda Rowan) v Ennis
IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA ELAINE ROWAN)
Prosecutor

and

FRANK ENNIS
Accused

201/2007 - Hardiman Murray Macken - Supreme - 6/12/2011 - 2011 17 4026 2011 IESC 46

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S21

ROAD TRAFFIC ACT 1994 S21(1)

ROAD TRAFFIC ACT 1994 (SECTION 17) REGS 1999 SI 326/1999 REG 4

ROAD TRAFFIC ACT 1994 (SECTION 17) REGS 1999 SI 326/1999 REG 5

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1961 S49(8)

DPP v MOONEY 1992 1 IR 548 1993 ILRM 214 1992/5/1581

CHRISTIE & ANOR v LEACHINSKY 1947 AC 573 1947 1 AER 567

ROAD TRAFFIC ACT 1994 S13(1)

DPP v KEMMY 1980 IR 160 1980/5/833

O'BROIN v DISTRICT JUSTICE RUANE 1989 IR 214 1989 ILRM 732 1989/3/637

CRIMINAL LAW

Road traffic offence

Drink driving - Arrest - Grounds of arrest - Case stated - Whether failure of arresting garda to recite specific statutory section for arrest rendered arrest unlawful - Whether technical or precise language must be used - Whether arrested person knew in substance reasons for arrest - Whether sufficient for reasons for arrest to be conveyed in ordinary language - Evidence - Intoxyliser - Statement - Presumption - Whether evidential burden on accused capable of discharge based upon prosecution evidence, answers given in cross examination and statutory presumptions - Whether question in cross examination posed in general form admissible - Whether rebuttal of presumption of sufficiency of statement resulted in deprivation of evidential effect of statement of fact therein - Director of Public Prosecutions v Mooney [1992] 1 IR 548, Director of Public Prosecutions v Kemmy [1980] IR 160 and O'Broin v District Judge Ruane [1989] IR 214 followed - Road Traffic Act 1961 (No 24), ss 49(4) & (6) - Road Traffic Act 1994 (No 7), ss 13, 17 & 21 - Road Traffic Act 1994 (Section 17) Regulations (SI 326/1999), rr 4 & 5 - Questions answered (201/2007 - SC - 6/12/2011) [2011] IESC 46

Director of Public Prosecutions v Ennis

Facts: The Circuit Court stated a case to the Supreme Court on various points of law as to whether the precise section of the Road Traffic Act 1994 under which a person was being arrested for drink-driving had to be expressly invoked, as to the manner in which the evidential burden was discharged by the accused in relation to compliance with the Road Traffic Act 1994 (s. 17) Regulations, 1999 and as to when the presumption under s. 21 Road Traffic Act 1994 was deemed rebutted its effects thereafter.

Held by the Supreme Court per Hardiman J. (Murray, Macken JJ. concurring) that the case would be remitted to the trial judge to be considered with the foregoing findings. Any evidential burden resting on the accused was capable of being discharged by the combination of direct evidence, his evidence in cross-examination and any relevant statutory presumption. If a statutory scheme positively required that an arrest be under a specific section or subsection, then it was manifest that proving the legality of the arrest may or may not involve proof that the arrest took place under one of the specified sections. If the presumption under s. 21 was rebutted then the s. 17 statement would be without evidential effect as regards any statement of fact or matter to which the rebuttal applied.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Hardiman delivered the 6th day of December, 2011.

2

On a date in 2007, not unfortunately readily legible in the documentation before this Court, His Honour Judge Terence O'Sullivan stated a case for the opinion of this Court in relation to certain points of law which will be set out below.

3

Judge O'Sullivan was hearing appeals from the District Court and there came before him the appeal of the defendant, Frank Ennis, from his conviction on the 14 th February, 2006, for 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 and as amended by s.23 of the Road Traffic Act, 2002.

4

In the Circuit Court, according to the case stated and signed by the learned Circuit Judge, the evidence on the hearing of the appeal followed the familiar pattern of evidence in breath/alcohol cases. That is to say, the evidence was not directed at establishing that the defendant was unfit to drive a mechanically propelled vehicle by reason of drunkenness, but rather that he did in fact drive a car in a public place "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 thirty-five micrograms per hundred millilitres of breath".

5

Accordingly, the proofs required of the prosecution were: that the accused was driving a car in a public place at a particular time; that he had been lawfully arrested under a relevant section of the Road Traffic Acts, had been brought to a garda station; that a lawful demand to provide a specimen of his breath had been made of him pursuant to s.13 of the Road Traffic Act, 1994; that the specimen was duly taken from him within the relevant time; and that the machine used to take the specimen had produced a "duly completed statement" taken in accordance with the Road Traffic Act, 1994 (s.17) Regulations, 1999 and that this "duly completed statement" indicates a concentration of alcohol in the breath greater than the permitted level. Proof of this latter matter may be adduced by means of a "statement" by virtue of the provisions of s.21 of the Road Traffic Act, 1994. It is convenient to set out the provisions of s.21 (1) at this stage:

"A duly completed statement purporting to have been supplied under s.17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961- 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Member of the Garda Síochána concerned with the requirements imposed on him by or under this part prior to and in connection with the supply by him pursuant to s.17(2) of such statement." (Emphasis added)

6

The effect of this is that the concentration of alcohol in the defendant's breath may be proved by a "duly completed statement" produced by the machine which conducts the analysis and permits the inputting of information in any particular case by a member of the gardaí. The subsection just quoted also provides a presumption in favour of the prosecution in relation to the due performance of the Obligations of a member of An Garda Síochána in relation to the taking of an evidential breath specimen.

7

Those obligations are contained in the Regulations referred to above, statutory instrument 326 of 1999, and will be, so far as relevant, set out below. The significance of compliance with these regulations is that it is only "a duly completed statement" which has the evidential effect mentioned in the subsection. This ability to prove the central fact of the case by certificate is a statutory innovation which greatly favours the prosecution.

8

For present purposes the relevant parts of the Regulations mentioned are Articles 4 and 5 which provide as follows:

9

2 "(4) The statements to be produced, pursuant to s.17 of the Act of 1994, shall be in the form set out in the schedule to these Regulations.

10

(5) For the purpose of completing the statements referred to in...

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