DPP (Garda Mahon) v Avadenei

 
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[2015] IEHC 580

THE HIGH COURT

[No. 267 SS/2015]
DPP (Garda Mahon) v Avadenei
No Redaction Needed
Approved Judgment
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA FRANCIS MCMAHON)
PROSECUTOR

AND

MIHAI AVADENEI
ACCUSED

2015/267SS - Noonan - High - 21/9/2015 - 2015 IEHC 580

Crime & Sentencing – Practice & Procedures – S. 13 of Road Traffic Act 2010 – S.I. 541/2011 – Drunken driving prosecution – S. 52 of the Courts (Supplemental Provisions) Act 1961 – Compliance with statutory provisions in relation to defective certificates – Consultative case

Facts: The present proceedings concerned the determination of a question referred to the Court by the District Judge as to whether the District Judge was entitled to hold that the alleged document showing concentration of alcohol in the breath of the accused was not a duly completed certificate within the meaning of s.13 of the Road Traffic Act as it had not been produced both in the English and Irish languages.

Mr. Justice Noonan held that the District Judge was entitled to hold that the alleged documents showing alcohol concentration in the breath of the accused was not duly completed. The Court guided by the dicta of O'Higgins C.J. in DPP v. Kemmy [1980] I.R. 160 held that where the statute provided for a particular form of proof or evidence on compliance with certain provisions, it was essential that precise provisions should be complied with as it would affect the admissibility of the evidence. The Court observed that there might be cases where the admissibility of the document was not affected such as where there had been a technical error but the same would not hold true under s. 13 (2) of the Road Traffic Act 2010. The Court opined that the language of the said s. 13 made it clear that compliance with the statutory regime was a condition precedent for the admissibility of the certificate of alcohol concentration in evidence and in the absence of such compliance, the certificate would not be evidence in the Court of Law. The Court opined that the legislative frameworks concerning drunken-driving statutes should be interpreted strictly as compared to other statutes, because the other forensic evidence ordinarily would be admissible in evidence unless excluded.

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1. This matter comes before the court by way of consultative case stated by Judge Colin Gibbons, Judge of the District Court.

Background Facts
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2. The accused appeared before Dublin Metropolitan District Court on foot of National Charge Sheet No. 144692042 to answer a complaint that he committed the following offence:

"On the 21/04/2014 at Ellis Quay, Dublin 7 a public place in the said District Court area of Dublin Metropolitan District, did drive a mechanically propelled vehicle registration no. 01 KE 11842 while there was present in your body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in your breath did exceed a concentration of 22 micrograms of alcohol per 100 millilitres of breath, to wit 54 micrograms. Contrary to s. 4(4)(a) and (5) of the Road Traffic Act 2010."

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3. The matter proceeded before the District Judge on the 2 nd of July, 2014 at the Criminal Courts of Justice, Parkgate Street, Dublin 8. Two witnesses were called by the prosecution, Garda Francis McMahon and Garda Colm McCluskey. The District Judge found the following facts.

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4. On the 21 st of April, 2014, Garda McMahon was operating a speed check on Wolf Tone Quay, Dublin 7, a public place. At about 12.50 am, he detected a vehicle bearing registration no. 01 KE 11842 being driven by the accused driving at a speed of 80 kph in a 50 kph zone. He stepped out onto the road and signalled the vehicle to stop.

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5. The vehicle came to a halt very late and pulled into the left hand side of Ellis Quay as directed by Garda McMahon. The driver was the accused. He gave his name and date of birth to Garda McMahon. He gave Garda McMahon his driving licence and address. Garda McMahon got a strong smell of alcohol from the accused's breath.

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6. Garda McMahon made a demand under s. 9 of the Road Traffic Act 2010 to the accused to provide a specimen of his breath to indicate the presence of alcohol. He outlined the penalties of failing to comply with the demand. The accused provided a breath specimen in the Drager Alcotest approved apparatus for the taking of such specimens. The result of the test was "fail". Garda McMahon formed the opinion that the accused had committed an offence contrary to s. 4 of the Road Traffic Act 2010. He arrested the accused under s. 4(a) of the 2010 Act. He cautioned the accused and informed him of the reason for his arrest in ordinary language.

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7. The accused was conveyed to Store Street Garda Station. There he was given his notice of rights which were read over to him. The accused was observed for twenty minutes nil by mouth by Garda McMahon. The accused had a good grasp of the English language but an interpreter was obtained nonetheless.

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8. Garda McCluskey was trained in the use of the Evidenzer Irl evidential breath testing apparatus. He made a demand of the accused under s. 12(1)(a) of the Road Traffic Act 2010 to provide a specimen of his breath. He informed the accused of the penal consequences of failure to provide a sample. The accused confirmed to Garda McCluskey that there was no medical reason for him not providing a specimen. The accused provided a specimen.

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9. Garda McCluskey complied with s. 13 of the Road Traffic Act 2010. The Evidenzer Irl produced a document which described a concentration of 54 micrograms per 100 millilitres of breath in the specimen produced by the accused. The document was signed by both the accused and Garda McCluskey as required. The completed document was tendered into court as a certificate under s. 13 of the Road Traffic Act 2010. A copy of the document is annexed to this judgment.

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10. Under cross examination, Garda McCluskey stated that prior to the provision of the breath specimens, he inputted his details and that of the accused into the Evidenzer apparatus in English. Garda McCluskey stated that the only document which was produced from the machine was in English. He stated that the Evidenzer apparatus is capable of producing the printout in Irish.

11

11. At the conclusion of the prosecution case, the accused's solicitor applied for a "direction" of no case to answer on the grounds that the document submitted to the court was not a duly completed statement within the meaning of s. 13 of the Road Traffic Act 2010 because it did not comply with the requirements of the Road Traffic Act 2010 (s.13) (Prescribed Form and Manner of Statements) Regulations 2011 ( S.I. 541/2011), which require that the relevant statement should be produced in both the English and Irish languages. Accordingly, the defence submitted that the document was not a duly completed statement and thus not admissible in evidence.

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12. The case was adjourned to allow for written submissions and on the 2 nd of October, 2014, the District Judge delivered a written judgment in which he acceded to the defence application and held that the document which purported to show the concentration of alcohol in the breath of the accused was not a "duly completed" certificate within the meaning of the relevant section above.

Question For Determination
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13. Arising from the foregoing, the District Judge referred the following sole question to this court for determination:

i "(i) On the facts so found, was I entitled to hold that the document purporting to show the concentration of alcohol in the breath of the accused is not a "duly completed" certificate within the meaning of s. 13 of the Road Traffic Act 2010 and S.I. 541/2011, namely the Road Traffic Act 2010 (s.13) (Prescribed Form and Manner of Statements) Regulation 2011?"

The Legislation
14

14. Chapter 2 of the Road Traffic Act 2010 deals with intoxicated driving offences. Section 4 of the 2010 Act provides for the maximum permissible concentration of alcohol in blood, urine and breath specimens respectively. Section 4 (4) which is relevant in this instance, provides:

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"(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-

a ( a) 22 microgrammes of alcohol per 100 millilitres of breath, or

b ( 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…

(8) A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section."

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15. Chapter 4 of the 2010 Act provides for the procedure in relation to providing relevant specimens at garda stations. Section 12 insofar as relevant here,...

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