DPP (Garda Myler) v Mullins

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 12 November 2015
• Neutral Citation: [2015] IEHC 695
• Court: High Court
• Date: 12 November 2015

[2015] IEHC 695

THE HIGH COURT

[Record No.1940 SS/2014]

DPP (Garda Myler) v Mullins

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 ANN MARIE MYLER)

PROSECUTOR

AND

BRENDA MULLINS

DEFENDANT

Crime & Sentencing – Practice & Procedures – S. 52 of the Courts (Supplemental Provisions) Act 1961 – The Road Traffic Act, 2010 – S. 43 of the Medical Practitioners Act, 2007

Facts: In the proceedings, the District Judge sought answers on two questions of law: first, whether the combined effect of two errors in the completion of the doctor's certificate issued under s. 15 (1) of the Road Traffic Act, 2010 was to render it incomplete; and second, whether the effect of failure of the doctor to enter his registration number on the s. 15 certificate would render it incomplete, and in case the answers of both the questions were in negative, whether such a certificate could not be deemed to be duly completed.

Ms. Justice Iseult O' Malley held that the combined effect of the two errors in the completion of the doctor's certificate issued under s. 15 (1) of the Road Traffic Act, 2010 was such that the certificate could not be deemed to be complete. The Court, however, held that the failure by a registered medical practitioner to include his registration number on the form did not appear to breach his obligations under s. 43 of the Medical Practitioners Act, 2007 and thus, the document could not be deemed to be incomplete. The Court observed that the purpose of s. 15 was to ensure compliance with statutory requirements so as to make the form/certificate admissible in evidence. The Court opined that although the form declared that the doctor had divided the specimen into two parts, put it into containers and labelled it, the failure to mention as to which of the two samples, namely blood or urine, was taken by him was a fatal error and rendered the form incomplete. The Court cited with approval the dicta of McMahon J. in DPP v Kennedy [2009] IEHC 361 that the failure to complete a form accurately would not be fatal to the prosecution if no prejudice was caused to the party being prosecuted, such as a minor technical error, but where the regulations provided that the statements made in the form were to be taken as proof of the facts, then the failure to complete the form would be serious as it would mean the loss of evidentiary presumption.

1 JUDGMENT of Ms. Justice Iseult O'Malley delivered the 12th day of November 2015

2 1. This is a consultative case stated by District Judge Haughton pursuant to s. 52(1) of the Courts (Supplemental Provision) Act 1961. The case before him concerned a charge of driving with excessive blood alcohol level, contrary to s. 4(2)(a) and (5) of the Road Traffic Act, 2010 ("the Act"). The issues arise from the manner in which the certificate required under s. 15 of the Act was completed by the medical practitioner.

3 2. The case stated is here set out in full.

4 1. On the 15 ^th April, 2014, the defendant appeared before me sitting in the District Court Area of Wexford, District No. 23 charged as follows:-

"That you, on the 30 ^th March, 2013, at Ballinteskin, New Ross, Wexford, a public place in the said District did drive a mechanically propelled vehicle registration no. 06-WX-3212 while there was present in your body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol in your blood did exceed a concentration of 50 milligrammes of alcohol per 100 millilitres of blood, to wit 101 milligrammes. Contrary to Section 4 (2) (a) and (5) of the Road Traffic Act, 2010."

5 2. The case for the prosecution was presented by Inspector Derek Hughes. Mr. John G. Flynn, solicitor appeared for the Defendant.

6 3. The Prosecutrix (Garda Myler) gave the following evidence:- She stated that on the 30 ^th March, 2013, she was attached to Duncannon Garda Station. She was on duty with Garda Peter Buttle. At approximately 7.20pm at Dunmaine, Campile, Co. Wexford she observed vehicle registration no. 06-WX-3212 swerving over and back on the road as it was driven in front of the Garda patrol car. 06-WX-3212 was swaying over and back and into the path of oncoming traffic. The blue lights were switched on and the siren activated. 06-WX-3212 eventually stopped at Ballinteskin. Garda Myler approached the driver. Garda Myler observed that the driver smelled of alcohol and that her speech was slurred. Garda Myler obtained the name (Brenda Mullins) of the driver, together with her date of birth. Garda Myler formed the opinion that the Defendant "was under the influence of intoxicant as to be incapable of having proper control of a mechanically propelled vehicle" in a public place. Garda Myler gave evidence of administering the legal caution. At 7.30pm Garda Myler arrested the Defendant at Ballinteskin, New Ross, Co. Wexford, a public place. I am satisfied that Garda Myler gave the necessary evidence regarding the statutory provisions under which she arrested the Defendant and that she, Garda Myler, advised the Defendant in ordinary language, that she, the Defendant, had been arrested on suspicion of drunk driving.

7 Garda Myler took the Defendant to New Ross Garda Station, arriving there at 7.45p.m. The member in charge at New Ross Garda Station was Garda Ciaran Folan. Garda Myler gave evidence to the effect that Garda Folan complied with the Treatment of Person in Custody Regulations. He, Garda Folan, inter alia, handed the Defendant the Form C72S (Notice of Rights) and completed the Custody Record.

8 At 8.21p.m. Dr. Beirne, a Designated Doctor arrived at the Garda Station. Garda Myler introduced the Defendant to Dr. Beirne.

9 In the examination room Garda Myler made the statutory reqiurement under Section 12 of the Road Traffic Act, 2010. I am satisfied that Garda Myler stated that she, Garda Myler, pursuant to Section 12 required the Defendant to provide for the Designated Doctor a specimen of her blood or, at her option, a specimen of her urine and that she indicated to the Defendant the consequences of failure or refusal to comply with the requirement. Garda Myler said that the Defendant opted to provide a blood specimen and that at 8.30p.m. Dr. Beirne obtained a blood specimen, using the kit provided. He divided the sample into 2 glass phials which he sealed with white labels which were "initialled" by Dr. Beirne. The Defendant was provided (by Garda Myler) with an option to retain either of the containers but, she, the Defendant, declined to choose either.

10 The samples were consigned to the Medical Bureau of Road Safely. In due course Garda Myler received a Certificate of Analysis with a reading of 101 milligrammes of alcohol per 100 millilitres of blood. The said certificate issued pursuant to Section 17(3) of the Road Traffic Act 2010, was produced to me and a copy is attached to this case stated. The said Section 17 (Medical Bureau) Certificate tendered in the case indicated that the nature of the specimen received by the Bureau was: "not staled - blood received". Garda Myler also handed in the Doctor's Certificate issued pursuant to Section 15(1) of the Road Traffic Act 2010, a copy of which is also attached hereto.

11 4. Mr. Flynn asked Garda Myler, if she, Garda Myler, was satisfied with the Section 15 Doctor's Certificate. Garda Myler indicated that she was satisfied that the Doctor's Certificate had been duly and properly completed.

12 5. No further evidence was called by the Prosecution.

13 6. On the closing of the Prosecution case Mr. Flynn made a number of applications seeking a direction which I refused save for the following:-

14 (a) It was pointed out by Mr. Flynn that paragraph no.2 of the Section 15 Doctor's Certificate, which requires the nature of the specimen, (either "blood" or "urine") to be completed had been left blank. Furthermore, Mr. Flynn submitted that this lacuna had not been rectified by virtue of the failure of the person completing the Certificate to delete either paragraph (a) or paragraph (b) at a later point in the Certificate. The proper completion of a Section 15 Certificate requires the Designated Doctor or Designated Nurse completing the document to delete either paragraph (a) or paragraph (b) to thereby indicate whether the specimen obtained from the subject was one of blood or urine. Mr. Flynn argued that failure of the person completing the Certificate to attend to completion of paragraph no.2 and his failure to delete the subsequent reference to either blood or urine represented a fundamental and fatal defect in the document such that it could not be deemed to be a "duly completed" certificate and accordingly should not be admitted in evidence against the Defendant.

15 Mr. Flynn advanced his argument in this regard by quoting, at some length, from D.P.P. v. Lloyd Freeman (2009) IEHC 179 (2008 1438SS), judgment of MacMenamin J. dated the 21 ^st April 2009. Mr. Flynn argued that the Freeman case represents a coherent and up-to-date analysis of the law in relation to what form of document constitutes a "duly completed" certificate and what falls short of the standard required. Mr. Flynn conceded that if the only error in/omission from the Section 15 document in this case had been the failure to insert the word either "blood" or "urine" in paragraph no.2 thereof his argument would fail on the basis of the ratio decidendi in DPP v Somers [1999] 1 I.R. 115. However, the failure to subsequently delete either blood or urine in either paragraph (a) or paragraph (b) later in the form not only compounded the first omission but took the argument, when seen, in the round, to the point where the document could not be accepted as being "duly completed"....