DPP (Horan) v O'Malley

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 01 May 2008
• Neutral Citation: [2008] IEHC 117
• Docket Number: No. 256 SS/2008
• Court: High Court
• Date: 01 May 2008

DPP (Horan) v O'Malley

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL

PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA RICHARD M. HORAN)

PROSECUTOR

AND

THOMAS O'MALLEY

DEFENDANT

[2008] IEHC 117

No. 256 SS/2008

THE HIGH COURT

Abstract:

Criminal law - Consultative Case stated - District Court - Drink driving - Intoxlyser - Fair procedures - Failure to seek out and preserve certain documents - Expert evidence - Incomplete case - Inordinate delay - Order for disclosure - Prejudice- Prosecutorial delay - McFarlane v. DPP

Facts: On a consultative case stated from the District Court, the question was posed in a drink driving prosecution whether the prosecutor had failed to seek out and preserve certain documents pertaining to the Intoxilyser machine and whether the delay on the part of the prosecutor had been inordinate so as to constitute an abuse of process.

Held by Gilligan J. that the Supreme Court in the decision of McFarlane v. DPP had extensively considered the question of prosecutorial delay and had emphasised four factors as critical- the length of the delay, the reasons for delay, the role of the applicant and prejudice. No order for disclosure could be made. An inordinate delay on its own would not warrant the dismissal of the charges. It was for the District Judge to apply the law as to prosecutorial delay.

Reporter: E.F.

DPP v MCGONNELL 2007 1 ILRM 321

DPP v SWEENEY: SWEENEY v RAPE CRISIS CENTRE & DPP 2001 4 IR 102 2002 1 ILRM 532 2001/8/2166

H (D) v GROARKE & DPP 2002 3 IR 522 2002/12/2955

MCFARLANE v DPP UNREP SUPREME 5.3.2008 2008 IESC 7

BARKER v WINGO 1972 407 US 514

Mr. Justice Gilligan

1 This is a consultative case Stated by Judge Mary Devins and for ease of reference I set out hereunder the details of the case stated.

2 (1) At a sitting of Ballinrobe District Court on the 4^th December, 2007, Thomas O'Malley (hereinafter "the accused") appeared before me to answer a summons, which alleged that, the accused:

"On the 13^th day of June 2004, at Frenchbrook, Kilmaine, County Mayo in the District Court area of Ballinrobe, District No 3, drove a mechanically propelled vehicle with registration number and letters 94 MO 871 in a public place 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 exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath contrary to Section 49(4) and (6)(a) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994 as amended by the Road Traffic Act, 2002."

3 A copy of the summons appears asappendix 1 to this case stated.

4 (2) The accused had previously been before me at Ballinrobe District Court on 21^st March, 2006, wherein I heard a preliminary application on behalf of the accused to dismiss the charge or stay the proceedings on the basis that the prosecutor had failed to seek out and preserve certain documents and materials concerning the Lion Intoxilyser machine, which the accused claimed would have assisted him in his defence of the charge. I note that a detailed request for disclosure had been sent to the Garda Superintendent on the 1^st March, 2006, and a reminder issued on the 16^th March, 2006, and the Superintendent furnished so much of the documentation as was in his possession or procurement. A copy of that request for disclosure appears as appendix 2 to this case stated, together with the response from the Superintendent to same.

5 (3) On 21^stmarch, 2006, I heard evidence on behalf of the accused from Dr. Mark Jordan, a consultant forensic engineer and I also heard evidence from Mr. Eoin O'Donoghue, a representative of the Medical Bureau of Road Safety. I heard that Dr. Jordan wanted relevant technical data concerning the design, functioning and operation of the machine. He wanted to explore the possibility that the machine might be unreliable.

6 (4) I had previously heard evidence from Dr. Jordan at Belmullet District Court on 9^th February, 2005, in a different case, D.P.P. v. Brendan Burke, wherein his evidence was not contradicted as no expert evidence had been called by the prosecutor. Dr. Jordan is a chartered engineer and he has extensive qualifications and experience in relation to machine design and his expertise in relation to the intoxilyser has not been challenged and I find him competent.

7 (5) I held that the materials made available to the accused were incomplete. That conclusion led me logically and inevitably to adjourn the proceedings to allow the defence draft an appropriately detailed application for disclosure. That was drafted and furnished to the prosecutor.

8 A copy of that full request for disclosure appears asappendix 3 to this case stated.

9 (6) I subsequently dismissed the prosecution against Mr. Burke on account of a failure to make discovery.

10 (7) On the said 21^st March, 2006 due to a failure of the prosecution to make full disclosure of the requested materials in the instant case, I was of the opinion that a question of law arose such that I intended to seek the guidance of the High Court as to whether in light of the failure to supply all the material sought I should accede to the accused's application and stay the prosecution or dismiss the charge. I sought the agreement of both parties to furnish to me a draft of the proposed case stated.

11 (8) The case was adjourned from time to time and I had directed that the matter would be finalised on 18^th July, 2006 when the matter was listed at Ballinrobe District Court. Whereas the accused's solicitor had a draft case stated prepared, I was not furnished with an agreed draft by the prosecution. A copy of the accused's initial draft case stated is attached at appendix 4 to...