DPP -v- McCrea,  IESC 60 (2010)
|Party Name:||DPP, McCrea|
THE SUPREME COURT
Murray C.J. 82/09
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA BRIAN LAVELLE
JUDGMENT of Mr. Justice Hardiman delivered the 9th day of December, 2010.
This is an appeal by the prosecutor, the Director of Public Prosecutions, from the judgment and order of the High Court (Edwards J.) delivered on the 28th January, 2009, on a Case Stated by way of appeal from the judgment of the District Court (District Judge Watkin) whereby she dismissed the charge brought against the defendant, Mr. McCrea.
The charge against Mr. McCrea which was dismissed on the 23rd January, 2008, was as follows:
“On the 09/06/2007 at Blanchardstown Garda Station in the said District, Court area of Dublin Metropolitan District, being a person arrested under s.49(8) of the Road Traffic Act 1961, having been required by Garda Gillian Synnott, a member of An Garda Síochána, at Blanchardstown Garda Station, pursuant to s.13(1)(A) of the Road Traffic Act, 1994 to provide two specimens of your breath, did REFUSE to comply forthwith with the said requirement.
Contrary to s.13(2) of the Road Traffic Act, 1994 as amended by s.23 of the Road Traffic Act, 2002.”
At the trial at the District Court both parties were professionally represented.
The nub of the case.
As appears from the charge set out above, the substance of the charge against the defendant was that he refused forthwith to provide breath specimens in the garda station. These specimens, which are inputted into a special analysis machine, are known as evidential breath specimens and may be accepted by a court as evidence of driving with excess alcohol. It was essential to the making of a valid demand to produce these specimens that the defendant, the person on whom the demand was made, should, at the time the demand was made, have been a person who had been arrested pursuant to the relevant power and brought to a garda station. There are other requirements as well but, except as set out below, they are not relevant here.
In the case as it developed before District Judge Watkin, there was evidence of an arrest and evidence that the defendant was brought, in custody, to the garda station. This happened at 2.18am on the 9th June, 2007. According to the Case Stated by the learned District Judge what happened next was as follows:
“At 2.21am the accused was given his Notice of Rights and Form C72 was read over and explained to him by Garda William Murray, attached to Blanchardstown Garda Station. The accused refused to sign for his Notice of Rights. Garda Lavelle testified that the accused had not requested to speak to a solicitor at this stage despite the fact that it was put to the garda that the evidence of the accused would be that he had made such a request at that stage.”
It appears that there was then some delay because there was no garda in the station trained to operate the intoxilyser machine. Eventually a Garda Synnott, who had been so trained arrived and was introduced to the accused at 2.50am. According to the Case Stated:
“She noted the temperature and humidity levels in the intoxilyser room were within required perimeters. Garda Synnott entered her details into the intoxilyser machine and made a requirement of the accused under s.13(1)(A) of the Road Traffic Act, 1994 at 2.54am. Garda Synnott explained to the accused the penalties for refusing to give a sample of his breath as required under s.13(1)(A). Garda Synnott stated that the accused replied that he wanted to speak to a solicitor. Garda Synnott stated that she informed the accused that he could speak to a solicitor as soon as he had complied with her requirement. Garda Synnott testified that she reminded the accused that he was obliged by law to provide a sample of his breath and that he would be able to talk to his solicitor afterwards. Garda Synnott testified that she explained to the accused in ordinary language that he was required to provide a breath sample under the law and that his solicitor would tell him the same thing…
Under cross-examination and in response to questions from me, Garda Synnott explained that the reason she did not accede to the request of the accused for access to a solicitor was that she believed she could only make one request pursuant to s.13(1)(A) of the Road Traffic Act, 1994, and that if she...
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