DPP v Avadenei

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'Donnell Donal J.,McKechnie J.,Dunne J.
• Judgment Date: 08 July 2016
• Neutral Citation: [2016] IESCDET 101
• Date: 08 July 2016

[2016] IESCDET 101

THE SUPREME COURT

DETERMINATION

O'Donnell Donal J.

McKechnie J.

Dunne J.

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857

IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA FRANCIS MCMAHON)

PROSECUTOR/APPLICANT

AND

MIHAI AVADENEI

ACCUSED/RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1 The facts and issues in this matter have been set out in the determination of the Court on the Application for Leave brought by the respondent to this application, (Mihai Avadenei) in [2016] IESCDET 100. Here the DPP seeks an extension of time to apply for leave to appeal and in the event that leave is granted on the application of the respondent (Mihai Avadenei) for leave to appeal, the DPP seeks leave to cross appeal.

Extension of Time

2 The DPP points out that a cross-appeal must be made by way of separate application for leave and notice of appeal. This must be no longer than 28 days of the perfection of the order of the Court of Appeal. In this case the Director's appeal is contingent upon an appeal made by the respondent. The respondent's notice of appeal was not filed until 28 days had almost elapsed, and accordingly the applicant was not in a position to put in a cross-appeal within the 28 day period. The Court accepts that this is a valid basis to extend time, and accordingly will extend time for the making of this application. This determination should be read together with the application for leave, the respondent's notice, the determination of this Court in the related matter, [2016] IESCDET 100, the decision of the High Court [2015] IEHC 580 (Noonan J) and the decision of the Court of Appeal (Edwards J; Birmingham and Mahon JJ concurring) [2016] IECA 136. It is accordingly not proposed to set out the facts in detail.

3 The application concerns the interpretation of a provision of the Road Traffic Act 2010 relating to the offence of driving a mechanically propelled vehicle in a public place with an excess of 22 micrograms of alcohol per 100 millilitres of breath in the driver's body. Evidence on such a charge is by production of a certificate generated by the Evidenzer (Ireland) breath test apparatus. The High...