DPP v Avadenei

• Jurisdiction: Ireland
• Judge: O'Donnell Donal J.,McKechnie J.,Dunne J.
• Judgment Date: 08 July 2016
• Neutral Citation: [2016] IESCDET 100
• Judgment citation (vLex): [2016] 7 JIC 0813
• Court: Supreme Court
• Date: 08 July 2016

[2016] IESCDET 100

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

AND

MIHAI AVADENEI

ACCUSED/APPLICANT

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 By order of the 10th of May 2016 [2016] IECA 136, the Court of Appeal (Edwards J, Birmingham and Mahon JJ concurring) set aside the decision of the High Court [20145] IE HC 580 (Noonan J) of the 21st of September 2015, in respect of a consultative case made by Judge Conal Gibbons of the District Court on the 2nd of October 2014.

2 As the judgment of both the High Court and Court of Appeal are generally available, and the Application for Leave to Appeal to this Court and the Respondent's Notice are also available publicly, it is not necessary to outline the facts of this matter in great detail. The applicant, Mihai Avadenei, was charged with driving a mechanically propelled vehicle on the 21st of April 2014, at Ellis Quay, Dublin 7, with a concentration of alcohol present in his body in excess of 22 micrograms of alcohol per 100millilitres of breath (to wit, 54 micrograms) contrary to s.4(4)(a) and (5) of the Road Traffic Act 2010. The evidence on the charge was in essence, a document in the English language signed by both the accused and the relevant guard certifying the result of the Evidenzer (Ireland) breath test apparatus and generated automatically by that machine. The point raised on behalf of the applicant, and in respect of which Judge Gibbons stated the case, was that it was alleged the document produced did not comply with the requirements of the Road Traffic Act 2010 (s.13) (Prescribed Form and Manner of Statements) Regulations 2011 ( SI 541 of 2011), which it was contended required a single document in both Irish and English.

3 The High Court held that the provisions of the Act must be strictly construed, and a failure to comply with the prescribed procedures deprived any relevant certificate of evidential value. The High Court also held that the Act as properly construed required that a member of the Gardaí supply two...