DPP v Avadenei

 
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[2016] IECA 136

THE COURT OF APPEAL

Edwards J.

Record No. 2015/526

Birmingham J.

Mahon J.

Edwards J.

IN THE MATTER OF SECTION 52 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS (at the suit of Garda Francis McMahon)
Appellant
V
MIHAI AVADENEI
Respondent

Statutory Interpretation – Drink Driving – s. 13 of the Road Traffic Act 2010 (Prescribed Form and Manner of Statements) Regulation 2011 – Deviations – Validity

Facts: The Director of Public Prosecutions appealed against a High court judgement that dealt with a case that had been referred from the District Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961. The case concerned the prosecution of the respondent for drink driving contrary to s. 4(40(a) and (5) of the Road Traffic Act 2010. The respondent contended in the District Court that the prosecution had failed to produce evidence in a duly completed statement within the meaning of s. 13 of the Road Traffic Act 2010 because the apparatus used to analyse the respondent's breath only generated a printout in English, when s. 13 of the Road Traffic Act 2010 (Prescribed Form and Manner of Statements) Regulations 2011 required that the relevant statement be produced in English and Irish.

The District Judge referred the case to the High Court for determination on whether he was entitled to hold that there was no 'duly completed' certificate within the meaning of s. 13 of the Road Traffic Act 2010 (Prescribed Form and Manner of Statements) Regulation 2011. The High Court answered the District Judge's question in the affirmative. The High Court judge concluded that the document relied upon by the prosecution against the respondent did not comply with the requirements of s. 13(2) and was therefore not admissible. The appellant contends that the deviation from the prescribed statutory form was not fatal and by virtue of s. 12 of the Interpretation Act 2005, a deviation that does not affect the substance of the form or is not misleading in content means it is therefore valid.

Held by Edwards J: The court allowed the appeal and concluded that the trial judge had erred in holding that s. 12 of the Interpretation Act 2005 Act had no application in the case. Edwards J concluded that if the District Judge had of applied s 12 of the 2005 Act to the case he would have been entitled to conclude that the statements produced by the intoxylizer apparatus were in the prescribed form notwithstanding the deviation in the case stated, and was duly completed in the prescribed manner by a member of An Garda Siochana. The court allowed the appeal and answered the question posed by the District Judge in the negative.

Judgment of Mr. Justice Edwards delivered on the 10th day of May, 2016
Introduction
1

This is an appeal by the Director of Public Prosecutions against a judgment of the High Court (Noonan J.) delivered on the 21st of September, 2015, and the orders of the High Court made on foot of that judgment, dealing with a consultative case stated referred to it by Judge Conal Gibbons of the District Court on the 2nd of October, 2014, pursuant to section 52 of the Courts (Supplemental Provisions) Act 1961.

2

The case, which had come before the Dublin Metropolitan District Court where Judge Gibbons was sitting, concerned the prosecution of the respondent for drink driving contrary to s. 4(4)(a) and (5) of the Road Traffic Act 2010 ('the Act of 2010'). This had resulted from the earlier arrest and detention of the respondent in circumstances where he, having failed a roadside breath test, had been required - at the Garda Síochána station to which he had been taken - to provide a sample of his breath for analysis by an Evidenzer Irl apparatus, and had duly done so. The Evidenzer Irl apparatus is designed to produce a printout which, once signed, is intended to comprise a duly completed statement for the purposes of s. 13 of the Road Traffic Act 2010, which statement is required to be produced in evidence as an essential proof in support of any prosecution for an offence under s. 4 (4) and (5) of the Road Traffic Act 2010.

3

In the course of the respondent's prosecution in the District Court, it was argued on his behalf that the prosecution had failed to produce in evidence a duly completed statement within the meaning of s. 13 of the Road Traffic Act 2010 because the Evidenzer Irl apparatus used to analyse the respondent's breath had only generated a printout in the English language whereas, it was contended, the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2011, S.I. 541/2011 ('the Regulations of 2011') required that the relevant statement should be produced in both the English and Irish languages.

4

The question referred by the District Judge for determination by the High Court asked whether, on the facts of the case as found by him, he had been ' entitled to hold that the document purporting to show the concentration of alcohol in the breath of the accused is not a "duly completed" certificate within the meaning of s. 13 of the Road Traffic Act 2010 and S.I. 541/2011, namely the Road Traffic Act 2010 (s.13) (Prescribed Form and Manner of Statements) Regulation 2011?'

5

The High Court answered the District Judge's question in the affirmative.

The Facts as found by the District Judge
6

On the 21st of April, 2014, a Garda McMahon was operating a speed check on Wolf Tone Quay, Dublin 7, a public place. At about 12:50 am, he detected a vehicle bearing registration no. 01 KE 11842 driving at a speed of 80 kph in a 50 kph zone. He stepped out onto the road and signalled the vehicle to stop.

7

The vehicle came to a halt very late and pulled into the left hand side of Ellis Quay as directed by Garda McMahon. The driver was the respondent. He gave his name and date of birth to Garda McMahon. He gave Garda McMahon his driving licence and address. Garda McMahon got a strong smell of alcohol from the respondent's breath.

8

Garda McMahon made a demand under s. 9 of the Road Traffic Act 2010 to the respondent to provide a specimen of his breath to indicate the presence of alcohol. He outlined the penalties of failing to comply with the demand. The respondent provided a breath specimen in the Drager Alcotest approved apparatus for the taking of such specimens. The result of the test was ' fail'. Garda McMahon formed the opinion that the respondent had committed an offence contrary to s. 4 of the Road Traffic Act 2010. He arrested the respondent under s. 4(a) of the Act of 2010. He cautioned the respondent and informed him of the reason for his arrest in ordinary language.

9

The respondent was conveyed to Store Street Garda Station. There he was given his notice of rights which were read over to him. The respondent was observed for twenty minutes 'nil by mouth' by Garda McMahon. The respondent had a good grasp of the English language but an interpreter was obtained nonetheless.

10

Garda McCluskey was trained in the use of the Evidenzer Irl evidential breath testing apparatus. He made a demand of the respondent under s. 12(1)(a) of the Road Traffic Act 2010 to provide a specimen of his breath. He informed the respondent of the penal consequences of failure to provide a sample. The respondent confirmed to Garda McCluskey that there was no medical reason for him not providing a specimen. The respondent provided a specimen.

11

Garda McCluskey complied with s. 13 of the Road Traffic Act 2010. The Evidenzer Irl produced a document which described a concentration of 54 micrograms per 100 millilitres of breath in the specimen produced by the respondent. The document was signed by both the respondent and Garda McCluskey as required.

12

The respondent was subsequently charged before the Dublin Metropolitan District Court on foot of National Charge Sheet Number 144692042 that he 'on the 21/04/2014 at Ellis Quay Dublin 7 a public place in the said District Court Area of Dublin Metropolitan District, did drive a mechanically propelled vehicle registration number 0 IKE11842 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 breath did exceed a concentration of 22 microgrammes of alcohol per 100 millilitres of breath, to wit 54 microgrammes, contrary to section 4(4)(a) and (5) of the Road Traffic Act 2010'.

13

At the respondent's trial before the Dublin Metropolitan District Court on the 2nd of July, 2014, the completed document that had been produced by the Evidenzer Irl apparatus was tendered to the court by the prosecution as a purported statement under s. 13 of the Road Traffic Act 2010. A copy of that document is annexed to this judgment.

14

Under cross examination, Garda McCluskey stated that prior to the provision of the breath specimens, he inputted his details and that of the respondent into the Evidenzer Irl apparatus in English. Garda McCluskey stated that the only document which was produced from the machine was in English. He stated that the Evidenzer apparatus was also capable of producing the printout in Irish.

15

At the conclusion of the prosecution case, the respondent's solicitor applied for a ' direction' of no case to answer on the grounds that the document submitted to the court was not a duly completed statement within the meaning of s. 13 of the Road Traffic Act 2010 because it did not comply with the requirements of the Regulations of 2011, which require that the relevant statement should be produced in both the English and Irish languages. Accordingly, the defence submitted that the document was not a duly completed statement and thus not admissible in evidence.

16

The case was adjourned to allow for written submissions and on the 2nd of October, 2014, the District Judge delivered a written judgment in which he acceded to the defence application and held that...

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