DPP v Balogun
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 16 October 2019 |
| Neutral Citation | [2019] IEHC 670 |
| Court | High Court |
| Docket Number | [Record No. 2018 478 SS] |
| Date | 16 October 2019 |
[2019] IEHC 670
THE HIGH COURT
Murphy
[Record No. 2018 478 SS]
IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
CONSULTATIVE CASE STATED
Consultative case stated – Prosecution – Drink driving – District Court Judge seeking the opinion of the High Court on an issue of law – Was the prosecution required to prove that the defendant had previously received a fixed penalty notice within a three year period?
Facts: A District Court Judge, pursuant to the provisions of s. 52(1) of the Courts (Supplemental Provisions) Act 1961, brought a consultative case stated, in which she sought the opinion of the High Court on an issue of law arising in a prosecution for drink driving under the Road Traffic Act 2010. The judge referred the following question to the High Court for determination: “Was the Prosecution required to prove that the Defendant [Mr Balogun] had previously received a fixed penalty notice within a three year period?”
Held by the Court that the accused was on the facts, prima facie entitled to benefit from the more lenient regime provided for by s. 29 of the Road Traffic Act 2010. The Court held that if he was to be deprived of that benefit, by reason of other facts, then those facts must be proved. The prosecution alleged that he was ineligible because he received and paid a fixed penalty notice within three years of this alleged offence and so by virtue of the provisions of s. 29(5) he cannot avail of the more lenient regime. The Court held that it was for the prosecution to prove these matters by admissible evidence.
The Court answered the question raised by the District Court Judge: Yes.
The answer to the consultative case stated by the District Court is yes.
This is a consultative case stated brought by District Court Judge, Ann Ryan, pursuant to the provisions of s. 52(1) of the Courts (Supplemental Provisions) Act 1961, in which she seeks the opinion of the High Court on an issue of law arising in a prosecution for drink driving under the Road Traffic Act 2010. The case stated recites as follows:
“This is a case stated by me, Ann Ryan, a Judge of the District Court, pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act 1961 for the opinion of the High Court.
The Defendant appeared before the Dublin Metropolitan District Court on foot of a summons bearing case number 2016/12379 … at the suit of the Prosecutor to answer the complaint that he committed an offence contrary to section 4(3) of the Road Traffic Act 2010 as follows:
‘On the 08/12/2015 at Holywell Link Road Swords Dublin a public place in the said District Court Area of Dublin Metropolitan District, drive a mechanically propelled vehicle registration number 06WH8135 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 urine did exceed a concentration of 67 milligrammes of alcohol per 100 millilitres of urine, to wit 72 milligrammes of alcohol per 100 millilitres of urine
Contrary to section 4(3)(a) & (5) of the Road Traffic Act 2010.’
The case came on for hearing before me on June 8th 2017 in Court number 8, Criminal Courts of Justice, Parkgate Street, Dublin 8. Ronan O’Brien, solicitor, of the Office of the Chief Prosecution Solicitor appeared for the prosecutor. Rory Staines BL instructed by Michael Staines, solicitor appeared for the defendant. The Prosecutor called one witness, Garda James Newman. The facts as found by me are as follows:
(a) On December 8th 2015 at 8:00pm on Holywell Link Road Swords in Dublin, a public place, Garda Newman was taking part in a mandatory alcohol breath testing checkpoint. This was the subject of a valid authorisation. At 8:29pm on that date a Honda Fit vehicle bearing registration 06WH8135 came into the lane where the testing was being carried out. The vehicle was being driven by the Defendant.
(b) The Defendant produced a full Irish driving licence to Garda Newman. Garda Newman explained to him under section 10 of the Road Traffic Act 2010, gardaí were conducting a mandatory alcohol breath testing checkpoint and that he was now required to provide a sample of his breath by exhaling into the handheld machine designed for showing if there was alcohol in the breath. Garda Newman explained that it was an offence to fail to do so and outlined the penalties. The Defendant provided a sample and the result of the breath test was ‘fail’.
(c) Garda Newman formed an opinion that the Defendant had consumed an intoxicant to such an extent to make him incapable of having proper control of a mechanically propelled vehicle in a public place. He arrested the Defendant at 8.29pm under section 4(8) of the Road Traffic Act 2010 and cautioned him that he was not obliged to say anything unless he wished to do so but anything he would say would be taken down in writing and may be used in evidence against him.
(d) The Defendant was conveyed to Ballymun Garda Station, arriving at 8.52pm. On arrival in the station gardaí were informed the cells were closed and no prisoners were being taken at Ballymun Garda Station. The Defendant was then brought to Coolock Garda Station arriving at 9:01pm. A custody record was completed by Garda Paul Sweeney and a notice of rights was given to the Defendant. A Dr Ghaffar, a designated doctor was already present in the station.
(e) In the interview room of Coolock Garda Station at 9:22pm, Garda Newman introduced the Defendant to Dr Ghaffar. Garda Newman then made a requirement of the Defendant under section 12(1)(b) of the Road Traffic Act 2010 to provide to Dr Ghaffar a sample of his blood, or at his option, a sample of his urine. The Defendant opted to give a sample of urine. Garda Newman outlined to the Defendant that failure or refusal to give a sample was an offence and outlined the penalties for that offence.
(f) At 9:24pm the Defendant gave a sample of urine. Dr Ghaffar divided the sample in two and sealed the containers. The Defendant was informed that he was entitled to take one of the parts of the sample. He opted to take it. The other sample was placed in the box. Dr Ghaffar completed the section 15 form. The Defendant was taken back to the custody area of the Garda Station and released from custody at 9:30pm.
(g) The sample was conveyed to the Medical Bureau of Road Safety. Later a certificate was received from the Medical Bureau of Road Safety pursuant to section 17 of the Road Traffic Act 2010 in relation to the sample which indicated that the Defendant had a level of alcohol in his system which was 72 milligrammes of alcohol per 100 millilitres of urine.
(h) With a reading of that level, the Defendant would normally be entitled to a fixed penalty notice, however a fixed penalty notice was previously issued to him on May 2nd 2014 in relation to similar offence which occurred on March 8th 2014. It was paid and the Defendant received three penalty points as a result. Where a fixed penalty notice has previously issued within a three year period a defendant is not entitled to another one.
(i) Gardaí are instructed to email the Garda National Traffic Bureau for a Driver Eligibility Check. Four pieces of information are set out in the email: (i) the driver number, which is on the driving licence; (ii) the date of the offence; (iii) the garda making the request; and (iv) the PULSE ID number.
(j) Garda Newman received back from the National Traffic Bureau the notice that the Defendant was not entitled to a fixed charge penalty notice as one was previously issued. He therefore gave evidence that the Defendant received a fixed penalty notice within the previous three years based on this email and the PULSE record of the incident the subject of the fixed penalty notice. Objection was raised to the admissibility of this evidence at the time it was given.
At the close of the prosecution case Mr Staines made an application or a direction of no case to answer on a number of grounds. Principally objection was taken to the admissibility of the evidence adduced in relation to the Defendant previously having been the subject of a fixed penalty notice in May 2014. This objection had been indicated at the time the evidence was elicited from Garda Newman.
Mr O’Brien replied seriatim to the issues raised. In relation to the issue of the fixed penalty notice, He argued that evidence that a fixed penalty notice was previously sent did not offend the rule against hearsay. He also referred to David Staunton, Drunken Driving, at paragraphs 2-101 and 2-102.
I ruled in favour of the Prosecutor in relation to the other issues raised in the application for a direction. In relation to the issue of the fixed penalty notice, I adjourned the hearing on the application of the Prosecutor to allow the issue to be considered.
Written submissions were exchanged by both sides in relation to the issue. The Defendant raised the issue of failure to disclose the email and PULSE printout in the written submissions.
On June 8th 2017 I ruled in favour of the Prosecutor. I ruled that there was no prejudice to the Defendant in not receiving disclosure of the email or PULSE record before the trial, particularly in circumstances where the Defendant himself knew that he had previously received a fixed penalty notice. In relation to the issue of whether it required to be proved I held that the onus fell on the defendant to prove the issue. I had particular regard to the case of McCarthy v Murphy [1981] I.L.R.M. 213.
Mr Staines then indicated that the Defendant was not going into evidence. He further indicated that an issue previously raised by the Defendant in relation to the section 17 certificate was no longer...
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