DPP v Bourke

• Jurisdiction: Ireland
• Judge: Quirke J.
• Judgment Date: 21 October 2005
• Neutral Citation: [2005] IEHC 327
• Date: 21 October 2005
• Court: High Court
• Docket Number: [2005 No.

[2005] IEHC 327

THE HIGH COURT

[No. 530 S.S./2005]

DPP v BOURKE

IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED

PURSUANT TO SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857

AS AMENDED AND EXTENDED BY THE PROVISIONS OF THE

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

JOHN BOURKE

RESPONDENT

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(a)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S13(1)(a)

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1994 S21(1)

DPP v CORCORAN UNREP HIGH COURT MCCRACKEN 22.6.1999 1999/7/1576

DPP v COLLINS 1981 ILRM 447

Abstract:

Criminal law - Drunken driving - Intoxilyzer machine - Whether the learned district judge was correct in law in dismissing the charge against the respondent - Road Traffic Act, 1994 s. 17

This case was an appeal by way of case stated on the application of the appellant, who was dissatisfied with the determination of the learned district judge as being erroneous in point of law. Essentially, the learned district judge dismissed the charge of drunken driving against the respondent on the basis that there was sufficient rebuttal of the presumed prima facie evidence on the face of the statement supplied pursuant to section 17 of the 1994 Act. The section 17 statement provided that the two specimens of breath provided by the respondent had been provided at 2.14am. It was argued on behalf of the respondent that it was not possible for the Intoxilyser to analyse two specimens of breath and to purge the machine within a 60 second period. It was further submitted that if that was possible, then the printed statement should have recorded, on its face and shown in minutes and seconds, when each precise function was performed by the machine. During the hearing the State adduced additional evidence by way of testimony from Ms Leavy of the Medical Bureau of Road Safety to the effect that it was possible to obtain two breath specimens in under 60 seconds and that the machine was not programmed to report times in minutes and seconds.

Held by Quirke J. in allowing the appeal: That it was not open to the learned district judge to dismiss the charge on the ground that the face of the section 17 statement contained sufficient rebuttal of the presumed prima facie evidence. The only information contained on the face of the certificate was information comprising evidence consistent with and supportive of the appellant's case against the respondent. Furthermore, the case stated did not indicate that the evidence adduced by Ms. Leavy was in any respect inconsistent with the information contained upon the face of the certificate. Consequently, the learned district judge was not correct in law in dismissing the charge.

Reporter: L.O'S.

1 JUDGMENT of Quirke J. delivered the 21st day of October, 2005 .

2 This is an appeal by way of Case Stated by Judge Mary C. Devins pursuant to s. 2 of the Summary Jurisdiction Act 1857 (as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961) on the application of the appellant who was dissatisfied with the determination of the learned District judge as being erroneous in point of law.

FACTUAL BACKGROUND

3 1. The respondent appeared before the learned district judge at Castlebar District Court on 20th November, 2002, charged with the commission of an offence contrary to s. 49(4) and (6)(a) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act 1994.

4 2. The charge arose out of an incident on 4th August, 2005, when the respondent was arrested by Garda Martin McHugh who had formed an opinion that the respondent was committing or had committed an offence under s. 49(2), ( 3) or (4) of the Act of 1961.

5 3. Having complied with all relevant statutory requirements Garda McHugh, pursuant to the provisions of s. 13(1)(a) of the Road Traffic Act 1994 required the respondent to provide two specimens of his breath. The respondent complied with that request.

6 The Intoxilyzer which records the concentration of alcohol present in human breath printed two identical statements indicating that there was a concentration of 39 microgrammes of alcohol per 100 millilitres within the breath sampled.

7 4. The terms of s. 17 of the Road Traffic Act 1994 were then fully complied with by Garda McHugh. The respondent acknowledged receipt of the statements by placing his signature upon each and by returning one statement to Garda McHugh.

8 5. At the hearing before the learned district judge on 20th November, 2002, the evidence adduced on behalf of the appellant included and was reliant upon the printed statement produced pursuant to the provisions of s. 17 of the Act of 1994 and signed by the respondent. The statement provided inter alia that both breath specimens provided by the respondent pursuant to s. 17 of the Act of 1994 had been provided at 2.14 am on the 4th August 2005.

9 6. At the conclusion of the evidence adduced on behalf of the appellant the respondent's solicitor requested the learned district judge to dismiss the charge submitting that it was not possible for the Intoxilyzer to analyse two specimens of breath and to purge the machine within a 60 second period.

10 He further submitted that if that was possible, then the printed statement should have recorded, on its face and shown in minutes and in seconds, when each precise function was performed by the machine.

11 7. At the request of the appellant the learned district judge adjourned the proceedings to enable the appellant to adduce additional evidence. On 20th October, 2003, a Ms. Catherine Pauline Leavy from the Medical Bureau of Road Safety testified in the proceedings. She provided the court with details concerning the supply, approval, and testing of the Intoxilyzer.

12 8. In evidence she indicated that the Bureau's scientists had, at her request, carried out tests on 28th January, 2003, in controlled laboratory conditions. These tests had demonstrated that it was possible to obtain two breath specimens in under 60 seconds. She indicated that this allowed a minimum of 7 or 8 seconds for the provision of the first specimen, a further 30 seconds which she described as a "clearing period" and the further 7 or 8 seconds for the provisions of the second specimen.

13 She confirmed that the machine was not programmed to report times in minutes and seconds.

14 9. Having heard further submissions and considered the evidence the learned district judge decided that "...there was sufficient rebuttal of the presumed 'prima facie' evidence on the face of the statement supplied pursuant...