DPP v Bridget Moorehouse

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr Justice McCracken,Mr. Justice Kearns,Murray C.J.
• Judgment Date: 28 July 2005
• Neutral Citation: [2005] IESC 52
• Docket Number: [S.C. No. 213 of 2004]
• Date: 28 July 2005

[2005] IESC 52

THE SUPREME COURT

Murray C.J.

McCracken J.

Kearns J.

213/04

DPP v MOOREHOUSE

In the matter of A CASE STATED

PURSUANT TO S. 16 OF THE COURTS OF JUSTICE ACT, 1947

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

BRIDGET MOOREHOUSE

DEFENDANT

COURTS OF JUSTICE ACT 1947 S16

COURTS OF JUSTICE ACT 1947 S13(1)(a)

COURTS OF JUSTICE ACT 1947 S13(2)

ROAD TRAFFIC ACT 1974

ROAD TRAFFIC ACT 1994 S23

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1994 S13(3)

ROAD TRAFFIC ACT 1994 S13(4)

ROAD TRAFFIC ACT 1994 S13(5)

ROAD TRAFFIC ACT 1994 S12

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

EAST DONEGAL CO-OP v AG 1970 IR 317

ROAD TRAFFIC ACT 1994 S1

ROAD TRAFFIC ACT 1994 S14

ROAD TRAFFIC ACT 1994 S12(1)

ROAD TRAFFIC ACT 1994 S12(2)

ROAD TRAFFIC ACT 1994 S14(4)

ROAD TRAFFIC ACT 1994 S14(5)

DPP v DOYLE 1996 3 IR 579 1997 1 ILRM 379

ROAD TRAFFIC ACT 1978 S13(3)

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46

MAXWELL INTERPRETATION OF STATUTES 12ED 239-40

DPP v CORCORAN 1995 2 IR 259 1996 1 ILRM 181

ROAD TRAFFIC (AMDT) ACT 1978 S13(1)(b)

DPP v CORMACK 1999 1 ILRM 398

DPP v STEWART 2001 3 IR 103

PIERSE ROAD TRAFFIC LAW VOL 1 3ED 2004 PARA 6.7.5

1 JUDGMENT delivered the 28th day of July 2005, by Murray C.J.

2 This is a case stated by a Judge of the Circuit Court pursuant to s. 16 of the Courts of Justice Act, 1947in which two questions are asked of this Court concerning the interpretation of s. 13(1)(a) and 13(2) of the Road Traffic Act, 1974.

3 The complainant had been erected pursuant to s. 49 of the Road Traffic Act, 1961and, having been brought to a Garda Station and required to provide two specimens of her breath pursuant to s. 13(1)(a) was subsequently charged and convicted in the District Court for an offence pursuant to s. 23 of the Act of 1994 for failing to comply with the requirement under the aforesaid subsection. She appealed this conviction to the Circuit Court which has given rise to this case stated.

The Case Stated

4 The charge before the Circuit Court is that the defendant did:-

5 ldquo;on the 28th of December, 2001, at Dun Laoghaire Garda Station in said district being a person arrested under s. 49(8) of the Road Traffic Act, 1961, having been required by Francis Byrne, a member of the Garda SíochÁna at Dun Laoghaire Garda Station pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, to provide two specimens of your breath, did fail to comply forthwith with the said requirement in the manner indicated by the said member of the Garda SíochÁna, contrary to s. 13(2) of the Road Traffic Act, 1994."

6 According to the case stated it was established in evidence that the defendant had been arrested for an offence pursuant to s. 49 of the Road Traffic Act, 1961at 12:25 a.m. on 28th December, 2001 by Garda Brendan McGrath after he and his colleague in the garda patrol car, Garda Lacey, had observed a motor car being driven erratically by the defendant. The defendant was brought to Dun Laoghaire Garda Station where the usual procedures were followed, and about which there is no controversy. The defendant was taken to a waiting room by Garda McGrath and another member, Garda Byrne. After a period the defendant or accused was taken to the intoximeter room by Garda McGrath and Garda Byrne.

7 According to the case stated the facts established in evidence were as follows:

8 ldquo;Garda Francis Byrne stated that he was a member of An Garda SíochÁna stationed at Dun Laoghaire Garda Station. On the 28th December, 2001 at 10:00 p.m., he took up duty and at 12:40 a.m. on the 28th December, 2001, Garda Brendan McGrath brought the defendant, Bridget Moorehouse, to Dun Laoghaire Garda Station having arrested her as previously described. At 12:48 a.m., the defendant was taken to the interview room by Garda Brendan McGrath and Garda Byrne. At 12:50 a.m., Garda Byrne stated that he formed the opinion that Bridget Moorehouse had consumed intoxicating liquor.

9 At 1:12 a.m. he took Bridget Moorehouse to the doctors" room with Garda McGrath. He introduced Bridget Moorehouse to the intoximeter, EC/IR. He noted in his notebook the temperature and humidity of the room. Having observed Bridget Moorehouse for 20 minutes, he was satisfied that she had nil by mouth. He then made a requirement under s. 13(1)(a) of the Road Traffic Act, 1994as follows:-

10 ldquo;I am of the opinion that you have consumed an intoxicant. Therefore pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, I am now requiring you to provide two specimens of your breath by exhaling into this apparatus designed for determining the concentration of alcohol in your breath. Failure or refusal to comply with my requirement in the manner outlined by me is a specific offence under s. 13(2) of the Road Traffic Act, 1994. Penalty on summary conviction shall render you liable to a fine not exceeding £1000, or to imprisonment to a term not exceeding 6 months or to both."

11 He then asked Bridget Moorehouse if she understood the requirement which he explained in ordinary language, and she said that she did. He then began the breath test by entering Bridget Moorehouse's details into the intoximeter, EC/IR. He opened a sealed bag in front of Bridget Moorehouse which contained a new mouthpiece, and he placed it on the breath tube. Prior to Bridget Moorehouse giving her first breath sample, he explained to her to inhale deeply, to make a seal with her lips over the mouthpiece, and to blow at a steady pace down the breath tube. Bridget Moorehouse was unable to provide a complete breath specimen on this occasion. She was unable to seal her lips around the mouthpiece, and the breath she exhaled was not going into the breath tube.

12 He stated that he asked Bridget Moorehouse did she understand the instructions he gave to her and she said she did. The intoximeter, EC/IR, then printed two statements on which it stated, specimen 1 was incomplete, indicating that Bridget Moorehouse had failed to provide a complete breath specimen.

13 The same instruction was also given to her prior to her giving a breath specimen on the second test. Bridget Moorehouse was again unable to provide a breath specimen on this occasion. She was again unable to seal her lips around the mouthpiece, thus when she exhaled air, it was not going into the breath tube. She did not exhale sufficient air in order to provide a complete breath specimen.

14 The intoximeter EC/IR then printed out two identical statements stating on them that specimen 1 was incomplete. She was given a third opportunity to provide a breath specimen.

15 A third test was started by entering her details into the intoximeter EC/IR. Garda Byrne explained to her to inhale deeply, to make a seal with her lips over the mouthpiece and to blow at a steady pace down the breath tube. She was again unable to seal her lips around the mouthpiece.

16 Garda Murphy explained to her the necessity of sealing her lips around the mouthpiece, and also of inhaling deeply. She again failed to provide two complete breath specimens in the manner Garda Byrne outlined to her. The intoximeter EC/IR then printed two identical statements on which it was stated that specimen 1 was incomplete.

17 At 2:20 a.m., she was released from custody having been charged by Sergeant James Murphy with having failed to provide two complete breath specimens in the manner outlined to her by Garda Byrne.

18 On cross-examination, Garda Byrne agreed that the defendant did provide at least two specimens of her breath by exhaling into the apparatus, but that these specimens were insufficient to allow the apparatus to determine the quantity of alcohol, if any, in the specimen.

19 Garda Murphy also stated that the formula used by him in making the requirement of the defendant to provide two samples of her breath was in accordance with the instructions given to him by his Authorities as part of the instructions for the operation of the intoximeter EC/IR."

20 In the context of the foregoing evidence the Circuit Court Judge in the case stated stated 11th May, 2004 posed the following two questions of law:-

21 (1) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two specimens of his breath pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, and where the member of An Garda SíochÁna indicates the manner in which the arrested person is to comply with the requirement, does s. 13 (2) of the Road Traffic Act, 1947, make it an offence to refuse or fail to comply with the requirement in the manner outlined by the member of An Garda SíochÁna making the requirement? If the answer to this question is ldquo;no", then

22 (2) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two specimens of his breath pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, and does so by exhaling into the apparatus designed for determining the concentration of alcohol in his breath, is that sufficient compliance with the ldquo;requirement" under the section so as to provide the arrested person with a defence to a charge of refusing or failing to comply forthwith with the requirement under s. 13(1)(a) of the Road Traffic Act, 1994?

Section 13(1), (2) and (3) of the Act of 1994

23 Section 13 of the Act of 1994 provides as follows:

24 ldquo;(1) Where a person is arrested under section 49( 8) or 50(10) of the Principal Act or s. 12(3), or where a person is arrested under s. 53(6), 106(3A) or 112(6) of the Principal Act and a member of the Garda SíochÁna is of opinion that...