DPP v Cagney,  IESC 13 (2013)
THE SUPREME COURT[Appeal No: 130/08]
In the Matter of section 16 of the Courts of Justice Act, 1947
In the Matter of a Case Stated in proceedings before Dublin Circuit Court
The Director of Public Prosecutions
(at the suit of Garda S Keoghan)Prosecutorand
Judgment of Mr. Justice Clarke delivered the 11th March, 2013.
1.1 Technical questions concerning the precise application of drunk driving legislation have been the subject of controversy for many years. This case, however, raises an unusual feature. Indeed on one view it might be argued that if the position taken by the Prosecutor (“the Director”) in this case is correct persons might be at risk of being convicted rather than acquitted on a technicality.
1.2 The defendant ("Ms Cagney") was prosecuted for failing to provide a breath sample. The case came before the Circuit Court (His Honour Judge O'Sullivan) on appeal which involved, of course, a full rehearing. His Honour Judge O'Sullivan was satisfied that Ms Cagney, having been lawfully required to provide two samples of her breath by means of an intoxilyser, was unable to do so due to a transient medical condition. Both sides agreed that Ms Cagney was not offered the alternative of giving a sample of blood or urine.
1.3 A legal debate followed as to whether, in those circumstances, Ms Cagney was entitled to defend successfully the prosecution brought against her. His Honour Judge O'Sullivan was of the view that she was but was asked by the Director to state a case to this Court which raises two connected net questions as to the proper interpretation of the relevant legislation and its application to a case such as arose in respect of Ms Cagney.
1.4 To understand the issues in more detail it is appropriate to turn next to the case stated.
The Case Stated
2.1 Having dealt with the procedural history of the case and the hearing before him, His Honour Judge O'Sullivan went on, at para. 3 of the case stated, to set out the facts which were proved, admitted, agreed or were found by him. Having recited the underlying evidence including that of Ms Cagney and her general practitioner doctor, the trial judge went on to make the following findings of fact as noted at para. 3(f) of the case stated:-
"(i) that a lawful requirement had been made of the accused to provide two samples of her breath pursuant to section 13(1)(a);
(ii) that the accused had failed to do so, in the sense that she had not provided samples of her breath capable f being measured or tested by the intoxilyser;
(iii) that the reason the accused was unable to do so was due to her medical condition at that time, which was a transient condition."
2.2 In addition some of the uncontroverted evidence noted in the case stated is, at least on one view, potentially relevant to the issues which this court has to determine. First it should be noted that the Garda charged with dealing with the application of the intoxilyser accepted that Ms. Cagney had made genuine attempts to provide a breath sample. It was also accepted that the Garda in question had asked Ms. Cagney whether or not she had any medical conditions which would prevent her from providing a specimen but that she had replied “none”. At the trial before His Honour Judge O’Sullivan Ms. Cagney did indicate that she had a cough and a chest infection. In addition, while her general practitioner found no clinical symptoms when he saw her the following evening, he did diagnose a post-viral condition and expressed the view that Ms. Cagney would not have been able to provide a breath sample.
2.3 Thereafter, the trial judge addressed the legal issues which arose and noted that counsel on behalf of Ms Cagney had sought to rely on the provisions of s.23 of the Road Traffic Act, 1994 ("the 1994 Act") which provides as follows:
“In a prosecution of a person for an offence under section 13 for refusing or failing to comply with the requirement to provide 2 specimens of his breath, it shall be an defence for the defendant to satisfy the court that there was a special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with the requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine”.
It should, at this stage, be noted that the defence provided for in s.23 involves, therefore, two parts. First, it is necessary that the person have a "special and substantial reason" for refusal. Second is the requirement concerning a blood or urine sample. The proper interpretation of that requirement became a significant issue before the trial judge, as appears hereafter, and also was a central issue on the hearing before this Court.
2.4 The trial judge also noted that both sides had sought to place reliance on the decision of the High Court in DPP v. Redmond Cabot (Unreported, High Court, O Caoimh J., 20th April, 2004). In addition the Director sought to rely on DPP v. Patricia Behan  JIC 0304 for the proposition that the offence in question, being an offence under s.13 of the 1994 Act of failing to provide samples of her breath, was a strict liability offence with a limited defence. It will be necessary to refer to those cases in due course.
2.5 As appears from para. 6 of the case stated the trial judge came to the view that the case law (and in particular Cabot) established the following:-
"(a) That where a defence under s.23 of the Act of 1994 is raised by an accused, it is necessary for a judge, firstly, to establish whether there was indeed a special and substantial reason for the refusal or failure to comply with the requirement to provide two specimens of breath;
(b) That in order to avail of a defence under s.23 of the 1994 Act (a different position from previous legislation) the accused also has to satisfy a court that he complied with a lawful requirement under s.13(1)(b) for a specimen of blood or urine, if such a requirement is made;
(c) That if a blood/urine requirement is made subsequent to a failure to provide two breath specimens, there is no obligation on the Gardai at that time to inform the accused that his failure to comply with the requirement under s.13(1)(b) would consequently also disqualify him from relying on a section 23 defence in relation to the failure to provide two specimens of his breath under section 13(1)(a);
(d) The final conclusion, which is essentially the answer Mr. Justice O Caoimh gave to the first question posed by Judge Hamill in the Case Stated, is surely unremarkable, because the Gardai are required by law to inform a person at the time the requirement made under Section 13(1)(b) that failure to comply with it is an offence. This may, of course, result in the Accused being guilty of two separate offences on the one occasion but Mr. Justice O Caoimh clearly believed that did not in any way...
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