DPP v Cagney

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 11 March 2013
• Neutral Citation: [2013] IESC 13
• Docket Number: [S.C. No. 130 of 2008]
• Court: Supreme Court
• Date: 11 March 2013

[2013] IESC 13

THE SUPREME COURT

Denham C.J.

Murray J.

Clarke J.

[Appeal No: 130/08]

DPP (Garda Keoghan) v Cagney

In the Matter of section 16 of the Courts of Justice Act, 1947 and

In the Matter of a Case Stated in proceedings before Dublin Circuit Court

Between/

The Director of Public Prosecutions (at the suit of Garda S Keoghan)

Prosecutor

and

Maresa Cagney

Defendant

COURTS OF JUSTICE ACT 1947 S16

ROAD TRAFFIC ACT 1994 S23

DPP v CABOT UNREP O CAOIMH 20.4.2004 2004/14/3248

DPP v BEHAN UNREP O CAOIMH 3.3.2003 2003/13/2930

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S23(1)

ROAD TRAFFIC ACT 1994 S13(1)

DPP v FINNEGAN 2009 1 IR 48

BRENNAN v DPP 1996 1 ILRM 267

DPP v MANGAN 2001 2 IR 373

CRIMINAL LAW

Road traffic offences

Consultative case stated - Drink driving - Statutory interpretation - Failure to provide breath samples - Failure due to transient medical condition - Whether special and substantial reason for failure - Defendant not complying or offering to comply with requirement relating to provision of blood or urine sample - Whether obligation on gardaí to alert defendant to need to offer blood or urine sample - Whether defendant entitled to acquittal in absence of garda warning - Brennan v Director of Public Prosecutions [1996] 1 ILRM 267; Director of Public Prosecutions v Behan (Unrep, Ó Caoimh J, 3/3/2003); Director of Public Prosecutions v Cabot [2004] IEHC 153, (Unrep, Ó Caoimh J, 20/4/2004); Director of Public Prosecutions v Finnegan [2008] IEHC 347, [2009] 1 IR 48; Director of Public Prosecutions v McGarrigle (1987) [1996] 1 ILRM 271 and Director of Public Prosecutions v Mangan [2001] 2 IR 373 considered - Road Traffic Act 1994 (No 7), ss 13 and 23 - Answer given inter alia that judge correct to find special and substantial reason for failure (130/2008 - SC - 11/3/2013) [2013] IESC 13

Director of Public Prosecutions (Keoghan) v Cagney

Facts: These proceedings arose by way of a case stated from the Circuit Court following an appeal of conviction from the District Court. The defendant was prosecuted for failing to provide a breath sample to Gardai. It was accepted that this was due to a temporary medical condition which prevented her from doing so despite a genuine effort having been made. In the present case, the defendant was not offered the opportunity to provide a blood or urine sample after failing to provide a breath sample.

The Supreme Court was asked to determine whether, on the facts of the case, it was open to the court to find there was a special and substantial reason for the defendant failing to provide a breath sample in accordance with s. 23 of the Road Traffic Act 1994. If that was indeed the case, the court was then asked to determine whether the defendant was entitled to an acquittal on the basis that Gardai had not asked her to provide a urine or blood sample. This section allowed a defence for failing to provide a sample of breath where a special and substantial excuse was present and where the accused agreed to provide a blood or urine sample instead.

Held by Clarke J that in order to avail of the defence contained in s. 23 of the Road Traffic Act 1994, there was two hurdles to overcome: firstly, there had to be a special and substantial reason for refusing to provide a breath sample; and secondly, the accused had to comply with the requirement to provide a urine or blood sample.

In determining whether the defendant had a special and substantial reason for failing to provide a breath sample, it was held that the trial judge had found as a matter of fact that the defendant had a transient medical condition that had prevented her from providing a sample, despite her best efforts. On that basis, it was determined that a special and substantial reason did exist within the meaning of s. 23 of the Road Traffic Act 1994.

In relation to the second leg of the test, the Director had stated that the correct interpretation of the section was that the defendant could only avail of the defence if the defendant actually complied with the requirement to provide a blood or urine sample, or offered to provide but was not called upon to do so. It was held that this was not the correct interpretation so that where a special and substantial reason for not providing a breath sample was present, an accused was entitled to an acquittal even when he or she had not provided a blood or urine sample or at least offered to provide same, if he or she was not warned by Gardai that a failure to provide a urine or blood sample would preclude him or her from using the defence at a later stage.

1 Judgment of Mr. Justice Clarke delivered the 11th March, 2013.

2 Judgment delivered by Clarke J [nem diss]

1. Introduction

3 2 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.

4 3 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.

5 4 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.

6 5 1.4 To understand the issues in more detail it is appropriate to turn next to the case stated.

2. The Case Stated

7 2 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:-

8 i "(i) that a lawful requirement had been made of the accused to provide two samples of her breath pursuant to section 13(1)(a);

9 (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;

10 (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."

11 3 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.

12 4 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".

13 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.

14 5 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., 20 ^th April, 2004). In addition the Director sought to rely on DPP v. Patricia Behan [2003] 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...