DPP v O'Connell
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 01 October 2018 |
| Neutral Citation | [2018] IEHC 529 |
| Docket Number | 2017 No. 1164 SS |
| Court | High Court |
| Date | 01 October 2018 |
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 (AS AMENDED)
[2018] IEHC 529
2017 No. 1164 SS
THE HIGH COURT
Consultative Case Stated – Questions of law – Road Traffic Act 2010 – District Judge seeking to refer questions of law to the High Court – Whether the doctor's form has lost its evidentiary presumption
Facts: The accused, Ms O'Connell, on the 3rd March 2017, appeared before Nenagh District Court for trial on foot of summons case number 2016/19224 alleging that on the 5th November 2015 at Belleen Upper Nenagh the accused drove a mechanically propelled vehicle while there was present in her body a quantity of alcohol such that within 3 hours after so driving the concentration of alcohol in her blood did exceed a concentration of 50 milligrams of alcohol per 100 millilitres of blood to wit 220 milligrams of alcohol per 100 millilitres of blood contrary to s. 4(2)(a) & (5) of the Road Traffic Act 2010. At the conclusion of the prosecution case, the accused applied for a direction to dismiss the summons against her on two grounds. The first ground was that due to the failure by the designated doctor, Dr Dubre, to complete paragraph no. 2 of the doctor's form issued pursuant to s. 15(1) of the Road Traffic Act 2010 specifying blood and the failure to delete either paragraph (a) or paragraph (b) later in the form, and further the fact that the doctor stated in the form that she labelled the container with the name and date of the accused when the evidence was that she labelled the bottle, the form cannot be held to be duly completed; therefore the form has lost its evidentiary presumption and thereby cannot be admitted in evidence as proof of the facts stated therein. The second ground was the fact that the evidence of Garda Hehir had established that the labels were placed on the bottles and not on the containers. In response, Inspector Maher on behalf of the Prosecution posited that there was no prejudice to the accused and that on the evidence as adduced the District Judge was not bound to dismiss the prosecution. The District Judge adjourned the case to Nenagh District Court on the 21st April 2017 to give due consideration to the legal submissions. On the adjourned date the parties were advised that the District Judge had decided to refer questions of law to the High Court pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961.
The opinion of the High Court was sought on the following questions of law: "(a) Am I correct in being of the opinion that due to the omissions and error in the doctor's form that it cannot be deemed to be duly completed and thereby has lost its evidentiary presumption under section 20 and cannot be admitted in evidence as proof of the facts stated therein? (b) If the answer to (a) is yes, can the Court look outside the form for evidence that the doctor has complied with the statutory requirements? (c) If the answer to (b) is yes, does the Court have judicial discretion to rely on the evidence of Garda Hehir that the statutory procedures under section 15 have been complied with by the doctor? (d) Has the Court judicial discretion to deem that the statutory requirement under section 15 to complete the form by the doctor has been satisfied despite the omissions and error in the form as adduced in evidence and if there is such judicial discretion is it exercisable only where no prejudice is caused to the accused by such omissions or errors? (e) The requirement to label the containers is not a specific statutory requirement under section 15 but is introduced in a form prescribed for the purposes of section 15 contained in a schedule to S.I. No 540 of 2011. [1] What is the legal consequence of the evidence adduced that the doctor labelled in the specimen bottles but failed to label the containers? [2] Is the defence correct in its submission that due to this error of the doctor that the Court must dismiss the prosecution?"
The Court held that it would answer the questions raised as follows: Question (a): 'Yes', the form loses its evidential presumption, though only, it seemed to the Court, in respect of the taking of blood and labelling; Question (b): 'Yes'; Question (c): 'Yes'; Question (d): 'Yes'; Question (e)[1]: It seemed to the Court that one was in DPP v Tate Croom-Carroll [1999] 4 IR 126 territory with an explanation required of (and provided by) the prosecution, viz. the garda evidence that the specimen bottle/container was labelled/was not labelled by Dr Dubre (which evidence comes coupled with the Medical Bureau certificate which states "no name on container/Martina O'Connell on specimen bottle"); Question (e)[2]: 'No'.
Consultative case stated.
This is a consultative case stated by a judge of the District Court. The case raises an issue in the context where (i) a blood specimen is taken from a person later prosecuted for drunk driving, and (ii) there are omissions in the form completed by a doctor in relation to the specimen. In a nutshell, the District Judge raises a number of questions as to whether such omissions are fatal to the drunk driving prosecution. Rather than summarise the case stated, the main substance of same is quoted hereafter:
'2. At a sitting of Nenagh District Court on the 3rd day of March 2017, Ms Martina O'Connell (hereinafter referred to as "the accused") appeared before me for trial on foot of summons case number 2016/ 19224...alleging that on the 5th November 2015 at Belleen Upper Nenagh the accused did drive a mechanically propelled vehicle...while there was present in her body a quantity of alcohol such that within 3 hours after so driving the concentration of alcohol in her blood did exceed a concentration of 50 milligrams of alcohol per 100 millilitres of blood to wit 220 milligrams of alcohol per 100 millilitres of blood contrary to section 4(2)(a) & (5) of the Road Traffic Act 2010.
3. The case for the Prosecution was presented by Inspector Seamus Maher. Mr Dully, counsel instructed by Mr John Spencer, Solicitor, appeared for the accused.
4. On behalf of the Prosecution, Garda Mairead Hehir, a member of An Garda Síochána stationed in Nenagh, County Tipperary, gave the following evidence:
She stated that on the 5th November, 2015 at 00:48 she was on mobile patrol duty when she observed a vehicle travelling at speed on St Conlon's Road, Nenagh. Garda Hehir turned the patrol car and followed the vehicle. She observed the vehicle travel towards the Portroe roundabout where it nearly collided with the traffic island before entering the roundabout. Garda Hehir activated the siren and lights to indicate to the vehicle to stop. The vehicle pulled in at Belleen Upper, Nenagh. Garda Hehir approached the vehicle and requested the driver to produce her driving licence. The driver started laughing and Garda Hehir then requested her name which she gave as Martina O'Connell. While speaking to the accused, Garda Hehir noticed a strong smell of alcohol from her breath. The Garda cautioned the accused and made a requirement under Section 9 of the Road Traffic Act 2010 to provide a specimen of her breath. The accused complied with this requirement and the breath sample registered a fail. Garda Hehir formed the appropriate opinion and arrested the accused under Section 4(8) of the Road Traffic Act 2010 and conveyed her to Nenagh Garda Station where she was introduced to the member in charge, Garda Michelle Casey. Garda Hehir gave evidence to the effect that Garda Casey complied with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 and 2006.
At 1.27am, Dr Dubre, a designated doctor under the Road Traffic Acts, arrived at the Garda Station. Garda Hehir introduced the accused to Doctor Dubre and proceeded to the doctor's room, where Garda Hehir made the statutory requirement under Section 12 of the Road Traffic Act 2010 requiring the accused to permit the designated doctor to take from her a specimen of blood or at her option a specimen of urine. The accused opted to provide a blood specimen.
Garda Hehir gave evidence that the doctor took a specimen of blood from the accused. The doctor then separated the blood into two glass bottles, placed stickers with the accused's name and date of birth on the bottles and sealed the bottles with a white tape, placed the bottles into the white containers and placed a red seal on each container.
The accused opted to retain one of the samples. The doctor then placed the remaining container in the specimen kit box, along with the doctor's form. The accused was subsequently released from custody.
Garda Hehir forwarded the sample to the Medical Bureau of Road Safety and subsequently received the certificate of analysis from the Bureau with a reading of 220 milligrams of alcohol per 100 millilitres of blood.
The Doctor's form issued pursuant to Section 15(1) of the Road Traffic Act 2010 and the Medical Bureau certificate issued pursuant to Section 17(3) of the Road Traffic Act 2010 was produced to the Court by Garda Hehir....
On cross examination by Mr Dully BL, Garda Hehir confirmed that Doctor Dubre was not being called to give evidence as she was now in South Africa.
Garda Hehir agreed with Mr Dully that the Medical Bureau certificate states "no name on container Martina O'Connell" on specimen bottle".
Garda Hehir further accepted that paragraph no.2 of the doctor's form under Section 15, which requires the nature of the specimen (either blood or urine) to be completed, had been left blank and that further Doctor Dubre had failed to delete either paragraph (a) or paragraph (b) at a later point in the certificate indicating whether the specimen taken...
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