DPP v Croom-Carroll

• Jurisdiction: Ireland
• Judge: Barrington, J.
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IESC 2
• Court: Supreme Court
• Docket Number: [S.C. No. 100 of 1999]
• Date: 01 January 2000

[1999] IESC 2

THE SUPREME COURT

Barrington, J.

Lynch, J,

Barron, J.

Record No. 100/99

DPP v. TATE CROOM-CARROLL

IN THE MATTER

OF

SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Appellant

and

TATE CROOM-CARROLL

Defendant/Respondent

Citations:

ROAD TRAFFIC ACT 1994 S18(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1994 S10

AG V HOLLINGSWORTH 1973 107 ILTR 77

DPP V MCGOVERN UNREP GEOGHEGAN 28.10.1998 1998/16/5810

ROAD TRAFFIC ACT 1968

ROAD TRAFFIC REGS 1968 SI 196/1969

ROAD TRAFFIC ACT 1994 S19

ROAD TRAFFIC ACT 1994 S18(2)

ROAD TRAFFIC ACT 1994 S18(3)

ROAD TRAFFIC ACT 1994 S18(4)

ROAD TRAFFIC ACT 1994 S19(1)

ROAD TRAFFIC ACT 1994 S19(2)

ROAD TRAFFIC ACT 1994 S19(3)

ROAD TRAFFIC ACT 1994 S19(4)

Synopsis

- [1999] 4 IR 126 - [2000] 1 ILRM 289

The Court was satisfied that s. 18 of the Road Traffic Act 1994 does not require that the glass bottles into which samples of urine and blood are placed be sealed but merely requires that any such bottle be placed in a container which is then forthwith sealed. However, in the present case the conflict between the form completed by the designated doctor and the certificate issued by the medical bureau is sufficient to defeat the statutory presumption of regularity. The Supreme Court so held in answering the case stated.

1 Barrington, J. delivered on the 24th day of June, 1999.

2 This consultative case stated raises an important point on the proper interpretation of Section 18 (1) of the Road Traffic Act, 1994.

FACTS.

3 The facts, so far is relevant, are as follows.

4 On the 17th day of June, 1998 the Defendant/Respondent (hereinafter referred to as the Defendant) appeared before Judge Michael Pattwell, a Judge of the District Court, to answer a complaint, the subject matter of a Summons served upon him. The complaint was that the Defendant did on the 15th day of January, 1998 at Rececourse, Cashel, Co. Tipperary, a public place, drive a mechanically propelled vehicle, to wit motor jeep registration K-572-BUH while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in his blood did exceed a concentration of 80 milligrams of alcohol per 100 millilitres of blood contrary to Section 49 (2) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994.

5 At the said hearing the Director of Public Prosecutions was represented by Inspector Tadgh Browne. The Defendant was represented by Mr. Peter Reilly of James Reilly & Sons, Solicitors.

6 Evidence was given of how Garda Michael Mahony of Thurles Garda Station stopped the Defendant who was driving the said jeep at Rececourse, Cashel, aforesaid on the 15th day of January, 1998, of how Garda Mahony became suspicious that the Defendant had been drinking to excess, required him to furnish a specimen of his breath (which proved positive), and of how the appropriate procedures were followed up to and including the arrest of the Defendant and the furnishing by him of a specimen of his blood to Dr. William Ryan, a designated doctor.

7 The specimen was divided by the Doctor into two parts one part being furnished to the Defendant and the other sent to the Medical Bureau of Road Safety, which subsequently issued a certificate indicating a concentration of 109 milligrams of alcohol per 100 millilitres of the Defendant's blood.

8 Under cross-examination by Mr. Reilly, Garda Mahony said that Dr. Ryan had divided the Defendant's blood sample into two parts, placing each part into one of two glass bottles. Garda Mahony said that the glass bottles were not sealed but were secured only by means of a screw cap. He said that the glass bottles could not be sealed, save that on occasion the designated Doctor could put masking tape around the lid, although that did not happen in the present case. Garda Mahony agreed that a person could, if he had access to the bottle, open it, remove and replace the contents, and put the lid back on the bottle without anyone knowing that this had been done. Garda Mahony stated that after the screw cap had been applied to the bottle, it was placed in a cylindrical cardboard container and a seal was affixed to the container. The container was then posted to the Bureau.

9 At that stage in the evidence a glass bottle, its screw cap and a cylindrical container were produced to the Court so that the learned District Court Judge could inspect them. Garda Mahony confirmed that the bottle, screw cap and container were in all material respects identical with those used on the occasion in question. Having inspected the bottle and screw cap, the learned District Judge concluded that screwing the cap on to the bottle would not in fact seal it.

10 At the close of the prosecution case Mr. Reilly submitted on behalf of the Defendant that the prosecution had failed to prove its case for the following reasons:-

11 Mr. Reilly submitted that under Section 18 (1) of the Road Traffic Act, 1994the designated Doctor, having taken a specimen of blood from a person is required to divide the specimen into two parts and "place each part in a container which he shall forthwith seal......". Mr. Reilly submitted that the requirements of the Act had not been complied with in the present case beacause the container into which the Defendant's blood sample had been placed was not in fact sealed.

12 Mr. Reilly relied upon the case of Attorney General v. Hollingsworth [1973] 107 ILTR 77 where the Supreme Court held that the regulations then in force were not complied with where a blood sample had been sent to the Medical Bureau of Road Safety in a tube which had been stopped with a screwed on screw top, because the regulations required that the tube be stopped with a stopper which would seal it. He referred to the final paragraph of the Judgment of Henchy, J. in that case where he said that:-

"There should be no difficulty in complying with Article 8 (3) (d) in future cases. All that is necessary is that the medical practitioner be provided with a sealing agent with which to seal the screwed-on screw-top, so as to insure that the screw top may not be removed without breaking the seal".

13 In replay Inspector Browne submitted that Section 18 (1) of the 1994 Act had been complied with in full. He submitted that the Defendant's sample had been divided into two parts by placing it into two glass bottles. The Section was, he submitted, complied with once the glass bottles were placed in cardboard containers which, as was the fact, were in turn sealed.

14 The learned District Judge reached the conclusion that the requirements of Section 18 (1) of the Road Traffic Act, 1994, had not been complied with for the reason that the container, which under the Statute was required to be sealed, was the container which holds the specimen in question, and not some other container. As however he considered the point raised to be an important one he agreed to state a case for the determination of the High Court.

15 Both sides, we are informed, were consulted about the drafting of the case stated and the question submitted for the opinion of the High Court was:-

"Whether the requirement of Section 18 (1) of the Road Traffic Act, 1994, that a specimen of blood provided by a Defendant be placed in a container which must be sealed forthwith is complied with in circumstances where the specimen is placed in a container which is sealed by the application of a screw cap?"

PROCEEDINGS IN THE HIGH COURT.

16 In the High Court, both sides made submissions on the assumption that the glass bottle referred to in evidence was the "container" referred to in Section 18 (1) of the Road Traffic Act, 1994. The Defendant relied upon Attorney General v. Hollingsworth to establish that the glass bottle had not been "sealed" while the Director of Public Prosecutions relied upon the unreported decision of Geoghegan, J. in the case of DPP v. McGovern in which Judgement was delivered on the 28th day of October, 1998.

17 In the course of the case stated the learned District Justice says that at a certain stage in the District Court proceedings "a glass bottle, its screw cap and a cylindrical container" were produced by the Prosecution to the Court and the Prosecution evidence was that the bottle, the screw cap and the container were in all material respects identical to those used in relation to the specimen taken from the Defendant. These items, however, were not attached to the case stated and, we are informed, that at the time of the hearing in the High Court, Counsel for the Director of Public Prosecutions had not seen any specimen of the kit issued by the Medical Bureau of Road Safety in connection with the taking of blood specimens for the purpose of the Act.

18 The case of Attorney General v. Hollingswoth relied on by the Defendant in the High Court may be important for illustrating the difference between, a bottle which is "sealed" and a bottle the cap of which is merely screwed on. But it is important to remember that that case related to procedure under a different Act, [The Road Traffic Act, 1968] and under different Regulations [The Road Traffic Regulations, 1968; S.I. 196 of 1969] and the artificial meaning given to the word "stopper" in those regulations.

19 The case of DPP v. McGovern relied on by the Director of Public Prosecutions in the High Court was very similar to, if not identical with, the present case. In that case the Certificate issued by the Medical Bureau of Road Safety pursuant to Section 19 of the 1994 Act included the following comment by the Chairman/Director of the Medical Bureau of Road Safety:-

"No name on container-Patrick McGovern on specimen bottle".

20 The Director of Public Prosecutions however successfully submitted to the...