DPP v Curry

• Jurisdiction: Ireland
• Judge: Carney J.
• Judgment Date: 14 March 2002
• Neutral Citation: [2002] IEHC 48
• Docket Number: [2001 No. 889SS]
• Court: High Court
• Date: 14 March 2002

DPP v. CURRY

IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 (No. 39 OF 1961)

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

And

SHEILA CURRY

ACCUSED

[2002] IEHC 48

No 889SS/2001

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Road traffic offences

Case stated - District Court - Drink driving - Onus of proof - Evidence - Provision of specimens of breath - Reading based upon calculation - Whether use of deduction in calculating reading unlawful - Road Traffic Acts, 1961–1994 (2001/889 SS - Carney J - 14/03/2002)

DPP v Curry - [2002] 3 IR 131

The accused appeared before the District Court to answer a charge that on a certain date she drove a mechanically propelled vehicle with an excess of alcohol in her breath contrary to section 49(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by section 10 of the Road Traffic Act, 1994. The accused gave two specimens of breath. It was submitted in the District Court on behalf of the accused that the prosecution could only rely upon the two actual breath samples and not upon a third reading which was based upon a calculation not provided for in the section. The learned judge stated a case to the High Court as to whether the prosecution were entitled to use such a calculation and whether a conviction could be based upon such evidence.

Held by Mr. Justice Carney in answering the case stated in the affirmative. Two specimens of breath had been taken in accordance with the Road Traffic Act, 1994. The prosecution operated a system whereby a deduction was made taking into account a margin of error for the benefit of the accused. Whilst it was the case that the prosecution was not obliged to provide for such a margin there was nothing to indicate that the fact of its provision was in any way unlawful. The deduction was incapable of bringing about the conviction of an innocent person.

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACTS 1961 S49(2)

ROAD TRAFFIC ACTS 1961 S49(3)

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 S17

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1994 S17(1)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S50(4)

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S49(8)

ROAD TRAFFIC ACT 1961 S50(10)

ROAD TRAFFIC ACT 1961 S12(3)

ROAD TRAFFIC ACT 1961 S53(6)

ROAD TRAFFIC ACT 1961 S106(3A)

ROAD TRAFFIC ACT 1961 S112(6)

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S13(3)

ROAD TRAFFIC ACT 1994 S21(1)

ROAD TRAFFIC ACT 1994 S13(3)(A)

ROAD TRAFFIC ACT 1994 S17(2)

DPP V FENNELLY UNREP SUPREME 2.12.1998 1998/15/5509

ROAD TRAFFIC ACT 1994 S21(3)

1 14th day of March 2002 byCarney J.

Carney J.

2 This is a case stated by Judge James Paul McDonnell, a Judge of the District Court assigned to the Dublin Metropolitan District, pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961for the opinion of the High Court.

THE CASE STATED.

3 At a sitting of the District Court at Tallaght Courthouse, Westpark, Tallaght, Dublin 24 on December, 4th, 2000, Sheila Curry, the accused herein (hereinafter referred to as "the Accused") appeared before the Court to answer a complaint the subject matter of a summons served upon her in which she was charged with the offence that, on June 11th, 2000, at Sundale Park, Tallaght in the Dublin Metropolitan District, a public place, she drove a mechanically propelled vehicle registered number 89 LH 709 while there was present in her body a quantity of alcohol such that, within three hours after driving the said vehicle, the concentration of alcohol in her breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath contrary to Section 49 (4) and 6 (a) of the Road Traffic Act, 1961as inserted by Section 10 of the Road Traffic Act, 1994.

4 The facts as proved or admitted were as follows:

5 (a) At approximately 7.40 p.m. on June 11th, 2000, Garda Fergal O'Connor of Tallaght Garda Station, County Dublin, was on mobile patrol in the Sundale area of Tallaght. He observed motor vehicle registered number 89 LH 709 emerging from a car park near the entrance to Dolly Heffernan's Public House onto Sundale Park, Tallaght, a public place. He observed that the vehicle was being driven in an erratic manner. Garda O'Connor signalled the driver to stop.

6 (b) Garda O'Connor approached the car and spoke with the driver, who identified herself as Sheila Currry of 29 Kiltalown Heights, Tallaght, Dublin 24. In the course of their conversation, Garda O'Connor got a strong smell of alcohol from the Accused's breath. On the basis of his observations Garda O'Connor formed the opinion that the Accused had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place.

7 (c) At 7.45 p.m., Garda O'Connor informed the Accused of his opinion. He then informed her that he was arresting her under Section 49 (8) of the Road Traffic Acts, 1961to 1995for having committed an offence contrary to Section 49(2), 49 (3) or 49 (4) of the Road Traffic Acts, 1961to 1995. He cautioned her in the usual manner and explained to her that she was being arrested for drunk driving.

8 (d) The Accused was then conveyed to Tallaght Garda Station, arriving there at 7.55 p.m. The Accused was placed in the charge of Sergeant Des Woods, Member in charge of Tallaght Garda Station. Garda O'Connor informed Sergeant Woods that he had arrested the Accused under Section 49 (8) of the Road Traffic Acts, 1961to 1995. Sergeant Woods completed the custody record in respect of the Accused and complied with Section 8 (1) of the Criminal Justice (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987. Sergeant Woods handed the Accused a copy of Form C.72 (s) - Notice of Rights. Subsequently Garda O'Connor was furnished with a copy of the Section 17 Statement.

9 (e) At 20.20 hrs., Garda Lorraine Travers joined Garda O'Connor in the room in Tallaght Garda Station in which the Intoximeter EC/IR was located. Garda Travers introduced herself to the Accused. She explained to the Accused that the Intoximeter EC/IR was designed for the purpose of determining the concentration of alcohol in the breath. Garda Travers then required the Accused, under Section 13 (1) (a) of the Road Traffic Act, 1994, to provide two specimens of her breath by exhaling into the apparatus. She informed the Accused that a failure or refusal to comply with the requirement was an offence and outlined the penalties that could be imposed in respect thereof.

10 (f) Garda Travers entered details of the Accused's name, address and the offence charged. A new mouthpiece was fitted to the Intoximeter EC/IR. Garda Travers explained to the Accused the manner in which she was to provide the specimen of her breath into the Intoximeter. At 8.42 p.m. the Accused provided her first specimen of breath. She provided a second specimen of her breath at 8.44 p.m. The provisions of Section 17 of the Road Traffic Act, 1994were complied with. Garda Travers stated that the Accused acknowledged receipt of both copies of the Section 17 Statement. She retained one copy of the Statement. Garda Travers handed the other copy to Garda O'Connor. Garda Travers stated that the Section 17 Statement indicated a reading for the first breath sample of 108 microgrammes of alcohol per 100 millilitres and for the second breath sample of 117 microgrammes of alcohol per 100 millilitres of breath. She then said that the reading was 89 microgrammes of alcohol per 100 millilitres of breath.

11 (g) Under cross-examination by Mr. Tunney, Solicitor for the Accused, Garda Travers stated that the first reading on the statement was a simulator check. The second reading was the first breath sample given by the Accused. The third reading was a simulator check. The fourth reading was a second breath sample given by the Accused.

12 2. At the conclusion of evidence, Mr. Tunney submitted that Section 17 (1) of the Road Traffic Act, 1994provides that where, consequent on a requirement under Section 13 (1)(a) a person provides two specimens of his breath and the apparatus referred to in that Section determines the concentration of alcohol in each specimen -

13 (a) in case the apparatus determines that each specimen has the same concentration of alcohol, either specimen and

14 (b) in case the apparatus determines that each specimen has a different concentration of alcohol.

15 The specimen with the lower concentration of alcohol shall be taken into account for the purposes of Section 49 (4) and 50(4) of the Principal Act, and the other specimen shall be disregarded. Mr. Tunney submitted that the Prosecutor could rely only upon the two actual breath samples...