DPP v Daly

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 20 December 2001
• Neutral Citation: [2001] IEHC 228
• Docket Number: No. 2295SS 2001
• Court: High Court
• Date: 20 December 2001

[2001] IEHC 228

THE HIGH COURT

No. 2295SS 2001

DPP (VANCE) v. DALY

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT1961

AND IN THE MATTER OF A CONSULTATIVE CASE STATED IN THE PROCEEDINGS BEFORE THE DUBLIN DISTRICT COURT

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA GARETH VANCE)

PROSECUTOR

AND

ADRIAN DALY

ACCUSED

Citations:

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1994 S6(2)

ROAD TRAFFIC ACT 1994 S12(1)

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S13(4)

ROAD TRAFFIC ACT 1994 S6(2)(E)

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC ACT 1961 S49(A)

ROAD TRAFFIC ACT 1994 S21(3)

ROAD TRAFFIC ACT 1968 PART V

ROAD TRAFFIC ACT 1994 S21(1)

DPP V SYRON UNREP O'HIGGINS 7.3.2001

MURPHY, STATE V JOHNSTON 1983 IR 235

MANSON V O'DONNELL UNREP KINLEN 27.1.2000 1999/17/5103

ROAD TRAFFIC ACT 1994 S12(4)

ROAD TRAFFIC ACT 1994 PART III

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S50

ROAD TRAFFIC ACT 1994 S13(4)

ROAD TRAFFIC ACT 1994 S18(4)

ROAD TRAFFIC ACT 1994 S19(4)

ROAD TRAFFIC ACT 1968 S37

ROAD TRAFFIC ACT 1994 S6

ROAD TRAFFIC ACT 1968 S38

ROAD TRAFFIC ACT 1968 S38(2)

ROAD TRAFFIC ACT 1994 S6(2)

ROAD TRAFFIC (AMDT) ACT 1978 S22

ROAD TRAFFIC (AMDT) ACT 1978 S23

ROAD TRAFFIC (AMDT) ACT 1978 PART III

Synopsis:

CRIMINAL LAW

Road traffic offences

Drunk driving - Case stated - Onus of proof - Evidence - Specimen of breath - Use of alcolyser or "intoxilyser" - Right to fair trial - Whether necessary to demonstrate that apparatus approved by Medical Bureau of Road Safety - Road Traffic Acts, 1961–1994 (2001/2295SS - Kelly J - 20/12/01) - [2002] 2 ILRM 290

DPP v Daly

Facts: The accused appeared before the District Court to answer a charge that on a certain date he drove a mechanically propelled vehicle with an excess of alcohol in his 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. During the course of the case a legal issue arose which resulted in the learned judge stating a case to the High Court. In essence the question asked was whether or not it was necessary for the prosecution to demonstrate that an apparatus used to collect a specimen of breath was an approved apparatus with the meaning of the Road Traffic Acts and had been approved by the Medical Bureau of Road Safety (“the Bureau”). It was argued that no documentation had been produced to satisfy the court that the particular machine was an approved device and that as a result uncertainty was created. It was contended that in the absence of either evidence or a statutory presumption to the effect that the apparatus purporting to determine the concentration of alcohol in the accused’s breath was approved, supplied and tested by the Bureau the prosecution must fail and the case stated must be answered in the affirmative. The prosecutor’s submitted that in such a prosecution the presumptions which were provided for in sections 13(4), 17(1) 21(1) of the Road Traffic Act, 1994 were sufficient when coupled with the other evidence which was tendered to the District Judge to establish all the ingredients of the offence alleged.

Held by Mr. Justice Kelly in answering the case stated in the negative. Applying the reasoning set out in previous caselaw it could not be said that there was a necessity to prove that the obligations of the Bureau under s.6 of the 1994 Act had been complied with. The evidence tendered in the case coupled with the statutory presumptions constituted sufficient evidence of the ingredients of the offence necessary to give rise to a successful prosecution of the offence charged. The accused had not been deprived of any of his rights to challenge the evidence tendered against him. The question posed in the case stated would be answered “no”.

JUDGMENT of

Mr. Justice Kelly

1 delivered the 20th day of December, 2001.

2 On the 5th June, 2001 the accused Adrian Daly (Mr Daly) appeared before Judge Gerard Haughton at the Dublin Metropolitan District Court to answer an accusation laid against him by the Director of Public Prosecutions. Mr Daly was accused that on the 5th December, 2000, at Stillorgan, Road in the Dublin Metropolitan District he drove a mechanically propelled vehicle 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 breath exceeded a concentration of 35 mg of alcohol per 100 ml per 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.

3 During the course of the case being dealt with by Judge Haughton a legal issue arose which has resulted in him stating this consultative case stated.

4 The question which has been posed by the District Court Judge for the opinion of this court is

"whether it is necessary, having regard to the provisions of section 6(2) of the 1994 Road Traffic Act for the prosecution in a prosecution pursuant to section 49(4) of the Road Traffic Acts,1961to 1995to prove that an apparatus purporting to determine the concentration of alcohol in an accused's breath is an approved apparatus in the sense of that term in the Road Traffic Acts,1961to 1995and whether it is necessary for the prosecution to prove that the apparatus has been approved by the Medical Bureau of Road Safety."

5 It is necessary to set out the facts as found by the District Judge in order to understand how this question came to be posed.

6 The following are the facts of the case as set out in the case stated.

7 On the 5th December, 2000 Garda Vance was on duty in the Donnybrook area, a public place, and was driving an unmarked garda patrol car fitted with a camera and video recording equipment. At approximately 1.40 am he was driving on the N11 leaving Donnybrook in the direction of Stillorgan when he observed a Jaguar motor car, registration number 96 D 3041, which was veering between the bus lane and the driving lane. The vehicle in question was changing lanes without indicating. Garda Vance turned on the flashing blue lights on the garda car and the Jaguar car pulled into the left of the carriage way.

8 Garda Vance spoke to the driver and asked him for an explanation as to his driving. The accused replied that he had been talking to his wife. Whilst speaking to Mr Daly Garda Vance got a smell of intoxicating alcohol from his breath. As a result of that he made a requirement under s. 12(1) of the Road Traffic Act,1994for Mr Daly to provide him with a specimen of his breath by exhaling into an apparatus designed for indicating the presence of alcohol in his breath. The garda explained to Mr Daly that if he refused or failed to provide a specimen of his breath that he would be liable on conviction to a fine not exceeding £1,000 or to imprisonment for a term of six months or both.

9 Mr Daly complied with the garda's requirement and gave a breath specimen which indicated that he had failed the breath test. At the point Garda Vance formed the opinion that Mr Daly had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled motor vehicle in a public place. He informed Mr Daly of his opinion and he told him that he was arresting him under s. 49(8) of the Road Traffic Acts,1961–1995for an offence under s. 49(1), (2), ( 3) or (4) of the said Acts. He explained to Mr Daly in ordinary language that he was being arrested for drunken driving. The time of the arrest was 1.48 am. Garda Vance then formally cautioned Mr Daly and asked him for his name and address which was given as Adrian Daly of Craughwell, Brighton Road, Foxrock, Dublin 18. Garda Vance then conveyed Mr Daly to Pearse Street garda station arriving there at 2.00 am.

10 At the station Garda Vance introduced Mr Daly to Garda Michael Quinn who was the member who would conduct an evidential breath test using the Lion Intoxilyzer 6000 on him.

11 Mr Daly was taken to Pearse Street station rather than Donnybrook station because there was no Lion Intoxilyzer 6000 at Donnybrook station. Garda Vance was present during the breath test. The introduction to Garda Quinn took place in the public office at Pearse Street station. Garda Vance was present during the subsequent breath test but took no part in it as that was the function of Garda Quinn. Whilst at Pearse Street station Mr Daly asked for a solicitor and was allowed to use a telephone for that purpose. All the accused's requests whilst in the station were complied with.

12 Garda Quinn was introduced to Mr Daly at 2.00 am on the 5th December, 2000 at Pearse Street station. Mr Daly was introduced as a person arrested on suspicion of drunken driving. Garda Quinn had a brief conversation with Garda Vance and introduced himself to Mr Daly. Garda Quinn informed Mr Daly that he was of the opinion that he had consumed an intoxicant. Mr Daly made a request to Garda Quinn for a drink of water at 2.30 am. This request was met. He drank the water.

13 Garda Quinn brought Mr Daly to the doctor's room in Pearse Street station at 2.47 am for the purpose of conducting an evidential breath test. Garda Vance was present in the room at the time. Garda Quinn informed Mr Daly that he was trained to operate the apparatus which was the Lion Intoxilyzer 6000. Garda Quinn showed the accused a new disposable mouthpiece which was in a sealed wrapper and he placed it on the machine without contaminating it. He did not touch the mouthpiece with his fingers as he used the wrapper to attach it to the apparatus. Garda Quinn described the mouthpiece as being a fresh and clean mouthpiece which was...