DPP v Dardis

• Jurisdiction: Ireland
• Judge: Finlay Geoghegan J.
• Judgment Date: 11 December 2015
• Neutral Citation: [2015] IECA 284
• Docket Number: [2015 No. 122]
• Court: Court of Appeal (Ireland)
• Date: 11 December 2015

[2015] IECA 284

THE COURT OF APPEAL

The President

Finlay Geoghegan J.

Hogan J.

[2015 No. 122]

In the matter of Section 2 of the Summary Jurisdiction Act 1857 as Extended by Section 51 of the Courts (Supplemental Provisions) Act 1961

Between

The Director of Public Prosecutions (At the Suit of Thomas James Kilbride)

Appellant

and

Ronald Dardis

Respondent

Crime & sentencing – Road traffic – Intoxicated driving – Taking of specimen of breath – Nil by mouth period of 20 minutes before taking of specimen – Whether delay in taking specimen unreasonable

Facts: The respondent had been arrested for intoxicated driving, and brought to a Garda station for taking a specimen of breath to determine the concentration of alcohol in his body. There was a delay of approximately an hour in doing so. The District Court had dismissed the charge against the respondent on the basis the delay was unreasonable. The High Court had found the ruling on the delay was a finding of fact by the District Judge and that it could not intervene. The DPP now appealed.

Held by Ryan P, that the appeal would be allowed, and that the trial judge was not correct in finding a delay of 20 minutes was not justified. Further he was not correct in his dismissal of the charge. The Court was satisfied both points involved a matter of law rather than fact. DPP v Fox [2008] 4 IR 811

considered.

JUDGMENT of the Court delivered by the President on 11th December 2015

1 This is an appeal by the Director of Public Prosecutions against the decision of the High Court on a case stated for the opinion of that court by Judge Bryan Smyth of the District Court as to whether he was correct in law in deciding an issue and dismissing an intoxicated driving charge against Mr Dardis.

2 On 8th March 2014, Garda Shay Kilbride arrested Mr. Dardis under s. 4(8) of the Road Traffic Act 2010, and brought him to Terenure Garda station where, just over an hour later, he provided breath specimens that revealed a concentration of alcohol of 64 µg per 100ml of breath.

3 The issue that arose in the hearing of the charge before Judge Smyth has its origins in a series of cases decided by the Supreme Court concerning the procedure that is adopted in the Garda station in breath specimen cases. It is now accepted, and a judge may take judicial notice, that it is good practice to ensure that a person who is required to give a breath sample has not consumed anything by mouth in a period of 20 minutes before the sample is taken. There is a Garda Siochána circular to that effect which reflects best practice scientifically to ensure the integrity and validity of the sample.

4 In the first of the cases that came before the Supreme Court, DPP v. Finn [2003] 1 I.R. 373, the evidence was that it was Garda practice based on a circular to that effect to wait 20 minutes while observing the arrested person and before making the demand for breath samples. There was no evidence in the trial court to explain or justify why it was necessary to detain the person for that period. The court held that in the absence of justifying evidence, a period of arbitrary detention based in policy was not permissible in law and it followed that the arrested person was not in lawful custody. In the circumstances, the prosecution failed.

5 In DPP v. McNiece [2003] 2 I.R. 614, evidence was given by a trained Garda Sergeant and by an expert scientist that it was necessary, in accordance with best practice so that a valid sample was obtained, to wait for 20 minutes while observing the arrested person to ensure that he or she consumed nothing by mouth. The Supreme Court distinguished its previous decision by reference to the absence in DPP v. Finn of evidence to justify the 20-minute delay. In this case, that was rationally explained and the Court accepted that as satisfactory.

6 The third case is DPP v. Fox [2008] 4 I.R. 811, in which the time in issue was 27 minutes, including the 20 minutes required by best scientific practice. The Supreme Court held that the period of seven minutes was insignificant in the circumstances and did not justify the acquittal of the accused. The court said that not every delay was unreasonable and it was only unreasonable delays that needed to be explained and justified. It was unavoidable, and entirely to be expected, that there would be delays from time to time, depending on the exigencies of the time and place. Their judgment reiterated the analysis of the Finn case, emphasising that it was the unexplained and unjustified policy of detention for the period that rendered the detention of the arrested person unlawful in that case.

7 In the case stated herein, Judge Smyth records the evidence of Garda Kilbride that at 00.45 hours, he commenced a 20-minute period of observation to ensure that the accused took ‘nil by mouth’ prior to exhaling into the breath-alcohol analysis machine. However, two things happened that caused the Garda to believe that it was necessary to commence another 20-minute period of observation. First, he briefly looked away at about a minute before the end of the period and he could not be satisfied that the accused had taken ‘nil by mouth’. Secondly, during the course of the first observation period, he became aware that the Evidenzer machine was in use. The Garda commenced a second period of observation at 01.12 at the end of which Mr Dardis provide the requisite two samples of breath.

8 The defence submitted that a 40-minute observation period was unnecessary and unjustified in the circumstances, and momentarily looking away did not justify the recommencement of a full second period of observation. The prosecution submitted that the time taken was necessary to ensure an accurate test.

9 Judge Smyth set out his findings, his reasoning and the questions on which he sought the opinion of the High Court as follows:

‘I was satisfied and I so found that the second observation period was undertaken for a combination of reasons: first, because it was noted that the Evidenzer machine was in use by someone else during the first observation period and also because the Garda had momentarily lost sight of the Accused towards the end of that observation period giving rise to alleged concerns as to whether the garda could prove beyond a reasonable doubt that the accused had taken “nil” by mouth in the 20 minute period prior to exhaling into the apparatus, a very important factor in ensuring an accurate breath-alcohol reading.

Whereas I was satisfied that an observation or deprivation period of twenty minutes prior to exhaling into the Evidenzer machine is reasonably necessary in order to have an effective and reliable analysis of an arrested person's breath, I was of the opinion that Garda Kilbride should have checked to see if the Evidenzer machine was in use before he commenced the first 20 minute period of observation. Had he done so, he would have seen that the machine was in use and he could then have waited and commenced the observation period later when he knew, the machine was available. There would then have been only one period of observation. Moreover, I was satisfied that the momentary looking-away by Garda Kilbride, while he remained in the room with him, was not sufficient in the particular circumstances to give rise to a reasonable apprehension that the accused could have ingested, imbibed or otherwise taken something by mouth that would render the breath-alcohol reading inaccurate.

In the circumstances I was satisfied that the detention for the second 20 minute period of observation was unjustified and I dismissed the case.

The Prosecutor, being dissatisfied with my decision as being erroneous on a point of law, applied that I state a case for the opinion of the High Court. The opinion of the High Court is hereby sought on the following questions:

(i) Was I correct in law in my determination that the second twenty minute period of observation in this case was not justified?

(ii) Was I correct in law in dismissing the charge?’

Decision of the High Court

10 Hedigan J. observed that the procedure in a case stated is ‘exclusively confined to correcting errors of law by an inferior court in the determination of proceedings before it’. The law in a case such as this was that the Gardaí were entitled to detain the arrested person for as long as was reasonably necessary to obtain the sample required but the powers had to be exercised in a manner that did not involve unreasonable or unnecessary delay. He cited DPP v. Finn [2003] 1 I.R. 312. The onus of proving the necessity and reasonableness of the detention lies upon the prosecutor. The 20-minute observation period was reasonably necessary to obtain a reliable sample: DPP v. McNeice [ 2003] 1 I.R. 372.

11 The High Court turned then to the decision under consideration and held as follows:-

‘The District Judge, having heard the evidence, concluded that the Garda should have checked to see if the Evidenzer was in use, and also that what he found to be a momentary looking away by the Garda while remaining with the accused in the room was not sufficient in the circumstances to give rise to a reasonable apprehension that the accused could have ingested, imbibed or otherwise taken something by mouth, thus rendering the reading accurate. For the combination of these two reasons, the District Judge was satisfied that the second detention period was unjustified.’

12 Hedigan J. held that this was a finding of fact reasonably made by the trial judge, who, having heard the evidence concluded that a second period of detention in the circumstances was unjustified. It was not an error of law, but ‘an alleged error of factual analysis that is presented by the prosecution to this Court’. He held that he could not intervene even if he were to...