DPP v O'Donoghue

 
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[2018] IEHC 353

THE HIGH COURT

McDermott J.

[2017 No. 1173 S.S.]

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961

BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS (GARDA BARRY DOHERTY)
PROSECUTOR
AND
MARIAN O'DONOGHUE
ACCUSED

Designated doctor – Statutory function – Provision of urine sample – District judge seeking the guidance of the High Court – Whether district judge was correct in law as to his interpretation of s. 12(1)(b) and s. 15 of the Road Traffic Act 2010

Facts: The accused, Ms O'Donoghue, was summonsed to appear before the District Court in respect of a charge that she, on the 27 June 2006, at Bóthar na Luachra, Shannon, Co Clare, 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 per 100 millilitres of urine, to wit 200 millilitres of alcohol per 100 millilitres of urine, contrary to s. 4(3)(a) and 5 of the Road Traffic Act 2010. Judge Durcan heard the evidence in the case on 9th February, 2017. Garda Doherty gave evidence of invoking s. 12(1)(b) of the 2010 Act requiring the accused either to permit the designated doctor to take from her a specimen of her blood or at her option to provide for the doctor a specimen of her urine. Evidence was then given by Garda Doherty that he handed a sealed urine kit to the designated doctor, that the doctor opened the kit, removed the jug and gave the jug to the accused. Garda Doherty then said that the accused provided the sample supervised by Garda Hanley, the member in charge, and a female member of An Garda Síochána. Garda Hanley gave evidence that Garda Doherty asked her to supervise the provision by the accused of the urine sample. Garda Hanley stated that she informed the accused that she would supervise her, that the accused went into "the cubicle" (toilet) with the jug and that she stood at the door. Garda Hanley added that she observed the accused providing the sample. She added that the accused then came out of the cubicle with the jug and handed it to the designated doctor. Garda Hanley added that she left the doctor's room at that stage. The judge then set out his ruling in respect of the role of the designated doctor, expressing the view that the correct interpretation of s. 12(1)(b) and s. 15 of the 2010 Act, in relation to the statutory function of the doctor and to the provision by an accused person of a urine sample, is that the sample be provided directly to the doctor. Arising from that ruling the judge sought the guidance of the High Court as to whether he was correct in law as to his interpretation of the aforementioned statutory provisions and therefore correct in dismissing the prosecution case. A case stated was drafted, pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961, and the matter was adjourned to await the judgment of the High Court.

Held by the Court that there was no statutory requirement imposed on the designated practitioner to take the sample of urine from the accused directly; this only arises in respect of the taking of the blood sample under s. 12. The Court held that there was no requirement that the doctor be present at the moment of urination or the filling of the receptacle or that he/she should observe it. The Court held that there was no statutory requirement that the sample once delivered into the receptacle be personally handed by the accused to the doctor.

The Court held that the district judge was not correct in law in his interpretation of s. 12(1) and s. 15 of the 2010 Act. The Court therefore answered the question as to whether he was correct in law as to his interpretation of the aforementioned statutory provisions in the negative; consequently, the second question as to whether the district judge was correct in dismissing the prosecution case which was posed on the presumption that the first question was answered in the affirmative did not arise for consideration.

Case stated.

JUDGMENT of Mr. Justice McDermott delivered on the 15th day of June, 2018
1

This is a consultative case stated by Judge Patrick Durcan, pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961 on a point of law for the opinion of the High Court.

2

The accused Ms. Marian O'Donoghue was summonsed to appear before the District Court in respect of a charge that she: -

'On the 27/06/2006 at Bóthar na Luachra, Shannon, Co Clare, a public place in the said District Court area of Ennis, District Court Area No 12, did drive a mechanically propelled vehicle registration number 03WD 2918 while there was present in your body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol per 100 millilitres of urine, to wit 200 millilitres of alcohol per 100 millilitres of urine, contrary to s. 4(3)(a) & 5 of the Road Traffic Act, 2010.'

3

The learned judge heard the evidence in the case on 9th February, 2017. Following legal argument a Case Stated was drafted and the matter was adjourned to await the judgment of this court. It is clear from the Case Stated that a great deal of the evidence is not in issue. Garda Doherty gave evidence on behalf of the prosecution as to the driving of the accused on the morning in question, the formation of his opinion that the accused was intoxicated to such an extent as to be incapable having proper control of her vehicle in a public place and her subsequent arrest and conveyance to Shannon Garda station. He also gave evidence of the designation and arrival of the doctor under the Act, the introduction of the accused to the doctor and vice versa. Garda Doherty invoked s. 12(1)(b) of the Road Traffic Act, 2010 requiring the accused either to permit the designated doctor to take from her a specimen of her blood or at her option to provide for the designated doctor a specimen of her urine.

4

The Case Stated continues:

'Evidence was then given by Garda Doherty that he handed a sealed Urine Kit to the designated Doctor, that the designated Doctor opened the kit, removed the jug and gave the jug to the accused. Garda Doherty then said that the accused provided the sample supervised by Garda Hanley, the member in charge, and a female member of An Garda Síochána. Garda Hanley was also called to give evidence. She gave evidence in relation to the discharge of her duties as Member in Charge and nothing is in dispute in that regard. She also gave evidence that Garda Doherty asked her to supervise the provision by the accused woman of the provision by her of the urine sample. Garda Hanley stated that she informed the accused that she would supervise her, that the accused went into 'the cubicle' (toilet) with the jug and that she stood at the door. Garda Hanley added that she observed the accused providing the sample. She added that the accused then came out of the cubicle with the jug and handed it to the designated doctor. Garda Hanley added that she left the Doctor's Room at that stage.

"s. 12(1)(b)(ii) of the Road Traffic Act, 2010 requires that a detained person at their

option provide for the designated doctor a specimen of their urine. The designation of

the doctor and the exercise by the detained person of the option to provide a urine

specimen creates a particular professional relationship between the designated doctor

and the detained person. By virtue of the statutory basis of this professional

relationship, and the statutory obligations placed on the designated doctor, it is not

open to the designated doctor to abrogate those statutory duties and delegate them to a

third party."

The Prosecutor (Inspector TA Kennedy) contended that the reason(s) why a Garda is required to supervise the taking of the sample is to ensure that there is no contamination of the sample and that this is a policing function not a medical one.'

5

The learned judge then set out his ruling in respect of the role of the designated doctor as follows:

'6. Section 12 (1) and S. 15 of the Road Traffic Act, 2010 specify in related to blood/alcohol testing particular functions of the investigating Garda and the designated doctor. In this case I query the manner of the 'provision' of the sample. Is it in order, as I see (it), for the designated doctor to abrogate his statutory responsibility in relation to the direct and immediate provision by an accused person of a urine sample, and allow that sample be provided by the accused person in the immediate presence of a supervising Garda, but not in the sight of the designated doctor? I expressed the view that the correct interpretation of s. 12(1)(b) and s. 15, in relation to the statutory function of the designated doctor, in relation to the provision by an accused person of a urine sample, is that the sample be provided directly to the designated doctor.'

Arising from that ruling the learned judge seeks the guidance of this court as to:

'...whether I am correct in law as to my interpretation of the aforementioned statutory provisions? If I am, am I correct in dismissing the prosecution case?

Relevant statutory provisions
6

The relevant statutory provisions are s. 12 and 15 of the Road Traffic Act, 2010.

Section 12 provides:

'12. -(1) Where a person is arrested under section 4 (8), 5 (10), 6 (4), 9 (4), 10 (7)

or 11 (5) of this Act ... a member of the Garda Síochána may, at a Garda Síochána station, do either or both of the following—

(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his or her breath and may indicate the manner in which he or she is to comply...

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