DPP v Duffy

JurisdictionIreland
JudgeMr. Justice Quirke
Judgment Date04 June 1999
Neutral Citation[1999] IEHC 173
CourtHigh Court
Docket NumberNo. 1930 SS/1997,[1997 No. 1930 SS]
Date04 June 1999

[1999] IEHC 173

THE HIGH COURT

No. 1930 SS/1997
DPP v. DUFFY
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS)
ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR

AND

MICHAEL OLIVER DUFFY
ACCUSED

Citations:

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(6)(a)

ROAD TRAFFIC ACT 1995 S2

ROAD TRAFFIC ACT 1994 S12(1)

ROAD TRAFFIC ACT 1994 S19

ROAD TRAFFIC ACT 1994 S12(1)(a)

ROAD TRAFFIC (AMDT) ACT 1978 S12(1)

ROAD TRAFFIC ACT 1994 S4(1)

ROAD TRAFFIC ACT 1961 S49

HOBBS V HURLEY UNREP COSTELLO 10.6.1980 1980/6/1106

ROAD TRAFFIC (AMDT) ACT 1978 S12

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC (AMDT) ACT 1978 S12(2)

DPP V BRADY 1991 1 IR 337

DPP V BREHENY UNREP SUPREME 2.3.1993 1993/2/255

DPP V FANAGHAN UNREP DENHAM 18.12.1991 1998/15/5477

ROAD TRAFFIC ACT 1994 S10

Synopsis

Road Traffic

Drink driving; case stated; Garda's opinion that person has consumed intoxicating liquor prior to requiring breathing specimen; evidence of compliance with s.12(1)(a), Road Traffic Act, 1994; accused alleges that evidence must be given justifying the formation of the opinion; whether stating in evidence that the opinion was formed is sufficient to comply with s.12(1)(a); whether evidence must be led showing the reasonableness and genuineness of the opinion in order to comply with s.12(1)(a).

Held: Where it is stated in evidence that the opinion was formed, the accused has professional legal advice and this evidence is not challenged, nor are the bona fides or reasonableness of the opinion challenged, then the evidence of the garda as to the formation of his opinion is sufficient proof of compliance with the provisions of s.12(1)(a).

D.P.P. v. Duffy - High Court: Quirke J. - 04/06/1999 - [2000] 1 IR 393

While every case depended on its own merits the adequacy of evidence was usually a matter for the trial judge at the hearing of the prosecution and in the light of such circumstances. During the course of a prosecution pursuant to s.49(3) and (6)(a) of the Road Traffic Act 1961 where it was established that the accused was in charge of a mechanically propelled vehicle in a public place and where a member of An Garda Siochana stated in evidence that he had first formed the opinion that the accused had consumed intoxicating liquor, and then required the accused to provide a breath specimen pursuant to s.12(1)(a) of the Road Traffic Act 1994, where the accused was represented by a reputable, competent, professional legal practitioner and where the evidence of the member of An Garda Siochana was not challenged by or on behalf of the accused and the bona fides and reasonableness of the opinion was not placed in issue by or on behalf of the accused, then the evidence of the member of An Garda Siochana as to the formation of his opinion was sufficient proof of compliance with s.12(1)(a) of the 1994 Act. There was no additional necessity for evidence to be led by the prosecution showing that the opinion formed was reasonable in the circumstances and genuinely held. The High Court so held in answering the case stated.

1

Judgment of Mr. Justice Quirke delivered on the 4th day of June, 1999

2

This matter comes before the Court by way of a Consultative Case Stated pursuant to Section 52 of the Courts (Supplemental Provisions). Act, 1961by District Judge William Harnett, a Judge of the District Court assigned to the District Court area of Callan. District No. 22 in the County of Kilkenny.

THE FACTS
3

The material facts are not in issue and can be summarised as follows:-

4

(1) The accused came before the learned District Judge on the 12th day of February, 1997 on foot of a summons issued on the 17th day of January, 1997 alleging that the accused did on the 5th day of January, 1997 at Ballyduggan. Mullinahone in the County of Tipperary a public place drive a mechanically propelled vehicle, to wit, motorcar registered number 95 TS 975 in a public place while there was present in his body a quantity of alcohol such that within three hours after so driving the said vehicle, the concentration of alcohol in his urine exceeded a concentration of 107 milligrammes of alcohol per 100 millilitres of urine contrary to the provisions of Section 49(3) and (6)(a) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994, as amended by Section 2 of the Road Traffic Act, 1995, contrary to the form of the Statute in such case made and provided.

5

(2) Section 12(1) of the Road Traffic Act, 1994authorises a member of the Garda Síochána to require a person in charge of a mechanically propelled vehicle in a public place "...to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his breath..." provided that the Garda Siochána in seeking to exercise that authority has first formed the opinion that the person concerned "...has consumed intoxicating liquor..."

6

(3) At the hearing before the learned District Judge on the 12th day of February, 1997 at Callan District Court, Sergeant James Treacy testified on behalf of the Prosecutor in support of the charge preferred against the accused and stated in evidence that he had stopped a motor vehicle, the property of the accused at approximately 1.15 a.m. on the 5th day of January, 1997 at Ballyduggan. Mullianahone, a public place and having formed the opinion that the accused had consumed intoxicating liquor he required the accused to exhale into an apparatus for indicating the presence of alcohol in the breath which said apparatus duly indicated the presence of alcohol in the accused's breath.

7

(4) Sergeant Tracey stated that he then formed the opinion that the accused was under the influence of an intoxicant to such extent as to be incapable of having proper control of a mechanically propelled vehicle and so advised the accused whom he arrested at 1.20 a.m. Sergeant Treacy testified to the intent that he "...had some difficulty getting the accused out of his motor car but with the assistance of a colleague, the accused was eventually brought to Clonmel Garda Station arriving there at 2 a.m....".

8

(5) Subsequently the accused, in a lawful and proper fashion submitted a sample of urine to a duly authorised Medical Practitioner which, when tested, indicated a concentration of 379 milligrammes of alcohol per 100 millilitres of the urine of the accused and a certificate to that extent was duly issued by the Medical Bureau of Road Safety pursuant to the provisions of Section 19 of the Road Traffic Act, 1994and that certificate was adduced in evidence at the hearing before the learned District Judge on the 12th of February, 1997.

9

(6) At the conclusion of the case made on behalf of the Prosecutor in support of the charge preferred against the accused and before any evidence was adduced on behalf of the accused an argument was advanced on his behalf to the intent that the accused had no case to answer. It was submitted on behalf of the accused by his solicitor that whilst Sergeant Treacy had stated in evidence that before requiring the accused to submit to a breath test, he had first formed the opinion that the accused had consumed intoxicating liquor, no evidence had been adduced on behalf of the Prosecutor by Sergeant Treacy, or any other person, as to how Sergeant Tracey had formed the opinion and reached the conclusion that the accused had consumed intoxicating liquor. It was submitted on behalf of the accused that before convicting a person of an offence in contravention of the provisions of Section 49(3) and (6)(a) of the 1961 Act, as amended, it was necessary for the learned District Judge to be satisfied by way of evidence adduced on behalf of the Prosecutor, that prior to requiring the person concerned to provide a specimen of his breath pursuant to the provisions of Section 12 of the 1994 Act, the member of the Garda Síochána requiring the breath test (a) had first formed an opinion that the person concerned had consumed intoxicating liquor and (b) that there were identifiable grounds justifying that opinion.

10

(7) On behalf of the Prosecutor, it was contended that whilst the authority conferred upon a member of the Garda Síochána, by Section 12 of the 1994 Act, may only be exercised in accordance with the requirements of the Section when the Garda exercising it has first formed the...

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