DPP v Egan

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 11 June 2010
• Neutral Citation: [2010] IEHC 233
• Court: High Court
• Docket Number: [No. 2072 S.S./2009]
• Date: 11 June 2010

[2010] IEHC 233

THE HIGH COURT

[No. 2072 S.S./2009]

DPP v Egan

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPELLANT

AND

BERNARD EGAN

RESPONDENT

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2006 S18

ROAD TRAFFIC ACT 2006 S4(4)

ROAD TRAFFIC ACT 1994 S13(1)(B)

ROAD TRAFFIC & TRANSPORT ACT 2006 S1

ROAD TRAFFIC ACT 1994 S13(3)

ROAD TRAFFIC & TRANSPORT ACT 2006 S1(B)(ii)

ROAD TRAFFIC ACT 1994 S18

DE BLACAM DRUNKEN DRIVING & THE LAW 3ED 2003

MCCARRON v JUDGE GROARKE & DPP UNREP KELLY 4.4.2000 2004/33/7688

ROAD TRAFFIC ACT 1994 S19

DPP v CROOM-CARROLL 1999 4 IR 126 2000 1 ILRM 289 1999/9/2177

ROAD TRAFFIC ACT 1994 S18(4)

WEIR v DPP (GOODMAN) UNREP O'NEILL 29.7.2008 2008/61/12687 2008 IEHC 268

MURPHY, STATE v JOHNSTON 1983 IR 235 1980/8/1503

ROAD TRAFFIC (AMDT) ACT 1978 S23(1)

ROAD TRAFFIC (AMDT) ACT 1978 S23(2)

DPP v SYRON 2001 2 IR 105 2001/8/2182

ROAD TRAFFIC ACT 1994 S21(1)

ROAD TRAFFIC ACT 1994 S17

DPP (VANCE) v DALY 2002 2 ILRM 290 2001/7/1758

ROAD TRAFFIC ACT 1994 S18(2)

DPP (BERMINGHAM) v REVILLE UNREP O CAOIMH 21.12.2000 2004/17/3877

DPP (O'BRIEN) v HOPKINS UNREP HEDIGAN 7.7.2009 2009 IEHC 337

DPP v NANGLE 1984 ILRM 171 1983/8/2278

FITZGERALD v DPP & AG 2003 3 IR 247 2003/21/4871

DPP v GREELEY 1985 ILRM 320 1984/6/1930

DPP v FREEMAN UNREP MACMENAMIN 21.4.2009 2009 IEHC 179

DPP v KEMMY 1980 IR 160 1980/5/833

CRIMINAL LAW

Road traffic offence

Evidence - Statutory procedures - Statutory presumption - Specimen container not labelled - Non compliance - Strict interpretation - Whether presumption of compliance - Whether trial judge correct in dismissing claim in absence of evidence from prosecution of compliance with provisions of statute - Whether failure to comply with statute - DPP v Croom-Carroll [1999] 4 IR 126 and DPP v Kemmy [1980] IR 160 applied; McCarron v Groarke (Unrep, Kelly J, 4/4/2000), Weir v DPP [2008] IEHC 268 (Unrep, O'Néill J, 29/7/2008), State (Murphy) v Johnston [1983] IR 235, DPP v Syron [2001] 2 IR 105, DPP v Daly (Unrep, Kelly J, 20/12/2001), DPP v Reville (Unrep, Ó Caoimh J, 21/12/2000), DPP v Hopkins [2009] IEHC 337 (Unrep, Hedigan J, 7/7/2009), DPP v Nangle [1984] ILRM 171, DPP v Noonan (Unrep, Ó Caoimh J, 16/12/2002), Fitzgerald v DPP [2003] 3 IR 247, DPP v Greeley [1985] ILRM 320 and DPP v Freeman [2009] IEHC 179 (Unrep, MacMenamin J, 21/4/2009) considered - Road Traffic Act 1994 (No 7), ss 18 & 19 - Road Traffic Act 1961 (No 24), ss 13 & 49 - Summary Jurisdiction Act 1857 (???), s 2 - Question answered in affirmative (2009/2072SS - Kearns P - 11/6/2010) [2010] IEHC 233

DPP v Egan

Facts This is an appeal by way of consultative case stated arising out of the prosecution of the accused on a charge of drunken driving. The question posed by District Judge O'Neill was as follows; "I. Having found as a fact that the prosecution failed to satisfy me that section 18 was complied with, was I correct in law dismissing the charge?" At the close of the prosecution case in the District Court, counsel for the respondent herein applied for a direction in favour of the respondent, submitting that no evidence of compliance with the procedure set forth in s. 18 of the Road Traffic Act 1994 had been adduced. He argued that there was a breach of the procedure contained in the said s. 18, in that there was a direct conflict between the details on the form completed by the designated doctor under s. 18 and the certificate issued by the MBRS pursuant to s. 19 of the Act of 1994. The doctor admitted in evidence that he failed to label and/or seal the outer container with any details relating to the accused and the MBRS certificate stated that there was no name on the container. Counsel for the respondent also referred to the case of DPP v. Croom-Carroll [1994] 4 I.R. 126.

Held by Kearns P. in refusing the appeal and answering the question in the affirmative: That the requirements of s. 18 of the Act of 1994 must be strictly complied with. The critical piece of evidence in this case was the acceptance by the Doctor that he failed to comply with the requirements of s.18 of the Act of 1994. That being so, it was clearly open to the District Judge to find, as he did, that s. 18 of the Act of 1994 had not been complied with and for that reason to dismiss the case. The learned District Judge had before him conflicting lines of evidence on some important factual issues which was sufficient to lift or remove the presumption and entitled the District Judge to find as he did.

An identical scenario arose in this case as arose in the case of DPP v. Croom-Carroll.

Reporter: L.O'S

1 JUDGMENT of Kearns P. delivered the 11th day of June, 2010

2 This is an appeal by way of consultative case stated by District Judge John O'Neill pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s.51 of the Courts (Supplemental Provisions) Act 1961 arising out of the prosecution of the accused on a charge of drunken driving contrary to s.49(3)(a) and (6)(a) of the Road Traffic Act 1961, as inserted by s.10 of the Road Traffic Act 1994 as amended by s.18 of the Road Traffic Act 2006.

FACTUAL BACKGROUND

3 The facts which led to the prosecution of the respondent are set out by District Judge O'Neill at paragraph 3 of the case stated. In summary, a mandatory alcohol testing checkpoint was set up on Whitehall Road West, Dublin, on the night of the 2 ^nd December, 2007, pursuant to an authorisation from Inspector Reynolds of Terenure Garda Station. The respondent was stopped at the checkpoint and was requested to provide a sample of his breath to be tested for alcohol, in accordance with s. 4(4) of the Road Traffic Act 2006. He complied with but failed the test and was arrested by the garda manning the checkpoint, Garda Kelly. The respondent was then conveyed to Crumlin Garda Station and a doctor, Dr. Lone, was called. When Dr. Lone arrived at the station he met with the respondent and with Garda Kelly. The respondent was told by Garda Kelly that he was being required to permit Dr. Lone to take from him a blood or urine sample, at his option, under s. 13(1)(b) of the Road Traffic Act 1994, as substituted by s.1 of the Road Traffic and Transport Act 2006. Garda Kelly indicated to him that if he failed or refused to comply with that requirement that he would be guilty of an offence under s. 13(3) of the Road Traffic Act 1994 as substituted by s.1(b)(ii) of the Road Traffic and Transport Act 2006, as amended by s. 18 of the Road Traffic Act 2006 and he outlined the penalties for this offence to him. The respondent chose to provide a specimen of urine. This sample was sent to the Medical Bureau of Road Safety ("MBRS") for testing. A summons was issued against the respondent on the 11 ^th February, 2008, in respect of offences contrary to s.49(3) and (6)(a) of the Road Traffic Act 1961, as inserted by s.10 of the Road Traffic Act 1994, as amended by s.18 of the Road Traffic Act 2006. The summons stated inter alia that the concentration of alcohol in the respondent's urine exceeded a concentration of 107 milligrammes of alcohol per 100 millilitres of urine, the legal limit.

4 The prosecution took place at District Court 54, Richmond Hospital, Dublin, on the 5 ^th March, 2009. There, the prosecutor was represented by Mr. Declan Keating, solicitor, and the accused was represented by Mr. counsel instructed by Mr. Kevin Tunney, solicitor. Garda Kelly and Dr. Lone gave evidence for the prosecution. The evidence given by Garda Kelly as to the provision by the respondent of a sample of blood or urine is set out in subparagraph (d) of paragraph 3 of the case stated as follows:-

5 a "(d) At 22.36pm, Dr Lone arrived at the station. The accused was conveyed to the doctor's room and Garda Kelly introduced him to Dr Lone. Under Section 13(1)(b), Garda Kelly informed the accused that he was now being required under Section 13 (1)(b) of the Road Traffic Act 1961-2006 (as amended) to permit Dr Lone, a designated doctor, to take from him a specimen of blood or urine, at his option. He also informed him that if he failed or refused to comply with the requirement, he would be guilty of an offence under Section 13 (3) of the Road Traffic Act 1961-2006, as amended and would be liable on summary conviction to a term of imprisonment not exceeding six months or to a fine not exceeding €5,000 or to both. The accused opted to give a sample of urine. Garda Kelly handed in the Section 18 Doctor's form as evidence to the Court. A copy of the Section 18 form, which forms part of this case stated, is attached at Annex 3. Garda Kelly said he had received the certificate from the Medical Bureau of Road Safety relating to the sample provided by the accused, certifying that the specimen on analysis contained a concentration of 351 milligrams of alcohol per 100 millilitres of urine. The Section 19 certificate from the MBRS was submitted by Garda Kelly in evidence and a copy, which forms part of this case stated, is attached at Annex 4."

6 The evidence of Dr. Lone, which was accepted by District Judge O'Neill, follows at subparagraphs (e) and (f) of paragraph 3:-

7 a "(e) … He [Dr. Lone] confirmed he was the Designated Doctor for the purposes of the Act and that he was called to the station to take a sample from the accused. He took a urine sample from the accused. The sample was divided into two parts. Each part was put into a bottle from the Medical Bureau of Road Safety (MBRS) blood kit. Dr Lone put a lid on both bottles and he put a plastic strip over the bottles. Using the...