DPP v Ennis, [2011] IESC 46 (2011)

Docket Number:201/07
Judge:Hardiman J.
 
FREE EXCERPT

THE SUPREME COURT

Murray J. 201/2007

Hardiman J.

Macken J.

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947 Between:THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA ELAINE ROWAN)

Prosecutorand

FRANK ENNIS

Accused

JUDGMENT of Mr. Justice Hardiman delivered the 6

th

day of December, 2011.

On a date in 2007, not unfortunately readily legible in the documentation before this Court, His Honour Judge Terence O’Sullivan stated a case for the opinion of this Court in relation to certain points of law which will be set out below.

Judge O’Sullivan was hearing appeals from the District Court and there came before him the appeal of the defendant, Frank Ennis, from his conviction on the 14th February, 2006, for an offence contrary to s.49(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act, 1994 and as amended by s.23 of the Road Traffic Act, 2002.

In the Circuit Court, according to the case stated and signed by the learned Circuit Judge, the evidence on the hearing of the appeal followed the familiar pattern of evidence in breath/alcohol cases. That is to say, the evidence was not directed at establishing that the defendant was unfit to drive a mechanically propelled vehicle by reason of drunkenness, but rather that he did in fact drive a car in a public place “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 thirty-five micrograms per hundred millilitres of breath”.

Accordingly, the proofs required of the prosecution were: that the accused was driving a car in a public place at a particular time; that he had been lawfully arrested under a relevant section of the Road Traffic Acts, had been brought to a garda station; that a lawful demand to provide a specimen of his breath had been made of him pursuant to s.13 of the Road Traffic Act, 1994; that the specimen was duly taken from him within the relevant time; and that the machine used to take the specimen had produced a “duly completed statement” taken in accordance with the Road Traffic Act, 1994 (s.17) Regulations, 1999 and that this “duly completed statement” indicates a concentration of alcohol in the breath greater than the permitted level. Proof of this latter matter may be adduced by means of a “statement” by virtue of the provisions of s.21 of the Road Traffic Act, 1994. It is convenient to set out the provisions of s.21(1) at this stage:

“A duly completed statement purporting to have been supplied under s.17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961-1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Member of the Garda Síochána concerned with the requirements imposed on him by or under this part prior to and in connection with the supply by him pursuant to s.17(2) of such statement.” (Emphasis added)

The effect of this is that the concentration of alcohol in the defendant’s breath may be proved by a “duly completed statement” produced by the machine which conducts the analysis and permits the inputting of information in...

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