DPP v Freeman

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 21 April 2009
• Neutral Citation: [2009] IEHC 179
• Court: High Court
• Date: 21 April 2009

[2009] IEHC 179

THE HIGH COURT

[No. 1438 S.S./2008]

DPP v Freeman

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/

DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR /APPELLANT

AND

LLOYD FREEMAN

ACCUSED/RESPONDENT

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S21

ROAD TRAFFIC ACT 1994 (SECTION 17) REGS 1999 SI 326/1999 REG 4

ROAD TRAFFIC ACT 1994 (SECTION 17) REGS 1999 SI 326/1999 REG 5

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1994 S13(1)(A)

DPP v KEOGH UNREP MURPHY 9.2.2004 (EX TEMPORE)

ROAD TRAFFIC ACT 1994 S21(1)

DPP v KEMMY 1980 IR 160

SUMMARY JURISDICTION ACT 1857 S3

ROAD TRAFFIC (AMDT) ACT 1978 S21

DPP v SOMERS 1999 1 IR 115 1998/16/611

DPP (O'REILLY) v BARNES 2005 4 IR 176 2005/18/3786 2005 IEHC 245

RUTTLEDGE v DISTRICT JUDGE CLYNE UNREP DUNNE 7.4.2006 2006/50/10720 2006 IEHC 146

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

ROAD TRAFFIC ACT 1994 S18(2)

DPP v GREELEY 1985 ILRM 320 1984/6/1930

ROAD TRAFFIC ACT 1961 S49(6)

DPP v COLLINS 1981 ILRM 447

DPP v GEASLEY UNREP CCA 24.3.2009 2008 IECCA 22

ROAD TRAFFIC ACT 1994 S17(4)

ROAD TRAFFIC ACT 1994 S17(3)

MAGUIRE & ORS v ARDAGH & ORS (OIREACHTAS JOINT COMMITTEE ON JUSTICE) [ABBEYLARA CASE] 2002 1 IR 385 2001/14/3995

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY PRIVILEGES & IMMUNITIES OF WITNESSES) ACT 1997 S3

COMMITTEES OF THE HOUSES OF THE OIREACHTAS (COMPELLABILITY PRIVILEGES & IMMUNITIES OF WITNESSES) ACT 1997 S3(9)

HOWARD v CMRS OF PUBLIC WORKS 1994 1 IR 101 1993/3/683

INTERPRETATION ACT 2005 S5

DPP v MOOREHOUSE 2006 1 IR 421 2006 1 ILRM 103 2005/21/4245 2005 IESC 52

ROAD TRAFFIC ACT 1994 S17(1)

ROAD TRAFFIC ACT 1994 S17(2)

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

RSC O.84

RSC O.62

CRIMINAL LAW

Road traffic offence

Drink driving - Proofs - Section 17 certificate - Due completion of statement - Statutory procedure - Whether requirements of statute satisfied - Whether guard administering test should have signed form before accused rather than afterwards - Consequences in law of adopting procedure at variance from statutory provisions - Relevant statutory provisions - Whether non-compliance entitled accused to direction of acquittal -Presumptions - Technical defect - Whether certificate inadmissible in evidence - Nature and effect of error - Nature of evidential deficit - Mandatory provisions - Whether non-compliance vitiated evidential presumption - Strict interpretation of penal statute - Stare decisis - Precedential status of prior judgment - Whether precedent contained manifest error - Whether any relevant distinctions on facts identified from precedent - DPP v Keogh (Unrep, Murphy J, 9/2/2004) followed; DPP v Kemmy [1980] IR 160; DPP v Somers [1999] 1 IR 115; DPP (O'Reilly) v Barnes [2005] IEHC 245, [2005] 4 IR 176; Ruttledge v Judge Clyne [2006] IEHC 146, (Unrep, Dunne J, 7/4/2006); McCarron v Judge Groarke (Unrep, Kelly J, 4/4/2000); People (DPP) v Greeley [1985] ILRM 320; DPP v Collins [1981] ILRM 447; DPP v Geasley [2009] IECCA 22, (Unrep, CCA, 24/3/2009); Maguire v Ardagh [2002] 1 IR 385; Howard v Commissioners of Public Works [1994] 1 IR 101; DPP v Moorehouse [2005] IESC 52, [2006] 1 IR 421 and DPP (Bermingham) v Reville (Unrep, O'Caoimh J, 21/12/2000) considered - Road Traffic Act 1994 (No 7), ss 13, 17, 21 and 24 - Road Traffic Act 1994 (Section 17) Regulations 1999 (SI 326/1999) regs 4 and 5 - Road Traffic Act 1961 (No 24), ss 6(a) and 49 - Interpretation Act 2005 (No 23), s 5 - Case stated answered in affirmative (2008/1438SS - MacMenamin J - 21/4/2009) [2009] IEHC 179

Director of Public Prosecutions v Freeman

Facts: section 17 of the Road Traffic Act 1994 provides, inter alia, as follows: “where, consequent on a requirement under section 13(1)(a) of him, a person provides… specimens of his breath and the apparatus referred to in that section determines the concentration of alcohol…the specimen…shall be taken into account for the purposes of section 49…of the principal Act…(2) where the apparatus….determines that…the person may have contravened section 49…he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus. (3) On receipt of the statements aforesaid, the person shall on being requested to do so by the member aforesaid (a) forthwith acknowledge such receipt by placing his signature on each statement and (b) thereupon return either of the statements to the member.” The member is further required, by regulation 5 of the Road Traffic Act 1994 (Section 17) Regulations 1999 to sign the said statements. Pursuant to section 21(1) of the Act of 1994, such a duly completed certificate shall be evidence that the accused was over the limit delimited under section 49. On a trial of the accused for drink driving, the District Court stated a case to the High Court at the request of the prosecutor as to whether the court was correct in holding that the section 17 certificate was not duly completed as the member had requested the accused to sign it prior to him signing it and thereby dismissing the charge. The accused contended that as the form was not “duly completed” it did not carry with it the presumptions which arose under section 21(1) of the Act of 1994.

Held by Mr Justice MacMenamin in answering the case stated in the affirmative that where there had been a clear failure to comply with a mandatory requirement in a penal statute which according to the statute had to be followed to produce a “duly completed” certificate which could be used as an evidential presumption, that certificate would not amount to evidence. A form not signed by the garda prior to the accused was not “duly completed” and therefore the statutory presumption could not apply to it. Once signed by the garda, it is “duly completed” and must then by signed by the recipient.

A court should lean against the creation or extension of penal liability by extension or a purposive approach to statutory interpretation.

DPP v Keogh (Unreported, High Court, Murphy J., 9th February, 2004) followed.

DPP v Moorehouse [2006] 1 IR 421 distinguished.

Reporter: P.C.

1 Mr. Justice John MacMenamin dated 21st day of April, 2009.

Introduction

2 1. On its face, this appeal by way of case stated simply raises issues as to the interpretation of s. 17 of the Road Traffic Act 1994. This provision relates to the statutory procedure to be adopted for the signing of a certificate following provision of a breath specimen, which certificate may be used in evidence in a prosecution under s. 13 of the Road Traffic Act 1994.

3 2. In one sense it might be said the points at issue here are purely "technical". They relate simply to what constitutes a "duly completed" certificate under the section; and whether the garda administering the test to the accused, Garda Paul Dempsey, should have signed the form before the accused, Lloyd Freeman, rather than, as happened here, afterwards. A further issue is as to the consequences in law of adopting a procedure prima facie at variance from the statutory provisions engaged. But this judgment also must discuss and consider the precedential status of a prior judgment of this court prima facie on all fours with this case; whether there are other authorities which should be applied by way of distinction from that authority; and the extent to which, if at all, a discretion of this court can be exercised in an appeal by way of case stated on a point of law, as opposed to a judicial review which is a discretionary remedy.

The statutory provisions

4 3. Section 17 of the Act of 1994 provides:-

5 2 " 17.-(1) Where, consequent on a requirement under section 13 (1)(a) of him, a person provides 2 specimens of his breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen-

6 (a) in case the apparatus determines that each specimen has the same concentration of alcohol, either specimen, and

7 (b) in case the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol, shall be taken into account for the purposes of sections 49 (4) and 50 (4) of the Principal Act and the other specimen shall be disregarded.

8 (2) Where the apparatus referred to in section 13 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 49 (4) or 50 (4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.

9 (3) On receipt of the statements aforesaid, the person shall on being requested so to do by the member aforesaid-

10 (a) forthwith acknowledge such receipt by placing his signature on each statement, and

11 (b) thereupon return either of the statements to the member.

12 It is important to note the penal provisions attached to s. 17 as follows:-

13 3 "(4) A person who refuses or fails to comply with subsection (3) shall be guilty of an...