DPP v Gerard Kennedy
| Jurisdiction | Ireland |
| Judge | Mr. Justice McMahon |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] IEHC 361 |
| Judgment citation (vLex) | [2009] 7 JIC 1702 |
| Court | High Court |
| Date | 17 July 2009 |
[2009] IEHC 361
THE HIGH COURT
BETWEEN
AND
ROAD TRAFFIC ACT 1961 S49(2)
ROAD TRAFFIC ACT 1961 S49(6)(A)
ROAD TRAFFIC ACT 1994 S10
ROAD TRAFFIC ACT 2006 S18
ROAD TRAFFIC ACT 1961 S49(8)
CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987
ROAD TRAFFIC ACT 1994 S18(1)
ROAD TRAFFIC ACT 1994 S18(2)
ROAD TRAFFIC ACT 1994 S18
DPP v KEMMY 1980 IR 160
DPP v FANAGAN UNREP DENHAM 18.12.1991 1998/15/5477
ROAD TRAFFIC ACT 1994 (PART III) REGS 1994 SI 351/1994 REG 3
ROAD TRAFFIC ACT 1994 S21(2)
DPP v SOMERS 1999 1 IR 115 1998/16/611
DPP v O'NEILL UNREP SUPREME 30.7.1984 1984/6/1983
DPP v MCPARTLAND 1983 ILRM 411 1983/1/283
DPP (O'REILLY) v BARNES 2005 4 IR 176 2005/18/3786 2005 IEHC 245
ROAD TRAFFIC ACT 1994 S17
RUTTLEDGE v DISTRICT JUDGE CLYNE UNREP DUNNE 7.4.2006 2006/50/10720 2006 IEHC 146
DPP v FREEMAN UNREP MACMENAMIN 21.4.2009 2009 IEHC 179
DPP v KEOGH UNREP MURPHY 9.2.2004 (EX TEMPORE)
CRIMINAL LAW
Road traffic offence
Drink driving - Blood sample - Mandatory provision - Whether statutory provision complied with - Whether sufficient compliance with Act - Legal effect of error made by doctor in completing statutory form - Whether failure to complete form accurately fatal to prosecution - Minor or technical error - Prejudice to accused - Technical slip - Whether error mislead or confused or cause prejudice or injustice to accused - Whether any breach of statutory provision - DPP v Kemmy [1980] IR 160, DPP v Fanagan (Unrep, HC, Denham J, 18/12/1991), DPP v Somers [1999] IR 115, DPP v O'Neill (Unrep, SC, 30/7/1984), DPP v McPartland [1983] ILRM 411, DPP (O'Reilly) v Barnes [2005] IEHC 245, [2005] 4 IR 176, Ruttledge v Judge Clyne [2006] IEHC 146, (Unrep, HC, Dunne J, 7/4/2006), DPP v Keogh (Unrep, Murphy J, 9/2/2004) considered; DPP v Freeman [2009] IEHC 179, (Unrep, MacMenamin J, 21/4/2009) distinguished - Road Traffic Act 1994 (Part III) Regulations 1994 (SI 351/1994), reg 3 - Road Traffic Act 1961 (No 24), ss 6, 18 & 49(2) - Case stated answered that provisions complied with (2009/608SS - McMahon J - 17/7/2009) [2009] IEHC 361
DPP v Kennedy
Facts: This case stated arose from the prosecution of the accused for the offence of driving a mechanically propelled vehicle in a public place with an excess of alcohol in his blood contrary to s. 49(2) 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. 18 of the Road Traffic Act, 2006. The essential facts were that both samples of the accused's blood were in the doctor's hands when Garda Murphy gave the accused the option of retaining one of the containers. Furthermore, the doctor handed one of the containers to the accused but in the form completed under s. 18 of the Act it stated, 'I gave both containers to a member of An Garda Siochana'. It was submitted on behalf of the accused that there was not strict compliance with s. 18(2) of the Act and that the Garda did not 'offer' one of the samples to the accused and in fact it was the doctor who made that offer. It was further submitted that the form completed by the doctor mandated by s. 18(1) of the Act and S.I. No. 351/1994 - Road Traffic Act 1994 (Part III) Regulations 1994, did not reflect the true position as the doctor did not give both containers to the Garda. The question posed for determination by the District Court Judge was as follows: "On the basis of the evidence in this case was there sufficient compliance with Section 18(2) of the Road Traffic Act, 1994?"
Held by McMahon J. in favour of the appellant: That the Garda did comply with the provisions of s. 18(2) by giving the accused the option to retain one of the containers. The word retain necessarily involved a taking by the accused in that context. It was not essential that he use the word 'offer' in order to comply with s. 18(2), or that he had the container in his hand at the time of the offer. The offer was no less an offer simply because at that time the containers were in the Doctor's hands. S. 18(1) of the Act did not mandate that the doctor handed the specimens to the Garda. That requirement was only found in the form to be signed by the doctor as per the First Schedule of the Regulations. Once the doctor used the proper form he had complied with his duty under the Regulations. The only repercussion of the error made by the doctor was that the s. 18 form lost its evidentiary status under s. 21(2) of the Act. The error was not fatal to the prosecution case and did not result in any prejudice to the accused in this case. Consequently, the answer to the question posed by the District Court Judge was : Yes.
Reporter: L.O'S.
JUDGMENT of Mr. Justice McMahon delivered on the 17th day of July, 2009
This is a Case Stated by Judge Mary C. Devins of the District Court on a point of law to obtain the opinion of the High Court for determination in the above proceedings.
At Westport on 19 th February, 2009, Mr. Gerard Kennedy, the accused/respondent herein (hereinafter referred to as "the accused"), appeared before the learned trial judge charged with driving a mechanically propelled vehicle in a public place with an excess of alcohol in his blood contrary to s. 49(2) 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. 18 of the Road Traffic Act 2006.
The relevant facts as agreed and found by her were set out (in part) by the learned judge as follows:
At 3.50am on the 5 th July, 2008, Garda Brian Murphy, Westport Garda Station accompanied by Garda Siobhan McGowan were performing a routine patrol in Knockrooskey, Westport a public place.
While passing Knockrooskey National [School] Garda Murphy observed a vehicle, [driving]... in a very dangerous manner...[ and when he provided a breath specimen he tested positive]
Garda Murphy formed the opinion that the Accused had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place and informed the Accused of his opinion......
Garda Murphy arrested the Accused under Section 49(8) of the Road Traffic Act, 1961/2006....The Accused was then conveyed to Westport Garda Station. ...[where the accused was processed in compliance]... with the provisions of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987....
At 4.22am Dr. Wilk arrived at the Garda Station. Dr. Wilk, Garda Murphy and the Accused went to the Doctor's Room at Westport Garda Station. Garda Murphy introduced Dr. Wilk to the Accused.
In the presence of Dr. Wilk, Garda Murphy..[.required the Accused ... to permit Dr. Wilk to take from [him] a sample of[his] blood, or at [his] option to provide Dr. Wilk with a specimen of [his] urine. ...
The Accused opted to provide a sample of Blood. At 4.27am Dr. Wilk took a sample of Blood from the Accused...and divided it into two containers. Garda Murphy handed the pink form to the Accused and explained to him that the specimen of Blood provided by him had been divided by Dr. Wilk into two parts and placed by him into two sealed containers.
Garda Murphy gave the accused the option to retain one of the containers, and informed him if he chose to retain one of the containers, the remaining container would be sent to the Medical Bureau of Road Safety and if he declined to retain one, both containers would be sent to the Medical Bureau of Road Safety. The accused chose to retain one of the containers.
Garda Murphy went on to say that Dr. Wilk handed one of the containers to the accused and that he then placed the remaining sealed container in the box and sealed the box...The box was handed to Garda Murphy by Dr. Wilk...
Garda Murphy placed the sealed box in his personal locker which was secured, where it remained until Monday, 7 th July, 2008 when Garda Murphy posted the sealed box by registered post to the Medical Bureau of Road Safety.
On the 17 th July, 2008, Garda Murphy received a certificate of analysis from the Medical Bureau of Road Safety.
Garda Murphy stated that the result of the analysis showed that the blood specimen of the accused contained a concentration of 197 milligrammes of alcohol per 100 millilitres of Blood. The Medical Bureau of Road Safety Certificate number is 083033sc.
The Certificate completed by the Doctor (Annex 2), together with the certificate of analysis from the Medical Bureau of Road Safety (Annex 3) and Certificate of Postage (Annex 4) were submitted in evidence.
This concluded the prosecution case.
Garda Murphy was then cross examined by Mr. Durcan on behalf of the Accused.
In particular he was cross examined on what took place in the doctor's room at Westport Garda Station following the taking of the specimen by Dr. Wilk and compliance with the doctor with Section 18(1) of the Road Traffic Act 1961/2006.
Mr. Durcan for the Accused requested to know what took place in relation to the offering of a specimen to the Accused. Garda Murphy informed the Court that he gave the option to the accused to retain one of the samples and further informed him if he chose to retain one of the samples, the remaining sample would be forwarded to the Medical Bureau of Road Safety and that if he declined to...
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