DPP -v- Mangan, [2001] IESC 40 (2001)

Docket Number:324/98
Party Name:DPP, Mangan
Judge:Keane C.J.
 
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Keane C.J.Denham J.Geoghegan J.324/98CASE STATED PURSUANT TO THE PROVISIONS OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONSProsecutor/RespondentandSIMON MANGANAccused/Appellant JUDGMENT delivered the 6th day of April 2001 by Keane C.J.This is a Consultative Case Stated by Judge Patrick McCartan of the Circuit Court. It arises out of the prosecution of the appellant in respect of an offence alleged to have been committed by him of refusing to permit a designated doctor to take from him a specimen of his blood contrary to s. 13(3) of the Road Traffic Act, 1994 (hereafter "the 1994 Act"). The appellant was convicted in the District Court of the alleged offence and appealed to the Circuit Court.I think that it is helpful at the outset to set out the relevant statutory provisions. Section 13(1) of the 1994 Act provides that:"Where a person is arrested under s. 49 (8) or 50 (1) of the Principal Act or s. 12 (3), or where a person is arrested under s. 53(6), 106(3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following ...(b) require the person either - (i) to permit a designated doctor to take from the person a specimen of his blood, or(ii) at the option of the person, to provide for the designated doctor a specimen of his urine,and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related."Section 13(3) provides that"... A person who, following a requirement under subsection (1)(b) - (a) refuses or fails to comply with the requirement, or(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both."The only witness called on behalf of the prosecutor in the Circuit Court was Garda Christine Dowling. She gave evidence that she had been on duty on the 11th April 1996 at approximately 12.30 a.m. as an observer in a garda patrol car which was being driven at or about the Dublin Road, Swords. She observed a motor car being driven in an erratic fashion. The driver put on the flashing beacon on the patrol car and the vehicle which had been observed being driven in an erratic fashion stopped and the driver got out. Garda Dowling approached the driver who gave his name as Simon Mangan, of Borranstown, Ashbourne, Co. Meath, the appellant.Garda Dowling said that she formed the opinion that the appellant was incapable of having proper control of the motor car due to the consumption of an intoxicant, arrested him and conveyed him to Swords Garda Station. ADr. Williams was called and arrived at 12.40 a.m. When the doctor arrived, the appellant was brought to the doctor's room.Garda Dowling then said in her evidence:"At 1.05 a.m., I required the appellant pursuant to the provisions of s. 13(1)(b) of the Road Traffic Act to permit the designated doctor to take from him a specimen of his blood, or at his option, to provide the designated doctor with a specimen of his urine."She also explained that it was an offence not to comply and she explained the penalties involved.Garda Dowling said that the appellant opted to give a urine specimen and was provided with the relevant jug by the designated doctor. She said that there then followed several attempts on the part of the appellant to provide a urine specimen. On three occasions he went into the toilet area and attempted to give a specimen, but was unable to provide it. Her evidence went on as follows:"At 1.48 a.m., I then made a further requirement of the accused to provide for the designated doctor a sample of his blood and I explained the penalties to him. He refused to give a specimen."That completed the case for the prosecution.Counsel for the appellant advanced two submissions to the learned Circuit Court judge. First, he said that there was not sufficient evidence before the court that the requirement on which the prosecution relied had been made under s. 13(1)(b) of the Road Traffic Act of 1994. He pointed out that other Road Traffic Acts - those of 1961, 1968, 1973 and 1978 - contained a section 13 and the 1961 Act contained a section 13(1)(b). Counsel submitted that, having regard to the decision of this court in Director of Public Prosecutions .v. McGarrigle, decided by this court on 22nd June 1987 and reported in the form of an appendix to Brennan .v. Director of Public Prosecution, [(1996) 1 ILRM 267 at p...

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