DPP v McDonagh

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan,Denham J.
• Judgment Date: 16 October 2008
• Neutral Citation: [2008] IESC 57
• Date: 16 October 2008
• Court: Supreme Court
• Docket Number: [S.C. No. 173 of 2006]

[2008] IESC 57

THE SUPREME COURT

Denham J.

Macken J.

Finnegan J.

[Appeal No: 173/2006]

Record No. 173/2006

DPP v McDonagh

Between/

The Director of Public Prosecutions

Prosecutor

and

Frank McDonagh

Accused

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MARTHA CLEARY)

ROAD TRAFFIC ACT 1994 S13(1)(a)

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1994 S17(4)

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S17(1)

DPP v MOOREHOUSE 2006 1 IR 421

DPP v CURRY 2002 3 IR 131

ROAD TRAFFIC ACT 1994 S21(1)

DPP v MCGARRIGLE 1996 1 ILRM 271

COURTS OF JUSTICE ACT 1947 S16

ROAD TRAFFIC ACT 1961 S60(a)

ROAD TRAFFIC ACT 1994 S3(1)

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

ROAD TRAFFIC ACT 1972 S8 (UK)

TRANSPORT ACT 1981 S8 (UK)

HOWARD v HALLETT 1984 RTR 353

SCULLY v DPP 2005 1 IR 242

B v DPP 1997 3 IR 140

COLMAN, DPP v MCNEILL 1999 1 IR 91

R v SANG 1980 AC 402

ROAD TRAFFIC ACT 1994 S13(1)

MCGONNELL & ORS v AG & DPP UNREP SUPREME 28.11.2006 2006/35/7507

ROAD TRAFFIC ACT 1994 S13(3)

ROAD TRAFFIC ACT 1994 S13(1)(b)

ROAD TRAFFIC ACT 1961 S50(4)

CRIMINAL LAW

Road traffic

Drunk driving - Requirement to give two specimens of breath - One specimen given but test rendered incomplete - Two further specimens given - Whether certificate based on second and third specimens admissible - Whether more than one requirement made - Whether permissible to seek two further specimens after one specimen already given in incomplete test - Penal statute - Interpretation - DPP v McGarrigle [1996] 1 ILRM 271 and DPP v Moorehouse [2006] IESC 52, [2006] 1 IR 421 applied; Howard v Hallett [1984] RTR 353 approved - Road Traffic Act 1994 (Section 17) Regulations 1999 (SI 326/1999), reg 3 - Road Traffic Act 1994 (No 7), ss 3, 13, 17, 21 and 23 - Answered in favour of accused (173/2006 - SC - 16/10/2008) [2008] IESC 57

DPP v McDonagh

Facts: This was a consultative case stated from the Circuit Court. Section 13(1)(a) of the Road Traffic Act 1994 required a person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, two specimens of his breath. The appellant first attempted to provide breath specimens but the test was incomplete. On the second attempt he provided one specimen but the test was returned incomplete. On the third attempt, he succeeded in giving two specimens. The opinion of the Court was sought on whether the Circuit Court was entitled to hold that there was no bar on a member of An Garda Síochána making a requirement under s. 13(1)(a) of the Road Traffic Act 1994 of an arrested person to provide two specimens of their breath, notwithstanding the provision by that arrested person of one incomplete breath specimen within a previous incomplete test result. The appellant submitted that there was no power conferred on a member of An Garda Síochána to require a person to provide a third specimen.

Held by the Supreme Court (Denham, Macken and Finnegan JJ) in answering the questions posed in the negative, that the right to due process required a fair system. The machine only issued the s. 17 certificate on foot of two samples from the same attempt. A system which could ignore a lower sample in favour of two subsequent higher samples was not fair. The first attempt failed to give any sample, and the second attempt was incomplete as only one specimen was given. In such circumstance, there could not be a third attempt if only the specimens on the third attempt were the basis for the certificate.

Reporter: R.W.

1 16th day of October, 2008 by Denham J.

Denham J.

2 Judgments delivered by Denham J.& Finnegan J. MacKen J. agreed with both

1. Case Stated

3 This is a consultative case stated from Her Honour Judge Doirbhile Flanagan, Judge of the Circuit Court, of the Dublin Circuit, dated the 28 ^th April, 2006, seeking the determination of the Court on two questions.

4 2. The opinion of the Court is sought on the following: -

5 (i) On the evidence adduced am I entitled to hold that pursuant to section 13(1)(a) of the Road Traffic Act, 1994, there is no bar on a member of An Garda Síochána making a requirement under section 13(1)(a) of the Road Traffic Act, 1994 of an arrested person to provide two specimens of their breath, notwithstanding the provision by that arrested person of one incomplete breath specimen within a previous incomplete test result;

6 (ii) Whether, in the circumstances of this case, the section 17 Certificate was admissible in evidence against the accused.

7 3. The facts proved, or admitted, or agreed, and as found by the learned trial judge, were as follows:-

8 i "(a) (i) Garda Martha Cleary was a member of An Garda Síochána, stationed at Dun Laoghaire Garda station. On the 9 ^th February 2002, she took up duty at 14.00p.m. working the 14.00p.m.-22.00 p.m. shift. She was an observer in the official patrol car accompanied by Garda Mark Russell. At approximately 20.30 p.m. as a result of a call, she was made aware that a motor vehicle, registration number 02 D 5657 was allegedly being driven in a dangerous manner. She observed the vehicle 02 D 5657 on Coliemore Road, Dalkey, which is a public place, driving slowly in a bid to come to a halt on Coliemore Road. The vehicle came to a halt in the centre of the road. She spoke to the driver who gave his name and address as Frank McDonagh, 7, Avondale Road, Killiney, County Dublin and a date of birth of the 5 ^th of February 1957.

9 (ii) Garda Cleary stated that, on speaking to the driver, she noticed a strong odour of intoxicating liquor coming from Mr McDonagh whose eyes were also bloodshot. She stated that he appeared to be slumped over in a drowsy manner. His radio was also switched on to its maximum volume and she asked Mr McDonagh to turn off the radio, which he did. She asked Mr McDonagh where he was coming from and his reply was that he had driven from the Forty Foot Bar in Dun Laoghaire. She asked Mr McDonagh whether he had been drinking, he replied "red wine with his friend";

10 (iii) Garda Martha Cleary stated that she formed the opinion that Frank McDonagh was incapable of having proper control of a mechanically propelled vehicle in a public place due to the consumption of an intoxicant and had subsequently committed an offence, contrary to Section 49(1), (2), ( 3) or (4) of the Road Traffic Act, 1961/ 1994. She stated that she informed Mr McDonagh of her opinion. Garda Martha Cleary arrested Mr McDonagh at 21.00 p.m. on the 9 ^th of February 2002 pursuant to the provisions of Section 49(8) of the Road Traffic Act, 1961 in the presence of Garda Mark Russell for an offence contrary to Section 49(1), (2), ( 3) or (4) of the Road Traffic Act, 1961/ 1994. She cautioned Mr McDonagh as follows:-

"You are not obliged to say anything unless you wish to do so, but whatever you do say, will be taken down in writing and may be given in evidence."

11 Mr McDonagh made no reply after caution. She then explained, in ordinary language to Mr McDonagh, that she was arresting him for drunken driving.

12 (iv) Garda Martha Cleary then conveyed Mr McDonagh to Dun Laoghaire Garda Station along with Garda Mark Russell where they arrived at 21.15 p.m. She introduced Frank McDonagh to the Member in Charge, Garda John Cashman and was present when Mr McDonagh's details were entered into the custody record and when he was handed Form C72S, Notice of Rights.

13 (v) She stated that at 21.20 p.m. she took Frank McDonagh to an interview room for the purpose of carrying out an evidential breath test. In the interview room, she explained to Mr McDonagh that he was to undergo a period of observation for 20 minutes which was for the purpose of the evidential breath test. She stated that during this time Mr McDonagh consumed nil by mouth. She explained that if a person consumed something during this time, it may effect the operation of the apparatus which was a machine designed to conduct a breath test.

14 ii (vi)Garda Martha Cleary later informed Mr McDonagh that they were going to move from the interview room to the doctor's room for the purpose of conducting the evidential breath test. She stated that Mr McDonagh was under the influence of an intoxicant and it took her some minutes to get him to understand that they had to move from one room to another. At 21.50 p.m. she took Mr McDonagh to the doctor's room for the purpose of conducting an evidential breath test along with student Garda John Hubbard who was present with Mr McDonagh's consent.

15 iii (vii)Garda Cleary entered Mr McDonagh's details into the intoxilyzer apparatus. She noted the temperature and humidity as 23° and 63% respectively. At approximately 21.47 p.m. she made a requirement of Mr McDonagh, having informed him that she was of the opinion that he had consumed an intoxicant. She made a requirement under Section 13(1)(a) of the Road Traffic Act, 1994 for Mr McDonagh to provide two specimens of his breath by exhaling into the apparatus designed for determining the concentration of alcohol in the breath. She stated that a failure or refusal to comply with her requirement or failure or refusal to comply with her requirement in the manner outlined by her was a specific offence under Section 13(2) of the Road Traffic Act, 1994. She explained, that penalty on summary conviction would mean that he would be liable to a fine not exceeding £1, 000 or a term of imprisonment not exceeding six months or to both. She stated that she outlined to Mr McDonagh the manner in which he was to exhale, that was...