DPP v McGrath

JurisdictionIreland
Judgethe President
Judgment Date16 April 2020
Neutral Citation[2020] IECA 103
Docket Number[2019 No. 270]
CourtCourt of Appeal (Ireland)
Date16 April 2020

IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA CONOR GORN)
PROSECUTOR
AND
ANTHONY MCGRATH
DEFENDANT

[2020] IECA 103

The President

McCarthy J.

Kennedy J.

[2019 No. 270]

THE COURT OF APPEAL

CIVIL

Charge – Road Traffic Act 2010 s. 4(4)(b) and 4(5) – Case stated – Appellant seeking to contest charge – Whether, in the circumstances of the case, where the original s. 13 statement was not available, but a photocopy of that statement had been tendered in evidence by the prosecution, the evidential presumption of validity under s. 20(1) of the Road Traffic Act 2010 applied to that photocopied statement

Facts: The defendant/appellant, Mr McGrath, was charged with an offence contrary to s. 4(4)(b) and 4(5) of the Road Traffic Act 2010, the offence of driving a mechanically-propelled vehicle when there was present in his body a quantity of alcohol such that the concentration of alcohol in his breath exceeded the prescribed limit. He contested the charge. In the course of the hearing in the District Court, the prosecution sought to rely on a photocopy of a statement generated by an ‘Evidenzer’. The prosecution sought to do so in circumstances where the original certificate had apparently been mislaid. The question that arose in the District Court and caused the judge there to state a case was whether the presumption, provided for by s. 20 of the 2010 Act applied where the prosecution relied on a photocopy as opposed to the original statement. The judge of the District Court formulated the consultative case stated to the High Court in the following terms: “[i]n the circumstances of the present case, where the original s. 13 statement is not available, but a photocopy of that statement has been tendered in evidence by the prosecution, does the evidential presumption of validity under s. 20(1) of the Road Traffic Act 2010 apply to that photocopied statement?” The High Court answered the question in the affirmative and the matter came before the Court of Appeal on appeal. In the District Court, the prosecution indicated that they would be relying on s. 30 of the Criminal Evidence Act 1992 which, they contended, supported the introduction of the photocopy statement and the placing of reliance on it. In the District Court and in the High Court, in both cases unsuccessfully, and before the Court of Appeal, it had been argued by the appellant that s. 30 of the 1992 Act has no application and, if in fact it did have any application, would not assist the prosecution in any event.

Held by the Court that, having applied the observations of O’Malley J in DPP v Avadenei [2017] IESC 77, the substance of the form produced was the information intended to be put in evidence by means of the statutory status according to the form. The Court found that all of the required information was present in this case. The Court held that the content was in no way misleading, confusing or unfair and that no right of the appellant was violated by its admission. The Court answered the question in the case stated in the affirmative.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the President delivered on the 16 th day of April 2020
1

The defendant/appellant was charged with an offence contrary to s.4(4)(b) and 4(5) of the Road Traffic Act 2010, the offence of driving a mechanically-propelled vehicle when there was present in his body a quantity of alcohol such that the concentration of alcohol in his breath exceeded the prescribed limit. The defendant/appellant contested the charge. In the course of the hearing in the District Court, the prosecution sought to rely on a photocopy of a statement generated by an ‘Evidenzer’. The prosecution sought to do so in circumstances where the original certificate had apparently been mislaid. The question that arose in the District Court and caused the judge there to state a case was whether the presumption, provided for by s. 20 of the Road Traffic Act 2010 applied where the prosecution relied on a photocopy as opposed to the original statement. The judge of the District Court formulated the consultative case stated to the High Court in the following terms:

“[i]n the circumstances of the present case, where the original s. 13 statement is not available, but a photocopy of that statement has been tendered in evidence by the prosecution, does the evidential presumption of validity under s. 20(1) of the Road Traffic Act 2010 apply to that photocopied statement?”

The High Court answered the question in the affirmative and the matter now comes before this Court on appeal.

2

In the District Court, the prosecution indicated that they would be relying on s. 30 of the Criminal Evidence Act 1992 which, they contended, supported the introduction of the photocopy statement and the placing of reliance on it. In the District Court and in the High Court, in both cases unsuccessfully, and before this Court, it has been argued by the appellant that s. 30 of the Criminal Evidence 1992 has no application and, if in fact it did have any application, would not assist the prosecution in any event.

3

Before considering the arguments in greater detail, it is convenient at this stage to refer to the main statutory provisions which appear to be in issue. The relevant sections of the Road Traffic Act 2010 provide as follows:

“4.—[…] (4) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her breath will exceed a concentration of—

(a) 22 micrograms of alcohol per 100 millilitres of breath, or

(b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.

(5) A person who contravenes this section commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or to both. […]

Provision Regarding Certain Evidence in Proceedings Under Part 2

20.—(1) A duly completed statement purporting to have been supplied under section 13 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961 to 2010 of the facts stated in it, 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 or her by or under Chapter 4 prior to and in connection with the supply by him or her under section 13 of such statement.”

The relevant provisions of the Criminal Evidence Act 1992 provide:

“Copies of Documents in Evidence

30.—(1) Where information contained in a document is admissible in evidence in criminal proceedings, the information may be given in evidence, whether or not the document is still in existence, by producing a copy of the document, or of the material part of it, authenticated in such manner as the court may approve. (2) It is immaterial for the purposes of subsection (1) how many removes there are between the copy and the original, or by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made […]”

4

The appellant contends that the appropriate starting point for consideration of the issue that arose in the District Court was to engage in an analysis of the evidential presumptions created by s. 20(1) of the Road Traffic Act 2010. It is contended that the trial judge fell into error in giving only limited consideration to this aspect of the appellant's case. It is argued that on close examination, it becomes clear that s. 20 applies only to an original s. 13 statement i.e. a statement printed out by the Evidenzer breath testing machine, duly completed by a Garda and has no application to a copy thereof.

5

It is said that further support for the interpretation contended for, that s. 20(1) applies only to a duly completed certificate generated by the breath testing machine, duly completed by a member of An Garda Síochána, and not to a photocopy, is to be found from a holistic reading of the Act. Attention is drawn to other sections of the 2010 Act which deal specifically with the option of making use of copies. Particular attention is drawn to s. 10 which deals with the establishment of mandatory alcohol testing checkpoints. Section 10(9) provides:

“(9) An authorisation or a copy expressing itself to be such authorisation shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961 to 2010 of the facts stated in it, without proof of any signature on it or that the signatory was a person entitled under subsection (2) to sign it.” (Emphasis as placed by the appellant)

Attention is also drawn to s. 81 of the 2010 Act which deals with the offence of speeding and provides for an evidential presumption in respect of records produced by an electronic or other apparatus (including a camera) capable of providing a permanent record. Section 81(2) provides inter alia:

“[in proceedings for a speeding offence] a document purporting to be, or to be a copy of, a record referred to in subsection (1)(a) […] shall be prima facie evidence in those proceedings of the indications or measurements contained in the record. It shall not be necessary to prove, as the case may be, the signature on the document or that the signatory was a member of the Garda Síochana or that the document was so issued.” (Emphasis as placed by the appellant)

6

The appellant placed and continues to place reliance on DPP v. Kemmy [1980] IR 160. There, at 164, O'Higgins CJ had observed:

...

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1 cases
  • Nolan and Others v Dildar Ltd and Others
    • Ireland
    • High Court
    • 10 January 2024
    ...Court, Simons J. held that s.30 plainly applied in such circumstances. The decision of Simons J. in that case was upheld on appeal (see [2020] IECA 103). A similar approach was taken in Northern Ireland in Public Prosecution Service v. Duddy [2009] NI 19. In that case, the respondent was ch......

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