DPP v McGuigan

JurisdictionIreland
JudgeMS. JUSTICE HYLAND
Judgment Date06 February 2020
Neutral Citation[2020] IEHC 58
Docket Number[RECORD NO. 2019/117 SS]
CourtHigh Court
Date06 February 2020

IN THE MATTER OF SECTION 52 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
(AT THE SUIT OF GARDA MICHAEL O'SHAUGHNESSY)
PROSECUTOR
AND
KIAN MCGUIGAN
DEFENDANT

[2020] IEHC 58

Hyland J.

[RECORD NO. 2019/117 SS]

THE HIGH COURT

Question of law – Road traffic offence – Consultative case stated – Trial judge seeking to refer a consultative case stated for the opinion of the High Court – Whether there was an onus on the prosecution to give positive evidence of the calibration of the breath test device when establishing the formation of the opinion

Facts: The defendant, Mr McGuigan, was charged inter alia, with an offence contrary to s. 4(3)(a) & 5 of the Road Traffic Act 2010. He pleaded not guilty to the charge. During the hearing of the case in Cavan District Court on 8 February 2018, an issue arose as to the reasonableness or otherwise of the opinion formed by Garda O’Shaughnessy prior to arresting the defendant for an offence under s. 4 of the Road Traffic Act 1961, as amended, and following the application of a road side breath screening test of the defendant pursuant to the provisions of s. 9 of the 2010 Act, as amended. On 22 January 2018, the trial Judge referred a consultative case stated pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961 for the opinion of the High Court. The question of law referred for determination was as follows: “Am I entitled as a trial Judge to determine that I was not satisfied that a reasonable opinion was formed by Garda O’Shaughnessy to justify the arrest of the Accused for an offence under s. 4(1), (2), (3) or (4) of the Road Traffic Act 2010, as amended, following a failed preliminary breath test on the Accused where the evidence failed to disclose that the device had been calibrated to produce a pass/fail reading commensurate with the category of driving licence of the Accused where the test was a material and/or determining factor in the formation of the opinion?”

Held by the Court that to answer “yes” to the question referred to the Court would be contrary to the line of case law establishing what is required for the formation of an opinion; that case law, culminating in the Court of Appeal decision in DPP v Keenan McGovern [2019] IECA 293, made it clear that if a Garda states he or she has formed the requisite opinion, the accused has been represented by a competent legal practitioner and the validity of the opinion has not been challenged, then the evidence of the Garda is sufficient. The Court held that to add an additional obligation i.e. to exclude the hypothesis that the device was incorrectly calibrated, would expand the test identified. The Court held that the defence would always have the option of cross examining the Garda on the question of the calibration and so could always exclude – or not as the case may be – the possibility that the device was incorrectly calibrated and there was accordingly no risk of injustice to the accused in that respect. The Court therefore concluded that there was no onus on the prosecution to give positive evidence of the calibration of the device when establishing the formation of the opinion.

The Court answered the question posed by the District Judge as follows: “No”.

Consultative case stated.

JUDGMENT OF MS. JUSTICE HYLAND DELIVERED 6TH FEBRUARY 2020
Introduction
1

On 22 January 2018, Judge Denis McLoughlin referred a consultative case stated pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961 for the opinion of the High Court. The question of law referred for determination was as follows:

Am I entitled as a trial Judge to determine that I was not satisfied that a reasonable opinion was formed by Garda O'Shaughnessy to justify the arrest of the Accused for an offence under s.4(1),(2),( 3) or (4) of the Road Traffic Act 2010, as amended, following a failed preliminary breath test on the Accused where the evidence failed to disclose that the device had been calibrated to produce a pass/fail reading commensurate with the category of driving licence of the Accused where the test was a material and/or determining factor in the formation of the opinion?

2

The facts are as set out in the case stated. In summary the Defendant was charged inter alia, with an offence contrary to s. 4(3)(a) & 5 of the Road Traffic Act 2010. It is alleged that on 18 February 2017 at Cathedral Road, Cavan, Co. Cavan, the Defendant drove a mechanically propelled vehicle while there was present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his urine exceeded a concentration of 67 milligrammes of alcohol per 100 millilitres of urine. A copy of the charge sheet alleging the offences is appended to the Case stated at Appendix A.

3

The accused pleaded not guilty to the charge. During the hearing of the case in Cavan District Court on 8 February 2018, an issue arose as to the reasonableness or otherwise of the opinion formed by Garda O'Shaughnessy prior to arresting the accused for an offence under section 4 of the Road Traffic Act 1961, as amended, and following the application of a road side breath screening test of the accused pursuant to the provisions of section 9 of the Road Traffic Act 2010, as amended. At the end of the hearing Judge McLoughlin requested written submissions and having considered same he determined he wished to state a Consultative Case for the opinion of the High Court.

4

For completeness, it should be noted that the Defendant is charged with two further offences arising out of the same set of facts that are not the subject of the Case Stated.

Operation of Dragër Alcotest
5

The case concerns the application of a breath test using a device known as the Dragër Alcotest 6510. This device can be set at two levels. The first level is for “specified drivers”, and it records a failed reading if the concentration of alcohol in the breath is in excess of 9 micrograms. Specified drivers are defined in the definition section of the Road Traffic Act 2010 as amended, which includes learner drivers, holders of a licence licensing the holder to drive a vehicle within a period of two years from the date of issue, taxi drivers and persons not holding a driving licence.

6

The second and alternative setting of the device is for all other drivers (whom I will describe in this Judgment as non-specified drivers) and records a failed reading if the concentration of alcohol on breath is in excess of 22 micrograms.

Determinations of Fact
7

At Section E of the Case Stated, Judge McLoughlin sets out his determinations of fact as follows:

“I. I concluded that, notwithstanding numerous opportunities in examination and cross examination of Garda O'Shaughnessy, no evidence had been given that the Dragër Aloctest 6510 device had been calibrated to the appropriate level to determine on a screening basis that the concentration of alcohol in the Accused's breath exceeded a concentration which was not permissible for the holder of a full driving licence, such as the Accused.

II. I was not satisfied to simply assume that the device had been set to the appropriate calibration levels in the absence of such evidence.

III. I was satisfied that the failed breath test formed a material and significant element leading to the formation of Garda O'Shaughnessy's opinion leading to the arrest of the Accused.

IV. I was not satisfied that Garda O'Shaughnessy would necessarily have proceeded to arrest the Accused were it not for the failed breath test.”

Preliminary Issue
8

By way of a preliminary issue, Counsel for the prosecutor, Mr. Clarke BL, asserted that the facts as found by Judge McLoughlin were incorrect. He asked that I treat the material facts as those appearing on the transcript of the hearing, being Appendix D to the Case Stated and that I depart from matters specifically identified as determinations of fact in the Case Stated.

9

Both parties agreed that the law in respect of findings of fact by a trial judge in a case stated is as identified by Mr. Walsh in his book, Walsh on Criminal Procedure, 2nd edition, Round Hall, to the effect that “The general principle is that the District Court judge's findings of fact underpinning the case stated are conclusive, unless it appears that there is no evidence to support them”.

10

I have set out in full the determinations of facts at issue above.

11

Both Counsel agree there is an inaccuracy in the finding at paragraph 1, though it is said to be a minor one by Counsel for the accused, Mr. Dully BL. In respect of the remaining three paragraphs, Mr. Dully says they are either correct findings of fact or permitted inferences from the facts by the trial judge.

12

Having read the transcript and heard the submissions of both parties on this point, I consider that the meaning of paragraph 1 is somewhat ambiguous, insofar as the trial judge concludes that notwithstanding numerous opportunities in examination and cross examination of Garda O'Shaughnessy, no evidence had been given that the Dragër Alcotest device had been...

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1 cases
  • Director of Public Prosecutions v Flanagan
    • Ireland
    • High Court
    • 17 November 2023
    ...a breath test or a material misunderstanding as to the significance of its results. Reliance in this regard was placed on DPP v Mcguigan [2020] IEHC 58 (Hyland J.) where it was held (para. 34): “In this case, although the defence cross examined Garda O'Shaughnessy, they did not ask about th......

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