DPP v Moore

[2006] IEHC 142

THE HIGH COURT

1179SS/2004

DPP v MOORE

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL

PROVISIONS) ACT 1961

AND

IN THE MATTER OF A CONSULTATIVE CASE STATED

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

THOMAS MOORE

RESPONDENT

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(a)

ROAD TRAFFIC ACT 1994 S10

WHELAN v KIRBY & DPP 2004 2 ILRM 1

MCGONNELL & ORS v AG & DPP UNREP MCKECHNIE 16.9.2004 2004/34/7903

CRIMINAL LAW

Road traffic offences

Drink driving - Intoxilyser - Order of District Court authorising presence of engineer on behalf of respondent at servicing and testing of intoxilyser breath testing machine - No objection raised initially to making of order - Objection subsequently on grounds of difficulty in obtaining compliance of third party servicing company - Whether District judge correct in making order -Whether District judge would be correct in proceeding to hear charge in circumstances where inspection sought but not carried out -Order correctly made (2004/1179SS -O'Neill J - 5/5/2006) [2006] IEHC 142 DPP v Moore

2004/1179SS - O'Neill [ex-tempore] - High - 5/5/2006 - 2006 20 4099 2006 IEHC 142

Facts: The applicant had sought an order compelling the prosecution to disclose documents relating to an intoxilyser machine and an order for inspection of the machine, in addition to an order authorising the presence of an engineer at the next servicing and testing of the machine. The case stated posed the question as to whether the District Judge was correct in authorising the presence of the engineer and whether it would be correct to hear the charges where no inspection was carried out.

Held by O’Neill J. that the District Judge was entitled to make the order where the prosecution had failed to raise any objections.

Reporter: E.F.

1

EXTEMPORE JUDGMENT delivered by Mr. Justice O'Neill on the 5th day of May, 2006.

2

This is a case stated pursuant to s. 52 subs. 1 of the Courts (Supplemental Provisions) Act 1981 by Judge Flann Brennan, a Judge of the District Court.

3

The background to the matter is as follows.On the 8th June, 2002, the accused was apprehended or arrested at Mell, Drogheda, Louth in the District Court area of Drogheda where he was driving a mechanically propelled vehicle and was in due course charged with an offence of driving there while there was a concentration of alcohol in his breath exceeding a concentration of 35 micrograms of alcohol per 100 millilitres of breath contrary to s. 49, subs. 4 and 6(a) of the Road Traffic Act1961 as inserted by s. 10 of the Road Traffic Act 1994.

4

The matter came before the District Court on the 28th May, 2004 and the solicitor for the applicant applied to the District Judge for certain orders.Firstly, he applied for an order compelling the prosecution to disclose certain documents relating to the intoxilyser 6000 IRL machine located at Drogheda Garda Station.These documents included service reports, a record of service results, a calibration certificate and other like documents and these are listed in the schedule attached to the case stated.He also sought an order for the inspection of the intoxilyser machine by a Mr. Cuffe an engineer acting for the accused and furthermore, and this is the aspect of the case which has given rise to controversy, he sought an order authorising the presence of Mr. Cuffe at the next servicing and testing of the intoxilyser machine which was due to be serviced and tested in early June of 2004.It was contended by the solicitor for the accused that the attendance of Mr. Cuffe, the engineer, on the occasion of the servicing and testing of the machine was required so that the engineer could be satisfied, having regard to the fact that materials already disclosed indicated that there was some discrepancy between the recommended methodology for the servicing and testing of the machine and the actual method...