DPP v Nicholas Reville

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 21 December 2000
• Neutral Citation: 2004 WJSC-HC 3877
• Date: 21 December 2000
• Docket Number: No. 216 S.S./1998
• Court: High Court

2004 WJSC-HC 3877

THE HIGH COURT

No. 216 S.S./1998

DPP (BERMINGHAM) v. REVILLE

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 (19 AND 20 VICT. C. 43) AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA BERMINGHAM

PROSECUTOR/APPELLANT

AND

NICHOLAS REVILLE

ACCUSED/RESPONDENT

Abstract:

Criminal law - Drink driving - Case stated - Statement in writing of right to retain specimen - Whether prosecution precluded by failure to offer accused statement in writing of his right to retain specimen - Road Traffic Act 1961, section 49 - Road Traffic Act 1994, section 18.

Facts: section 18 of the Road Traffic Act 1994 provides that: "(2) where a specimen of blood or urine of a person has been divided into two parts pursuant to sub section 1, a member of the Garda Siochana shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain whether of the two containers....(4) In a prosecution for an offence under...section 49...of the...Act [of 1961], it shall be presumed until the contrary is shown that sub-sections (1) to (3) have been complied with". The respondent had been arrested on suspicion of drink driving and a sample for analysis of blood alcohol collected from him. The District Judge hearing the prosecution held that the evidence of the arresting garda had to be regarded as a complete statement of what had occurred and concluded that the statement in writing required under section 18(2) of the Act of 1994 had not been offered to the respondent and that the presumption contained in section 18(4) of the Act of 1994 was rebutted and that there could be no conviction in the absence of such a statement. The District Judge, at the request of the appellant, stated the following question for the opinion of the High Court: "Whether having found as a matter of fact that the statement in writing referred to in section 18(2) of the Act of 1994 had not been offered to the accused, I was correct in law in holding that there could be no conviction for the offence charged and accordingly in dismissing the summons against the accused."

Held by Ó Caoimh J in answering the case stated in the affirmative, that the provisions of section 18(2) of the Act of 1994 were mandatory in terms and not merely directory. However, the Court also held that there was no evidence upon which the District Court could have concluded as a matter of fact that there had been a failure to comply with the provisions of section 18(2) of the Act of 1994 and, accordingly, remitted the case to the District Court to proceed in the absence of evidence negating the presumption in section 18(4) of the Act of 1994.

Reporter: P.C.

1 Mr. Justice Aindrias Ó Caoimh on the 21st day of December 2000.

2 This is an Appeal by way of case stated from Judge Albert L.O'Dea a judge of the District Court assigned to District Number 12 who has stated a case at the request of the Director of Public Prosecutions (hereafter referred as the "Director") who is dissatisfied with the determination of Judge O'Dea as being erroneous in point of law, on a prosecution against the Respondent on a charge of driving with an excess of alcohol in his blood contrary to Section 49 (2) and (6)(a) of the Road Traffic Act 1961, as inserted by Section 10 of the Road Traffic Act 1994as amended by the Road Traffic Act of 1995.

3 The case stated recites that the prosecution against the Respondent came before the District Court sitting at Ennis in the County of Clare on the 20th of February 1998 when the only evidence given was that of Garda K. Bermingham who was apparently examined in minute and considerable detail by Superintendent Kelly as to his observations, the steps he took and the procedures he followed including, in particular those under Section 18 of the Road Traffic Act 1994. It is stated at paragraph 3 of the case stated that the *???query?????? had before him his notebook and was assisted on a number of occasions by being asked what he did next and what else he did. It was stated that he was not cross-examined by Mr Sadleir the Respondent's Solicitor.

4 At paragraph 4 of the case stated it is indicated that at the close of the prosecution case he submitted that Judge O'Dea should dismiss the case against the Respondent. It appears that Mr. Sadleir submitted that because the prosecution chose to open up and explore in detail the procedure followed in relation to Section 18 of the Road Traffic Act 1994 that he should regard the evidence given as a complete statement of what took place. It was accepted that no evidence had been given regarding the statement in writing required by Section 18 (2) of the said Act. Judge O'Dea took the view that having regard to the nature of the evidence given by Garda Bermingham and the detailed examination of him by Superintendent Kelly and the fact that he had access to his notebook, his evidence should be regarded as a complete statement of what took place.

5 The case stated reveals that there were further submissions and argument as to whether or not it was necessary that the Respondent should have been offered such a statement in writing. Mr. Sadleir on behalf of the Respondent submitted that it was necessary and that such an offer was an essential link in the chain leading to conviction. As against this, Superintendent Kelly submitted that such an offer was not necessary as it was only confirmation of action already taken. Mr. Sadleir stated that the Respondent accepted that the required procedures had been followed, save in relation to the offer of the required statement in writing and indicated that this would be his evidence if the application to dismiss was refused.

6 Judge O'Dea considered the entire matter carefully and ???query?????? in the particular circumstances of the case that the evidence of Garda Bermingham had to be regarded as a complete statement of what had occurred and he therefore concluded as a matter of fact that the statement in writing referred to in Section 18 (2) of the Road Traffic Act 1994 had not been offered to the Respondent and that the presumption contained in Section 18(4) of the Act was rebutted. The Judge did conclude, furthermore, as a matter of fact that Garda Bermingham had offered the Respondent one of the sealed containers containing a sample of his blood pursuant to Section 18 of the Act of 1994 and as a matter of matter of fact the Respondent did retain one of the containers offered to him.

7 The Judge concluded nevertheless that there could be no conviction in absence of such a statement as required under Section 18 sub section 2 of the Act having been furnished to the Respondent.

8 The opinion of this Court...