DPP v Sweeney and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 10 February 2012
• Neutral Citation: [2012] IEHC 55
• Judgment citation (vLex): [2012] 2 JIC 1008
• Court: High Court
• Date: 10 February 2012

[2012] IEHC 55

THE HIGH COURT

[No.1542 SS/2011]

[No.1557 SS/2011]

[No.1541 SS/2011]

DPP v Sweeney & Ors

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

GERARD SWEENEY

ACCUSED

AND

DIRECTOR OF PUBLIC PROSECUTIONS

AND

TOMMY KEANE

AND

DIRECTOR OF PUBLIC PROSECUTIONS

AND

JOHN BOYLE

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(A)

ROADS ACT 1920 S12(4)

ROAD TRAFFIC ACT 1961 S38

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1961 S53(1)

ROAD TRAFFIC ACT 1961 S2(B)

DCR O.8 r1

PHONOGRAPHIC PERFORMANCE LTD v CODY 1998 4 IR 504

DPP v DOYLE 1994 2 IR 286

DPP v COLWELL UNREP BARR 17.11.94 1995/3/1014

MISUSE OF DRUGS ACTS 1977 S23

MISUSE OF DRUGS ACTS 1977 S25

MCGRATH EVIDENCE 2005

STATE (MURPHY) v KIELT 1984 IR 458

ROAD TRAFFIC ACT 1961 S49(2)

STATE (HOWARD) v DONNELLY 1966 IR 51

P & F SHARPE LTD v DUBLIN CITY & COUNTY MANAGER 1989 IR 701

DPP v C (W) 1994 1 ILRM 321

WHELAN v FITZGERALD 2008 2 IR 678

ROAD TRAFFIC ACT 1994 S13(3)

CRIMINAL LAW

Evidence

Statements - Role of statements in court hearings - Whether statements constituted evidence - Right to hearing - Pre-determining policy of judge - Driving related charges against three separate accused - Finding by trial judge that templates used to compile garda statements - Cases dismissed -No evidence given in third case - Whether judge erred in basing decision on written statements of gardaí - Whether hearing in each case - Whether judge fettered discretion - Whether judge took into consideration irrelevant factor - Phonographic Performance Ltd v Cody [1998] 4 IR 504; DPP v Doyle [1994] 2 IR 286; People (Attorney General) v Cummins [1972] IR 312; State (Murphy) v Kielt [1984] IR 458 and P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701 applied - DPP (Lee) v Colwell (Unrep, Barr J, 17/11/1994); State (Howard) v District Justice Donnelly [1966] IR 51; People (DPP) v WC [1994] 1 ILRM 321 and Whelan v Fitzpatrick [2007] IEHC 213, [2008] 2 IR 678 approved - District Court Rules 1997 (SI 93/97), O 8, r 1 - Road Traffic Act 1961 (No 24), s 49 - Criminal Justice (Legal Aid) Act 1962 (No 12), s 2 - Misuse of Drugs Acts 1977 (No 12), ss 23 and 25 - Road Traffic Act 1994 (No 7), s 13 - Questions answered in the negative (2011/1542SS - Kearns P - 10/2/2011) [2012] IEHC 55

DPP v Sweeney

1 JUDGMENT of Kearns P. delivered the 10th day of February, 2012.

2 These cases come before the court by way of an Appeal by Way of Case Stated brought by the prosecutor against decisions of District Judge Devins (hereafter referred to as 'the District Judge') in three separate drink driving prosecutions.

BACKGROUND FACTS

3 I will set out the background facts of each case individually.

1) Gerard Sweeney

4 Gerard Sweeney (hereafter referred to as 'the first respondent') was charged with driving a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 10 millilitres of breath, contrary to s. 49(4) and 6(a) of the Road Traffic Act 1961, as amended. The first respondent was furnished with the statements of two members of An Garda Síochána (hereafter referred to as 'Garda' in the singular and 'Gardaí' in the plural).

5 In direct evidence, Garda O'Malley stated that he received a call over the radio about a possible drunk driver at a car park in Ballina. He stated that he and another Garda went immediately to the scene and, as they drove into the car park, they met an oncoming car that swerved to the left hand side of the road, narrowly missing the patrol van. Garda O'Malley stated that he spoke to the driver of the car, the first respondent in the case at hand. He stated that he got a strong smell of alcohol from the first respondent's breath and that his speech was slurred and his eyes glassed. The Garda stated that he formed the opinion that the first respondent was committing the offence of drunk driving. He stated that he placed his hand on the first respondent's shoulder and gave evidence of arrest and caution. Garda O'Malley stated that the first respondent was conveyed to Ballina Garda Station.

6 Garda O'Malley stated that the first respondent was given an Intoxilyser sample, which showed that he had 86 microgrammes per 100 millilitres of breath.

7 Garda O'Malley was cross-examined by the solicitor for the first respondent. The solicitor pointed out that the Garda had stated in direct evidence that the first respondent's speech was slurred and his eyes were glassed, but all that was stated in the statement provided to the first respondent as part of the prosecution disclosure prior to the trial was that he had got a strong smell of alcohol from his breath. The solicitor for the first respondent also pointed out that the Garda statement was dated prior to the incident in question. Garda O'Malley agreed that the date at the top of the statement was incorrect. He stated that he sometimes uses a template for the top of his statements and that this was probably how the date came to be incorrect. The District Judge interjected and stated that there was a line in the statement where the Garda stated that he had put his hand on the first respondent's shoulder and arrested him. She noted that another Garda used this same form of arrest procedure. The District Judge stated that it was obvious that Garda O'Malley was working from a template when making out his statement.

8 Garda Drury gave evidence of the Intoxilyser procedure conducted.

9 The District Judge accepted the evidence of both Gardaí. She expressed concern, however, about the possible use of templates by Gardaí in making written statements of evidence. She adjourned the case to the 26 ^th October, 2010. On 26 ^th October, 2010, she stated that Garda statements coming before her were not "totally fresh" and were "cobbled together from other statements". She stated that she had come across statements with wrong dates and names and stated that it was time to "grasp the nettle". She asked the prosecution and defence to submit written submissions and adjourned the case.

10 On the 22 ^nd February, 2011, the District Judge dismissed the case against the first respondent on the basis that she was of the view that the Gardaí had used templates in the preparation of their written statements. The District Judge stated that each Garda should give a personal account of the arrest procedure and should not rely on templates. She referred to inaccuracies and wrong dates and spelling errors. She stated that the prosecuting Garda had accepted that his statement was partially incorrect in that the date of the statement preceded the date of the offence. She stated that a Garda statement is made available to assist the defence and that a Garda should base their statement on their recollection of events, which may also be noted in their notebooks. A statement should be personal and should not be drafted using cut and paste and blank-filling. She stated that a Garda statement should not contain factual inaccuracies and the statements of two Gardaí in one case should be different. The District Judge stated that "justice must be done and seen to be done." She commented that statements are made available to the defence to help them to advise clients and that the same proofs should apply in all courts. She said that the prosecution should not hold back evidence if it helps the defence.

2) Tommy Keane

11 Tommy Keane (hereafter referred to as 'the second respondent') was charged with offences under: s. 12(4) of the Roads Act 1920, as amended (driving a vehicle to which identification was not fixed on the back); s. 38 of the Road Traffic Act 1961, as amended (driving a vehicle without holding a driving licence); and ss. 49 (4) and 49 (6) (a) of the Road Traffic Act 1961, as amended (driving a vehicle while there was present in his body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 10 millilitres of breath).

12 Copies of Garda statements were provided by way of disclosure to the second respondent, in advance of the hearing date. Evidence was given at the trial from Garda Barrett, Garda Holland and Garda Kneafsey, who all gave evidence in line with their statements. Garda Barrett gave evidence that he had observed a tractor driving onto the main road from a car park before it then reversed back into the car park. He stated that, from his observation when he spoke with the driver, he formed the opinion that the driver had committed the offence of drunk driving and he arrested the first respondent and brought him to Roscommon Garda Station where the result of an Intoxilyser test was 66 microgrammes of alcohol per millilitre of breath.

13 Under cross-examination, it was put to Garda Barrett that, in direct evidence, he had formed the opinion that the second respondent had committed the offence of drunk driving after he had administered the roadside breath test, whereas in his statement provided to the defence in advance of trial, he had stated that he formed the opinion after he had observed the demeanour of the second respondent but before he had administered the roadside breath test. Garda Barrett said that his direct evidence was correct and that the sequence as set out in his statement was a typing error. The solicitor for the second respondent put it to Garda Barrett that, when compiling his statement, he had been working from a template or copying and pasting...