DPP v Syron

JurisdictionIreland
JudgeMr. Justice O'Higgins
Judgment Date07 March 2001
Neutral Citation[2001] IEHC 40
CourtHigh Court
Docket Number[2000 No. 1597 SS],1597 SS/2000
Date07 March 2001

[2001] IEHC 40

THE HIGH COURT

1597 SS/2000
DPP v. SYRON
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTALPROVISIONS) ACT 1961(NO. 39 OF 1961)

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR

AND

DAVID SYRON
RESPONDENT

Citations

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1961 S13(2)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(5)

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S17(1)

ROAD TRAFFIC ACT 1994 S17(2)

ROAD TRAFFIC ACT 1994 S17(3)

ROAD TRAFFIC ACT 1994 (S17) REGS 1999 SI 326/1999

ROAD TRAFFIC ACT 1994 S17

CRIMINAL EVIDENCE ACT 1992 S5

ANIMAL REMEDIES ACT 1993

HEALY, STATE V DONAGHUE 1976 IR 325

O'CALLAGHAN V DISTRICT JUDGE CLIFFORD 1993 3 IR 603

DPP V GILMORE 1981 ILRM 102

SCOTT V BAKER 1969 1 QB 659

ROAD TRAFFIC ACT 1994 S21(1)

MURPHY, STATE V JOHNSON 1983 IR 235

ROAD TRAFFIC ACT 1968 S38

ROAD TRAFFIC ACT 1994 S6

ROAD TRAFFIC ACT 19681968 PART 5

ROAD TRAFFIC ACT 1961 S49

HOBBS V HURLEY UNREP COSTELLO 10.6.1980 1980/6/1106

MANSON V O'DONNELL UNREP KINLEN 27.1.2000 1999/17/5103

Synopsis:

CRIMINAL LAW

Road traffic offences

Case Stated - District Court - Fair procedures - Use of alcolyser - Driving with excess alcohol - Whether lack of scientific formulation - Whether safe to proceed to conviction on foot of certificate - Courts (Supplemental Provisions) Act, 1961 section 52 (1) - Road Traffic Act, 1961 section 49 (8) (2000/1597SS - O'Higgins J - 7/3/01) [2001] 2 IR 105

DPP v Syron

The case was referred as a case stated to the High Court on the use of an alcolyser to found a conviction for driving with excess alcohol. O'Higgins J held that the absence of scientific formulation did not preclude the certificate on which the amount of alcohol was stated from being prima facie evidence. The case stated was answered in the affirmative.

1

JUDGMENT of Mr. Justice O'Higginsdelivered the 7th day of March, 2001.

2

This Consultative Case stated by Judge Mary Devins reads asfollows:

"This is a case stated by me, Mary Devins, a Judge of the District Court, sitting at Crossmolina, in the County of Mayo, pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act 1961on the request of the Respondent, to refer to a question of law arising from these proceedings for the determination of the High Court."

3

1. At a sitting of the District Court held at the District Court No. 3 in the town of Crossmolina in the County of Mayo on the 6th day of April 2000, the Respondent appeared before me to answer the accusation of the Director of Public Prosecutions in the summons served on the Respondent alleging the following offence:

4

(a) "that he did on the 16th day of January 2000 at Tonacrock, Lahardane, Ballina in the County of Mayo in the District Area of Crossmolina in District No. 3, drive a mechanically propelled vehicle to wit Motor Car Registered Number 94 D 34670 in a public place where there was presentin your body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in your breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath contrary to Section 49(4) and 6(a) of the Road Traffic Act, 1961as inserted by Section 10 of the Road Traffic Act, 1994, as amended by Road Traffic Act, 1995".

5

The Respondent was represented by Aidan Crowley, Solicitor of Messrs. Egan, Daughter & Co., Solicitors, Castlebar, County Mayo and the Prosecutor was represented by Inspector Gerry Henry.

6

2. The facts proved or admitted in evidence were asfollows:

7

(a) Sergeant M. Lenehan, a member of An Gardia Siochánastationed at Castlebar, gave evidence that on the 6th of January 2000 he was on duty in an official patrol car in Lahardane, Ballina. At 1.55 a.m. he saw a vehicle leave the village at high speed. He decided to stop it. He followed the vehicle towards the Pontoon direction. As he caught up with it he saw that it was a white Fiesta van registration number 94 D 34670. It was travelling at a high speed. The van turned left into a private driveway and stopped beside a house.

8

(b) Sergeant Lenehan approached the driver and spoke to him. The driver gave his name as David Syron, Tonacrock, Lahardane, Ballina (the Respondent herein). Sergeant Lenehan got a strong smell of intoxicating liquor from the Respondent's breath, his eyes were very real and his speech slurred.

9

(c) Sergeant Lenehan formed the opinion that the Respondent was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle. He arrested him under Section 49(8) of the Road Traffic Act 1961/ 957for an offence under Section 49(1) of that Act at 2 a.m. and told him that he was arresting him for drunk driving. The place of arrest was Tonacrock, Lahardane, Ballina.

10

(d) Sergeant Lenehan placed the Respondent in the patrol car and took him to Castlebar Garda Station, arriving at 2.35 a.m. Sergeant Lenehan was present when the member in charge Garda Crowley, brought the custody record into operation and handed the Respondent his notice of rights and explained them to him in accordance with the Treatment of Persons in Custody Regulations.

11

(e) At 2.43 a.m. Sergeant Lenehan took the Respondent to the room where the intoxilyser was located. Sergeant Lenehan explained the procedure to the Respondent in plain language. He recorded the temperature in the room at 18 degrees centigrade and 44%. Sergeant Lenehan was satisfied that the Respondent had not had food or drink for 20 minutes and that he had not smoked for the previous five minutes. Sergeant Lenehan entered his own and the Respondent's particulars into the intoxilyser.

12

(f) Sergeant Lenehan then said to the Respondent "under Section 13(1)(a) of the Road Traffic Act 1994I am now requiring you to provide two specimens of your breath by exhaling into this apparatus designed for determining the concentration of alcohol in your breath failure or refusal to comply with my requirement or failure or refusal to comply in themanner outlined by me is a specific offence under Section 13(2) of the Road Traffic Act. Penalty on summary conviction liable to a fine not exceeding £1,000,00 or to imprisonment for a term not exceeding six months or to both.

13

(g) The Respondent provided two specimens of this breath. The first breath specimen was provided at 2.48 a.m., the second specimen was provided at 2.49 a.m. The apparatus printed two identical statements which showed that the Respondent had a concentration of 73 microgrammes of alcohol per 100 millilitres of breath. Sergeant Lenehan signed both statements and supplied both to the Respondent and on his request the Respondent signed both and returned one of them to Sergeant Lenehan. The said statement was obtained automatically and directly after the Respondent provided two specimens of breath in the designated machine located at Castlebar Garda Station on the night of the alleged offence. Sergeant Lenehan then took the Respondent back to the public office at 2.58 a.m. where he was released from custody.

14

(h) The Statement signed by Garda Lenehan and the Respondent, which was handed into evidence, is annexed to the within Case Stated and forms part thereof.

15

3. At the close of the prosecution case Mr. Crowley made various submission on behalf of the Respondent. He stated that in the absence of clear regulations governing the calculation of the concentration of alcohol in an accused breath and in the absence of the Prosecutor producing the appropriate lawful authority pursuant to the Road Traffic Act 1994, which set out a scientificformulation or manner in which a sample of breath was calculated for the purposes of grounding a prosecution of an offence pursuant to Section 49(4) of the Road Traffic Act, as inserted by Section 10 of the Road Traffic Act 1994that the case against the Respondent should be dismissed. Mr. Crowley submitted that the absence of such lawful authority was in breach of the Respondent's constitutional right to know fully the case being made against him and to thereupon fully and adequately defend himself, armed with the knowledge of the total ingredients of the case being made against him.

16

4. In reply Inspector Henry stated that the case against the Respondent was grounded on the evidence produced by themachine.

17

5. It is my opinion therefore that a question of law arises and having been requested by the Applicant to do so I now seek a determination from the High Court as to whether I am entitled to convict the Applicant in these criminal proceedings in the absence of such lawful authority by was of regulations under the Road Traffic Act, 1994or otherwise which set out a scientific formulation or manner in which a sample of breath is to be calculated for the purposes of making out an offence pursuant to Section 49(4) of the Road Traffic Act as inserted by Section 10 of the Road Traffic Act 1994.

18

Signed:

19

Mary Devins.

20

Judge of the District Court.

21

Dated this 8th day of September 2000.

22

Road Traffic Act. 1994, section 17 - statement

23

APPARATUS: lion intoxilyzer 6000 IRL

24

GARDA SÍOCHÁNA STATION:

25

CASTLEBAR

26

COUNTY MAYO

27

TEST NUMBER: 80404/00278

28

DATE OF START OF TEST: 16 January 2000

29

PERSON WHO PROVIDED SPECIMENS

30

NAME: SYRON, David

31

ADDRESS:

32

Tonacrick

33

Lahardane

34

Ballina Co Mayo

ANALYSIS

TEST

ug/100ml

TIME

BLANK

000

02:45

SIMULATOR CHECK 1

034

02:46

BLANK

000

02:46

BREATH SPECIMEN 1

093

02:48

BLANK

000

02:48

BREATH SPECIMEN 2

089

02:49

BLANK

000

02:49

SIMULATOR CHECK 2

034

02:30

35

The...

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