DPP v Walsh

• Jurisdiction: Ireland
• Judge: Mrs. Justice Macken
• Judgment Date: 16 March 2005
• Neutral Citation: [2005] IEHC 77
• Docket Number: No. 1243 SS/2004
• Court: High Court
• Date: 16 March 2005

[2005] IEHC 77

THE HIGH COURT

No. 1243 SS/2004

DPP v WALSH

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION

ACT 1857 AS EXTENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECTUIONS

Prosecutor/Appellant

AND

BRENDAN WALSH

Accused/Respondent

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

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 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 REG 8(1)

ROAD TRAFFIC ACT 1994 S13(1)(a)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1994 S17(4)

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S21(1)

ROAD TRAFFIC ACT 1994 S20

ROAD TRAFFIC ACT 1994 S21

ROAD TRAFFIC ACT 1994 S13

DPP v FINN 2003 1 IR 372 2003 2 ILRM 47

DPP v MCNIECE 2003 2 IR 614

DPP v WALSH 1985 ILRM 243

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S17(2)

CRIMINAL LAW

road traffic offences

Drunken driving - Intoximeter- Observation period - Requirement found in garda training manual - No evidence before court concerning such requirement - Whether prosecutor must prove accused observed for twenty minutes immediately prior to carrying out test - Whether presumption attaching to intoximeter certificate - Road Traffic Act 1961 (No 24), s 49(8) - Road Traffic Act 1994 (No 7), ss 13 and 21(1) - Case stated answered that prosecution should not have been dismissed

The respondent appeared before the District Court charged with drunk driving pursuant to s. 49(4) of the Road Traffic Act, 1961 as amended. District Justice Hamill dismissed that charge against the respondent on the ground that there was no evidence before the court that the respondent had been observed for a continuous period of twenty minutes immediately prior to his providing specimens of his breath to the Intoximeter EC/IR. Judge Hamill held that the absence of such evidence, and therefore of compliance with the procedures laid down in the Garda training manual, was fatal to the prosecution case. Following a request from the appellant, Judge Hamill submitted a case stated seeking the opinion of the High Court as to whether he was correct in law to dismiss the aforementioned charge against the respondent.

Held by Macken J. in answering the question in the negative:

1. That if a District Justice has before him, as he did in this case, a statement made under s. 17(2) of the Road Traffic Act, 1994 which contains a fact indicative of an alcohol level above the permitted legal level, that fact is sufficiently established in law so as to permit a district justice to convict on the charge in question.

2. That the respondent failed to adduce any evidence of the requirement to observe an accused for a continuous period of twenty minutes prior to taking a breath sample by way of cross-examination or production of a garda training manual and accordingly the presumption established by s. 21 of the Act of 1994 concerning the facts appearing in the s. 17(2) statement was not rebutted.

Reporter: L.O’S.

Mrs. Justice Macken

1 This is a case stated by District Justice William Hamill of the District Court Dublin Metropolitan District, pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act1961, on the application in writing of the Prosecutor/Appellant who was dissatisfied with the determination of the District Justice as being erroneous in point of law. The Case Stated seeks the opinion of the High Court as to whether he was correct in law to dismiss a charge against the respondent on a prosecution arising out of the following sequence of events.

2 At a sitting of the District Court at Dun Laoghaire Co. Dublin on 25th November, 2002, Brendan Walsh, the respondent appeared to answer seven complaints the subject of seven summonses served on him, all involving motoring offences of one type or another. Only one of those summonses is germane to the subject matter of the case stated.

3 According to the case stated, the respondent was charged,inter alia, that on 21st April, 2001 at N11, Stillorgan Road, Co. Dublin, a public place in the Dublin Metropolitan District, he drove a mechanically propelled vehicle registered number … 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 micrograms of alcohol per 100 millilitres of breath, contrary to s. 49(4) and 6(a) of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic Act, 1994.

4 The relevant facts proved or admitted or agreed and as found by the District Justice, according to the case stated, are the following:

5 1. At 1.24 am (on 21st April, 2001), Garda O'Grady arrested the respondent under s. 49(8) of the Road Traffic Act,1961–1995 for having committed an offence under s. 49(1) (2) ( 3) or (4) of that Act, and informed him that he was arresting him for drunk driving.

6 2 Garda O'Grady then conveyed the respondent to Dun Laoghaire Garda Station in the Garda patrol vehicle, arriving at 1.45 am. On arrival at Dun Laoghaire Garda Station, Garda O'Grady introduced the respondent to the Member-in-Charge, Garda Francis Byrne. In Garda O'Grady's presence, Garda Byrne complied with the provisions of regulation 8(1) of the Treatment of Persons in Custody in Garda Siochana Stations Regulations, 1987 and gave the respondent a copy of his Notice of Rights. The Respondent understood his rights and did not request a Solicitor. At 1.47 a.m. Garda O'Grady accompanied the Respondent to the interview room at Dun Laoghaire Garda Station. Garda O'Grady remained in the interview room, observing the respondent until 2.06 a.m.. During that time, the respondent consumed nothing by mouth.

7 3 Garda Martha McEnery was present at Dun Laoghaire Garda Station when the Respondent arrived there at 1.45 a.m. on 21st April, 2001, having been arrested by Garda O'Grady for drunk driving. Garda McEnery observed the respondent in the interview room at Dun Laoghaire Garda Station between 1.47 a.m. and 2.06 a.m.. During that time the respondent consumed nothing by mouth. At 2.06 a.m. Garda McEnery took the respondent to the doctor's room at Dun Laoghaire Garda Station for the purposes of carrying out an evidential breath test on the Intoximeter EC/IR. Garda McEnery formed the opinion that the respondent had consumed an intoxicant by reason of her observation that there was a strong smell of intoxicating liquor from his breath and his eyes were bloodshot.

8 1. Garda McEnery then made a requirement of the respondent to provide two specimens of his breath pursuant to s. 13(1)(a) of the Road Traffic Act,1994. She informed the respondent that failure or refusal to comply with this requirement in the manner described was an offence contrary to s. 13(2) of the Road Traffic Act, 1994 and outlined the penalties to him. The respondent indicated that he understood the requirement.

9 2. Garda McEnery observed the relative temperature and humidity of the room from the thermohygrometer and noted those details in her notebook. She proceeded to type the respondent's name and address into the Intoximeter EC/IR. She removed a mouthpiece from a sealed bag, and placed it on the blowing tube. She then outlined to the respondent the manner in which he was to provide two specimens of his breath.

10 3. At 2.11 a.m. and 2.14 a.m. respectively the respondent provided two specimens of breath in compliance with the requirement administered to him. The Intoximeter EC/IR produced two statements, disclosing the presence of 65 micrograms of alcohol per 100 millilitres of breath. Garda McEnery signed both statements, before making a requirement of the respondent under s. 17(4) of the Road Traffic Act,1994 to sign the two statements, explaining to him the penalties for failing to do so. The respondent duly signed both, one of which he returned to Garda McEnery.

11 According to the case stated, at the conclusion of the evidence, counsel for the respondent, as accused, submitted that there was no evidence before the court that the respondent had been observed for 20 minutes prior to the requirement made of him to provide two specimens of his breath. The requirement that a person be so observed was contained in the Garda training manual for the use of the Intoximeter EC/IR. It was further submitted that while the s. 17 certificate indicated that the Intoximeter EC/IR had commenced operation at 2.08 a.m. on the relevant date, there was no evidence before the court that any member of An Garda Síochána had observed the respondent between 2.06 a.m. and 2.08 a.m.. It is my understanding that the entire of this paragraph in the case stated reflects the argument made by on behalf of the respondent, and not any findings of fact by the District Justice.

12 Again according to the case stated, it was submitted on behalf of the prosecutor, in response, that in the absence of any evidence regarding the status of the Garda training manual, no conclusions could be drawn as a result of any alleged non-compliance with the procedures laid down therein, that compliance with any such procedures was not a proof required by statute and therefore the prosecution was not required to give evidence of any such compliance in order to succeed in establishing that the respondent had committed the offence with which he had been charged. If the respondent/accused had wished to challenge the validity of the procedures adopted on the occasion in question, that should have been done by way of cross-examination and/or by adducing evidence for that...