DPP v White

• Jurisdiction: Ireland
• Judge: Ms Justice Miriam O'Regan
• Judgment Date: 19 December 2022
• Neutral Citation: [2022] IEHC 708
• Court: High Court
• Docket Number: [Record No. 2022/109SS]

In the Matter of a Statement Pursuant to Section 52 of the Courts (Supplemental Provisions) Act 1961

Between

The Director of Public Prosecutions (At the Suit of Garda David O'Donoghue)

Prosecutor

and

Patrick White

Defendant

[2022] IEHC 708

[Record No. 2022/109SS]

THE HIGH COURT

Case stated – Authorisation – Validity – District Court stating a case for the opinion of the High Court – Whether the District Court was correct in law in holding that the written authorisation was valid in respect of the checkpoint at which the defendant was stopped

Facts: Garda O'Donoghue, in purported reliance upon an authorisation pursuant to s. 10 of the Road Traffic Act 2010 as substituted by s. 11 of the Road Traffic Act 2016 dated 13 October 2019 made by Inspector Ellard, authorising the establishment of a checkpoint or checkpoints as set out thereunder including at number 2 thereof on 13 October 2019 at Bóthar Katherine Tynan, Tallaght, Dublin 24 (a public place) between the hours of 01:00 and 02:00, stopped the defendant, Mr White, who was then driving a motor vehicle, registration number 08-D-50307. The defendant subsequently appeared before Judge McNamara in the District Court on 25 February 2021 to answer three complaints by way of summons, asserting that the defendant: (1) did not have insurance; (2) was driving without a licence; and (3) had a concentration of alcohol in his breath that exceeded a concentration of 9mg of alcohol per 100ml of breath. It was accepted at the trial before the District Court that Garda O'Donoghue was conducting a mandatory intoxicant testing checkpoint at the location identified above at 01:40 hours on 13 October 2019 and took a roadside breath sample from the defendant which indicated a fail result. Included in the evidence adduced on behalf of the prosecutor the authorisation aforesaid was submitted in evidence. At the close of the prosecution case the defence made an application to dismiss on the merits all of the charges on the basis that the authorisation was invalid. Submissions were made by the prosecutor and the defendant, following which, the matter was adjourned until 3 June 2021 when the District Court Judge was satisfied that the authorisation document was valid. The defendant did not go into evidence and on 22 July 2021 the defendant was convicted of the three charges. The defendant applied asking the District Court to state a case for the opinion of the High Court which was acceded to in respect of the following questions: (1) Was I correct in law in holding that the written authorisation was valid in respect of the checkpoint on 13th October, 2019 at Bóthar Katherine Tynan Tallaght, Dublin 24, at which the defendant was stopped? (2) If the answer to question (1) is no, was I correct in convicting the defendant on each of the three charges?

Held by the Court that, given that the authorisation was in existence at the time of the checkpoint, the authorisation contained a clear and proper communication vis-à-vis the checkpoint, the authorisation insofar as it referred to the checkpoint was in writing, did specify the date and public place in which the checkpoint was to be established and further identified the hours at any time between which it was to be operated, and the defendant was stopped within the confines of those particulars, the checkpoint at which the defendant was stopped was validly authorised. The Court held that although the finding of fact identified in paragraph 6(a) of the case stated was not an alternate to the production of the authorisation, it was clear that this finding of fact was in addition to the production of the authorisation which was subsequently referred to at paragraph 6(e). The Court held that the finding of fact was sufficient to establish that the authorisation was executed prior to 1:40am on 13 October 2019.

The Court answered the questions posed by the District Court in the following terms: (1) Yes. (2) Does not arise. As the prosecutor had been entirely successful, it was the Court’s provisional view that they should be entitled to their costs, to be adjudicated in default of agreement.

Case stated.

JUDGMENT of Ms Justice Miriam O'Regan delivered on 19 December 2022 .

Issues

1 . In purported reliance upon an authorisation pursuant to s.10 of the Road Traffic Act 2010 as substituted by s.11 of the Road Traffic Act 2016 dated 13 October 2019 made by Inspector Denis Ellard, authorising the establishment of a checkpoint or checkpoints as set out thereunder including at number 2 thereof on 13 October 2019 at Bóthar Katherine Tynan, Tallaght, Dublin 24 (a public place) between the hours of 01:00 and 02:00, Garda David O'Donoghue stopped the defendant who was then driving a motor vehicle, registration number 08-D-50307.

The defendant subsequently appeared before Judge Patricia McNamara in the District Court on 25 February 2021 to answer three complaints by way of summons, asserting that the defendant:-

• (1) did not have insurance;

• (2) was driving without a licence; and

• (3) had a concentration of alcohol in his breath that exceeded a concentration of 9mg of alcohol per 100ml of breath.

2 . It was accepted at the trial before the District Court that Garda O'Donoghue was conducting a mandatory intoxicant testing checkpoint at the location identified above at 01:40 hours on 13 October 2019 and took a roadside breath sample from the defendant which indicated a fail result. Included in the evidence adduced on behalf of the prosecutor the authorisation aforesaid was submitted in evidence. At the close of the prosecution case the defence made an application to dismiss on the merits all of the charges on the basis that the authorisation was invalid. Submissions were made by the prosecutor and the defendant, following which, the matter was adjourned until 3 June 2021 when the District Court Judge was satisfied that the authorisation document was valid. The defendant did not go into evidence and on 22 July 2021 the defendant was convicted of the three charges. The defendant applied asking the District Court to state a case for the opinion of the High Court which was acceded to in respect of the following questions:-

(1) Was I correct in law in holding that the written authorisation was valid in respect of the checkpoint on 13th October, 2019 at Bóthar Katherine Tynan Tallaght, Dublin 24, at which the defendant was stopped?

(2) If the answer to question (1) is no, was I correct in convicting the defendant on each of the three charges?

Authorisation

3 . The authorisation of 13 October 2019 established two checkpoints, the first being on 12 October 2019 on the N81 at Glenview Roundabout, Tallaght, Dublin 24 between the hours of 22:45 and 23:45. It is not disputed that this first checkpoint established was on a date in advance of the signed authorisation by Inspector Ellard.

4 . Under s.10(3) of the 2010 Act as amended, the authorisation is to be in writing and shall specify the date on which and the public place in which the checkpoint is to be established and the hours at any time between which it may be operated. Section 10(4) provides that pursuant to such an authorisation a member of An Garda Síochána on duty at the checkpoint may stop any vehicle at the checkpoint and request the party in charge of the vehicle to do one or more of the following:-

(1) to provide a specimen of his or her breath;

(2) to provide a specimen of his or her oral fluid;

(3) to accompany him or her or another member of An Garda Síochána to a place.

Under s.10(6) if a party fails to comply with a Garda exercising those powers at a checkpoint a penalty arises.

Under s.10(11) an authorisation expressing itself to be such authorisation shall, until the contrary is shown, be sufficient evidence of the facts stated in it without proof of any signature on it or that the signatory was a person entitled under s.2 to sign it.

Submissions

5 . The defendant argues, based on the following case law, that the written authorisation for the checkpoint is an essential proof in the prosecution of an individual and such written authorisation must speak for itself in terms of what it constitutes with no scope for supposition or subsequent explanation. It is argued that the authorisation does not meet that standard with the error on its face making it misleading unclear and unintelligible to any ordinary person...