Fitzpatrick v DPP

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 20 November 2007
• Neutral Citation: [2007] IEHC 383
• Docket Number: [No. 1595 S.S./2004]
• Court: High Court
• Date: 20 November 2007

[2007] IEHC 383

THE HIGH COURT

[No. 1595 S.S./2004]

Fitzpatrick v DPP (Reynolds)

IN THE MATER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS

EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

COLM FITZPATRICK

APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA FERGAL REYNOLDS)

RESPONDENT

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S50

ROAD TRAFFIC ACT 1961 S50(1)

ROAD TRAFFIC ACT 1961 S50(2)

ROAD TRAFFIC ACT 1961 S50(3)

ROAD TRAFFIC ACT 1961 S50(4)

ROAD TRAFFIC ACT 1994 S13(1)(a)

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1961 S6(a)

ROAD TRAFFIC ACT 1994 S11

ROAD TRAFFIC ACT 2002 S23

CHIEF CONSTABLE OF AVON & SOMERSET CONSTABULARY v CREECH 1986 RTR 87

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S21

ROAD TRAFFIC ACT 1994 S21(1)

ROAD TRAFFIC ACT 1994 S17(2)

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

CRIMINAL EVIDENCE ACT 1992 S30

O'Neill J.

1 This case comes before the court as an appeal by way of case stated pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act,1961, and the case having been stated by Michael Connellan, a judge of the District Court. The relevant facts as proved or admitted or agreed and as found by the learned District Judge, in summary, are as follows.

2 In the early hours of the morning on 17th December, 2003 the respondent who was on duty as the driver of a marked patrol car followed a motor vehicle which was been driven by the appellant. The appellant's vehicle was brought to a stop and the lights were switched off. The respondent pulled up partly in front and partly alongside this vehicle and when the respondent approached it, the driver of the vehicle identified himself as the appellant. The respondent formed the opinion that the appellant had consumed intoxicating liquor to such an extent as would render him incapable of exercising proper control on a mechanically propelled vehicle. The respondent arrested the appellant at 2 a.m. under s. 50 of the Road Traffic Act,1961 on suspicion of having committed an offence under subs. 1, 2, 3 and/or 4 of s. 50. The appellant was conveyed to Mullingar Garda Station and at 2.30 a.m. he was brought to the doctor's room to obtain a sample from him. At 2.32 a.m. the respondent made a requirement of the appellant to provide two samples of his breath pursuant to s. 13(1)(a) of the Road Traffic Act, 1994. The respondent informed the appellant of the penalties for failure of refusal to comply with this request.

3 The respondent who was a trained operator of the Lion Intoxyliser machine entered the details into the machine. At 2.34 a.m. the appellant provided the first breath specimen and at 2.35 a.m. he provided the second breath specimen. Having done this, the machine produced two identical statements. The respondent signed both of them and then offered both statements to the appellant to sign and return one of them. The appellant signed both statements and returned one to the respondent.

4 The case stated recites that the statement gave a reading of 41 micrograms of alcohol per 100 ml of breath. The applicant was charged at 3.50 a.m. on charge sheet No. 235182.

5 In the District Court at the close of the prosecution case an application was made by counsel for the appellant for a dismiss of the charge on the basis that a statement prepared pursuant to s. 17 of the Road Traffic Act,1994 had not been tendered in evidence. It was submitted that this statement was an essential proof in a prosecution under s. 50(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by s. 11 of the Road Traffic Act, 1994 and as amended by s. 23 of the Road Traffic Act, 2002.

6 The learned District Judge rejected this submission. In support of his conclusion he referred to the case of theChief Constable of Avon and Somerset v. Creech [1986] R.T.R. 87. The learned District Judge refused the application and held that the appellant had a case to answer.

7 At no stage did the prosecution apply to reopen their case in order to put in evidence a statement prepared pursuant to s. 17 of the Road Traffic Act,1994.

8 After hearing evidence from the appellant and a Mr. Lawless, the learned District Judge convicted the appellant of the offence and imposed a fine of €1000 (three months to pay, 90 days imprisonment in default) and imposed a disqualification from driving of three months, this disqualification to take effect from the 1st August, 2004.

9 Arising out of the foregoing the learned District Judge in the case stated poses the following question for the opinion of this court:-

"In order to convict a person accused of an offence contrary to s. 50(4) and 6(a) of the Road Traffic Act, 1961, as inserted by s. 11 of the Road Traffic Act, 1994 as amended by s. 23 of the Road Traffic Act, 2002, must a statement prepared pursuant to s. 17 of the Road Traffic Act, 1994 be adduced into evidence?"

10 The statutory provisions relevant to the issues arising in this case stated are the following:

11 Section 49(4) of the Road Traffic Act,1961 (as substituted by s. 10 of the Road Traffic Act, 1994) which read as follows:

"a person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath."

12 Section 13 of the Road Traffic Act,1994:

"(1) where a person is arrested under s. 49( 8) or 50(10) of the Principal Act or s. 12(3), or where a person is arrested under s. 53(6), 106(3A) or 112(6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Station, at his discretion do either or both of the following -"

13 (a) Require the person to provide by exhaling into an apparatus for determining the concentration of alcohol in the breath, two specimens of his breath and may indicate the manner in which he is comply with the request, ....

14 (4) in a prosecution for a offence under this part or under s. 49 or 50 of the Principal Act it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for...