Frank Brassil v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 23 March 2021 |
| Neutral Citation | [2021] IECA 83 |
| Date | 23 March 2021 |
| Docket Number | Record No.: 2020/159 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 83
Edwards J.
McCarthy J.
Donnelly J.
Record No.: 2020/159
THE COURT OF APPEAL
Conviction – Road traffic offences – Delay – Appellant seeking to judicially review the decision to affirm his convictions – Whether delay was excessive
Facts: The appellant, Mr Brassil, was arrested on suspicion of driving under the influence of alcohol at 4:05 a.m. on the 2nd September, 2013. He was conveyed to the garda station and arrived at 4:56 a.m. and the arresting Garda sought to test the appellant’s breath using an Evidenzer. The Gardaí began the twenty minute period of observation. It transpired that there was no key to access the Evidenzer. A doctor was contacted at 5:35 a.m. to take samples from the appellant. The doctor indicated he would be at the station five minutes later, but he did not arrive until 6:30 a.m. The appellant refused to give blood or urine samples and was therefore charged with failing to provide a sample under s. 12 of the Road Traffic Act 2010 (as amended). He was also charged with dangerous driving contrary to s. 53 of the Road Traffic Act 1961 (as amended) based upon the observations by a member of An Garda Síochána of his driving. The appellant sought to judicially review the decision of the Eastern Circuit Court to affirm his convictions in respect of road traffic offences in the District Court. The High Court (Gearty J) refused to grant his application for judicial review and the appellant appealed to the Court of Appeal against that decision. It was outlined in oral submissions that the main thrust of the argument put forward by the appellant was that the trial judge erred in her refusal to quash the conviction of the appellant in circumstances where no explanation was given as to why there was a delay in securing a doctor to attend the station to obtain a sample. The appellant argued that the conviction should be overturned on the basis that the holding of the trial judge ran contrary to DPP v Finn [2003] 1 I.R. 372.
Held by the Court that the appellant had failed to provide any explanation for the delay in bringing the judicial review proceedings by way of affidavit. The Court held that the failure on his part to exhibit the impugned order before the High Court, or at least swearing on affidavit the reasons for not so doing, could not be ameliorated by any factors that would usually afford latitude in this area. The Court noted that there was no challenge made to the dangerous driving conviction in the Circuit Court; moreover, there was no link between his conviction on that offence and the delay in calling the doctor, as there was eyewitness testimony in relation to the dangerous driving and the District Court had jurisdiction to hear the case irrespective of any earlier delay in custody. The Court held that the appellant’s liberty was not at stake as a result of his conviction and the penalties imposed in relation to each offence was the same. The Court found that the trial judge carefully considered the interests of justice and there was no basis to interfere with the exercise of her discretion to refuse the appellant relief by way of judicial review in all the circumstances. In relation to the substantive point, the Court held that the decision in DPP v Finn must be understood as meaning that any delay must be examined as to whether it is excessive; it is only where it is excessive that the prosecution will be required to justify that unreasonable delay. It appeared to the Court that the Circuit Court judge made a decision that the delay was not excessive and such a decision, where founded on the evidence before him, was one he was entitled to make. As no transcript of that hearing and of the precise decision of the Circuit Court judge was made available to the Court, the Court considered whether on the evidence as agreed between the parties the delay could be said to be excessive. The Court concluded that it was not excessive.
The Court held that the appeal would be dismissed. As the respondent had been entirely successful in the appeal, the Court’s provisional view was that she was entitled to her costs in the Court.
Appeal dismissed.
JUDGMENT of Ms. Justice Donnelly delivered on the 23rd day of March, 2021
The appellant sought to judicially review the decision of the Eastern Circuit Court to affirm his convictions in respect of road traffic offences in the District Court. The High Court (Gearty J.) refused to grant his application for judicial review and the appellant now appeals against that decision.
The appellant was arrested on suspicion of driving under the influence of alcohol at 4:05 a.m., as recorded on the custody record, on the 2nd September, 2013. He was conveyed to the garda station and arrived at 4:56 a.m. and the arresting Garda sought to test the appellant's breath using an Evidenzer. The Gardaí began the twenty minute period of observation. It transpired however, that there was no key to access the Evidenzer. A doctor was therefore contacted at 5:35 a.m. to take samples from the appellant. The doctor indicated he would be at the station five minutes later, but he did not arrive until 6:30 a.m. The appellant refused to give blood or urine samples and was therefore charged with failing to provide a sample under s. 12 of the Road Traffic Act, 2010 (as amended). He was also charged with dangerous driving contrary to s. 53 of the Road Traffic Act, 1961 (as amended) based upon the observations by a member of An Garda Síochána of his driving.
The appellant claimed that the Circuit Court judge had failed to apply the law as set out in DPP v. Finn [2003] 1 I.R. 372 in holding that the appellant was in unlawful custody because of an unexplained delay in having a doctor attend at the station to take the sample.
The High Court judgment Brassil v DPP [2020] IEHC 328 dealt in a clear and structured manner with the submissions. Gearty J. dealt with preliminary grounds of objection, applied a justice of the case test to considering the implications of failing to satisfy procedural requirements and looked at the substantive claims before her.
In her judgment, Gearty J. recites that the respondent had made objection to the granting of the relief on three preliminary grounds. These grounds were delay by the appellant in seeking leave to quash the Circuit Court decision, the appellant's failure to lodge a copy of the court order sought to be quashed before the hearing commenced, as required by the Rules of the Superior Courts and, the failure of the appellant when arguing his case in the Circuit Court to raise the arguments now made in respect of the dangerous driving conviction. As regards this latter point, the focus of counsel's submission in the Circuit Court had solely been in relation to the failure to provide a blood sample for analysis.
The trial judge noted that leave had been obtained over five months after the date of conviction, a day after his disqualification period was due to commence. Indeed, the appellant did not serve papers on the respondent within the prescribed time under the order and had to obtain two extensions of time for the same purpose. There was no affidavit to grant an application seeking an extension of time nor was a copy of the impugned order before the court.
The trial judge noted that Order 84, r. 21 of the RSC required an explanation for the delay. The applicant had given an explanation but not on affidavit although that is required by the rules. The trial judge noted “ the applicant has referred in written and oral submissions to Christmas, COVID-19, family difficulties of his former solicitor, a death in the family of that solicitor and a final consultation date which was never revealed to the Court, having been left blank in the written submissions.” It should be noted that COVID-19 had no relevance with regard to the failure to seek leave in this case is leave was sought on the 20th May, 2019.
The trial judge relied upon The People (DPP) v. Kelly [1982] 2 I.R. 90 (“ Kelly”) which is the applicable test for an enlargement of time to in a criminal case. She held that the Court must consider what the justice of the case requires in all the circumstances. While the test for an extension of time in a judicial review is governed by Order 84, r. 21 and the decision in O'S v. Residential Institutions Redress Board [2018] IESC 61, the difference, if any, between the two was not a focus of submissions in this case. We will proceed on the basis that the decision in Kelly governs this case.
Gearty J. held that the reasons offered to explain the delay were weak, combining personal misfortune on behalf of one of the solicitors and the claim that a new solicitor took a different view of the case. The change of advice was pressed as a more pertinent reason supported by references to the former solicitor's letter to explain why the appellant did not immediately seek to review the decision to affirms convictions. The trial judge relied on the decision of Ryan J. in the High Court in Broe v. DPP & Ors [2009] IEHC 549 (“ Broe”) which held as follows:-
“73. The explanation that the issue was only discovered when the new solicitor came into the case does not, in my opinion, materially affect the situation. The solicitor should normally be considered as a single entity not dependent on an individual person. As a general rule, a change of solicitor should not make a situation better or worse for a party to litigation. The fact that a party's legal advisor did not think at a particular time of a point that later occurred to him is not an excuse for delay in raising it earlier. I consider the change of solicitor from one who did not, for whatever reason, raise the timing of the charge to one who did so to be essentially similar. I...
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