D. P. P. -v- Freeman, [2009] IEHC 179 (2009)

Docket Number:2008 1438 SS
Party Name:D. P. P., Freeman
Judge:Mac Menamin J.

THE HIGH COURT2008 1438 SSIN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961BETWEEN/DIRECTOR OF PUBLIC PROSECUTIONSPROSECUTOR /APPELLANTANDLLOYD FREEMANACCUSED/RESPONDENTJUDGMENT of Mr. Justice John MacMenamin dated 21st day of April, 2009.Introduction1. On its face, this appeal by way of case stated simply raises issues as to the interpretation of s. 17 of the Road Traffic Act 1994. This provision relates to the statutory procedure to be adopted for the signing of a certificate following provision of a breath specimen, which certificate may be used in evidence in a prosecution under s. 13 of the Road Traffic Act 1994.2. In one sense it might be said the points at issue here are purely "technical". They relate simply to what constitutes a "duly completed" certificate under the section; and whether the garda administering the test to the accused, Garda Paul Dempsey, should have signed the form before the accused, Lloyd Freeman, rather than, as happened here, afterwards. A further issue is as to the consequences in law of adopting a procedure prima facie at variance from the statutory provisions engaged. But this judgment also must discuss and consider the precedential status of a prior judgment of this court prima facie on all fours with this case; whether there are other authorities which should be applied by way of distinction from that authority; and the extent to which, if at all, a discretion of this court can be exercised in an appeal by way of case stated on a point of law, as opposed to a judicial review which is a discretionary remedy.The statutory provisions3. Section 17 of the Act of 1994 provides:-"17.-(1) Where, consequent on a requirement under section 13 (1)(a) of him, a person provides 2 specimens of his breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen- (a) in case the apparatus determines that each specimen has the same concentration of alcohol, either specimen, and(b) in case the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol, shall be taken into account for the purposes of sections 49 (4) and 50 (4) of the Principal Act and the other specimen shall be disregarded. (2) Where the apparatus referred to in section 13 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 49 (4) or 50 (4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.(3) On receipt of the statements aforesaid, the person shall on being requested so to do by the member aforesaid- (a) forthwith acknowledge such receipt by placing his signature on each statement, and(b) thereupon return either of the statements to the member.It is important to note the penal provisions attached to s. 17 as follows:-"(4) A person who refuses or fails to comply with subsection (3) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding 3 months or to both.(5) Section 21 (1) shall apply to a statement under this section as respects which there has been a failure to comply with subsection (3)(a) as it applies to a duly completed statement under this section. (emphasis added)."Section 21 of the Road Traffic Act 1994 provides:"21.-(1) A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under this Part prior to and in connection with the supply by him pursuant to section 17(2) of such statement (emphasis added).The regulations made under s. 17 of the 1994 Act4. In order to place the matter in further statutory context it is necessary to refer to the regulations applicable to the administration of s. 17 of the Act of 1994. These are the Road Traffic Act 1994 (Section 17) Regulations 1999 (S.I. No. 326 of 1999) which provide at regulations 4 and 5:-"4. The Statements to be produced, pursuant to section 17 of the Act of 1994, shall be in the form set out in the Schedule to these Regulations.5. For the purpose of completing the statements referred to in article 4, the member of the Garda Síochána who required the arrested person to provide two specimens of breath shall:- (a) prior to the provision of the specimens, input the following information into the apparatus referred to in section 13(1) of the Act of 1994-(i) the name and address of the person providing the specimens,(ii) the section of the Road Traffic Act, 1961 (No. 24 of 1961) which it is alleged that the person contravened,(iii) his or her name and number, and(b) following the automatic production of the statements by the apparatus, sign the said statements (emphasis added).The Case Stated summarised5. On 18th day of September, 2008, Judge Gerard Haughton, Judge of the District Court stated this case at the request of the prosecutor/appellant (hereinafter referred to as "the prosecutor") who was dissatisfied with his determination of a proceeding which came before him on 12th February, 2007, at a sitting of the Dublin Metropolitan District Court which determination is challenged as being erroneous on a point of law. The matter may be summarised in this way:-6. The accused, Lloyd Freeman was charged that on 20th October, 2006, at Queen Street, Dublin 7 in the Dublin Metropolitan District he drove a mechanically propelled vehicle in a public place 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 exceed a concentration of 35 milligrams of alcohol per 100 millilitres of breath contrary to s. 49 (4) and (6)(a) of the Road Traffic Act 1961 (as inserted by Section 10 of the Road Traffic 1994, as amended by section 23 of the Road Traffic Act 2002).7. In brief:-(a) Garda Ruth Collins when operating a check-point at Queen Street stopped Mr. Freeman's car and observed that his eyes were glassy and red, his speech slurred and there was a smell of intoxicating liquor from his breath. She thereafter formed the opinion that Mr. Freeman had consumed intoxicating liquor to such an extent as to have improper control of a mechanically propelled vehicle. She furnished the requisite cautions to the accused under s. 49 of the Road Traffic Act 1961. The accused was informed in simple terms the reason for his arrest.(b) Thereafter the accused was conveyed to Pearse Street garda station. He arrived there at 23:50. He was introduced to the member in charge who completed the custody record and read over and provided the accused with a copy of his notice of rights.(c) At 00:10 the accused was taken to the doctor's room by Garda Collins, Garda Dempsey and a student Garda McCartney. He had been observed by Garda Collins for a twenty minute period and had taken nil by mouth. At 00:12 Garda Collins introduced the accused to the intoxilyzer operator, Garda Dempsey, and was present when Garda Dempsey made requirements pursuant to s. 13(2) of the Road Traffic Act 1961 to 1994 for the purposes of breath test, and required two specimens of breath from him. The accused provided a sample of his breath with the result of 64 mgs. of alcohol per 100 mls. of breath. A copy of that breath specimen was handed in as evidence to the District Judge at the hearing of the prosecution.(d) Garda Paul Dempsey gave evidence that he was on duty at Bridewell garda station on the night and morning in question. While on duty he had been contacted by Garda Collins who informed him that she had made an arrest and requested him to perform an intoxilyzer breath test on the accused. Garda Dempsey was a qualified operator of the machine designed for measuring the level of alcohol present in breath. He had attended at Pearse Street garda station for the purpose of conducting this test.(e) Garda Dempsey informed the accused he would be conducting the test. He testified that he too got a smell of intoxicating liquor from the accused, stated that he was...

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