Giles Kennedy v DPP and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 28 March 2014
• Neutral Citation: [2014] IEHC 200
• Docket Number: Record No. 441 JR/2012
• Court: High Court
• Date: 28 March 2014

[2014] IEHC 200

THE HIGH COURT

Record No. 441 JR/2012

Kennedy v DPP & Judge Heneghan

JUDICIAL REVIEW

Between/

GILES KENNEDY

Applicant

-and-

THE DIRECTOR OF PUBLIC PROSECUTIONS AND HER HONOUR JUDGE MARGARET HENEGHAN

Respondents

ROAD TRAFFIC ACT 1994 S12(1)(A)

ROAD TRAFFIC ACT 1994 S12(2)

ROAD TRAFFIC ACT 2006 S18

ROAD TRAFFIC ACT 1994 S12(3)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S13(1)

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

Judicial Review – Nondisclosure – Breathalyzer test – Relevance – Legal Professional Privilege – Road Traffic Act 1994 – Garda – Certiorari

The background of this case involves the applicant being convicted of failure to provide a breath sample under the provisions of the Road Traffic Act, 1994. The applicant sought judicial review reliefs in relation to the continued prosecution of the offences. Firstly because the first named respondent failed to disclose to him in its entirety a document concerning the operation of the Intoxilyser utilized in his case and Secondly the applicant sought certiorari in respect of the decision of the second named respondent, made in a preliminary hearing, that he was not entitled to the document in its entirety. After initially lodging appeal against the conviction, the judicial review proceedings were brought before O'Malley J. in the High court.

O”Malley J analyzed the procedural history and submissions from the parties. In the first circuit court hearing the applicant argued the requirement of disclosure of specific documentation containing instruction as to the use of the Intoxilyser and the best use in the event of failure of the machines to obtain a specimen. The prosecution held that he was only entitled to a redacted version of the document. The applicant articulated that refusal to furnish the document in its entirety deprives the applicant of any reasonable possibility of establishing that the statutory discretion of the Garda and added that without the document it would not be possible to cross-examine the Garda witness as to whether he felt that he had any options in relation to the procedure. Additionally the applicant submitted that the second named respondent was wrong in law when they claimed the legal professional privilege meant that disclosure could be justifiably barred. Disagreeing with the respondents, the applicant claimed that the document clearly related to the investigative stages of a case rather than the litigation stage and any privilege, which might have inhered in the document, had in effect been waived, through the original acceptance in the District Court that the defence was entitled to the documentation. After careful consideration, O”Malley J. focused on the relevancy of the documentation in question. Concluding that if it is not relevant, the issue of privilege is not material. O”Malley J. was left unconvinced by the applicant”s demonstration that the non-disclosure of the full document has created a real risk of an unfair trial. The applicant did not convincingly demonstrate that the redacted parts are relevant to an issue in the trial such that he cannot have a fair trial without sight of them. O”Malley held that the reliefs sought by the applicant be refused.

Ms. Justice Iseult O'Malley

1 The applicant was convicted in the District Court on two charges relating to failure to provide a breath sample under the provisions of the Road Traffic Act,1994. He lodged an appeal against the convictions but now seeks various judicial review reliefs in relation to the continued prosecution of the offences, by reason of the refusal of the first named respondent to disclose to him in its entirety a document concerning the operation of the intoxilyser utilised in his case. He also seeks certiorari in respect of the decision of the second named respondent, made in a preliminary hearing, that he was not entitled to the document in its entirety.

2 The applicant was charged that he:

3 (i) On the 25^th of April, 2007, at East Wall Road, Dublin 1, being a person in charge of mechanically propelled vehicle, registered number 01 D 57713, in a public place, having been required by Garda David Coyne a member of An Garda Síochána, pursuant to s. 12(l)(a) of the Road Traffic Act, 1994, to provide a specimen of his breath, did fail to comply forthwith with the said requirement contrary to s. 12(2) of the Road Traffic Act, 1994 as amended by s. 18 of the Road Traffic Act, 2006 and that he

4 i (ii) On the 25^th April, 2007 at Store Street Garda Station, being a person arrested under s. 12(3) of the road Traffic Act, 1994, having been required by Garda James Smith a member of An Garda Síochána to provide two specimens of his breath, did fail to comply with the said requirement contrary to s. 13(2) of the Road Traffic Act, 1994 as amended by s.18 of the Road Traffic Act, 2006.

5 3. The prosecution evidence relating to the first charge was given by Garda David Coyne who, having stopped the applicant at a checkpoint, required him to provide a preliminary sample of his breath under s. 12 of the Road Traffic Act,2003. Garda Coyne produced a Draeger alcolyser machine and explained how it was to be used. According to the Garda statement of evidence (which, in the absence of any indication to the contrary, I take to have been the same as that given in oral evidence) -

"He began blowing into the machine but was not blowing hard. While blowing, he interrupted his breath by inhaling. The machine indicated insufficient volume and I reset it. I explained to Mr. Kennedy that the breath must be a single breath, similar to blowing a balloon, and that breathing back in would empty the balloon. I also explained to him that failure to provide a specimen would result in him being arrested and charged with that specific offence. He again blew into the machine, and again interrupted his breath specimen, again with a reading of insufficient volume. He said that he was trying his best and asked for another attempt. He tried again twice more while sitting in the car, but again failed to provide a specimen of breath. At this stage I asked him to step out of the car and into the side of the roadway if it would help with his breathing and proving [sic] a complete specimen. I informed him that he was not providing a complete specimen due to interrupting his breath and again outlined that he must provide a complete specimen by making a complete breath into the machine without interruption. I told him that he was to make a seal around the mouthpiece and demonstrated the type of breath that he was to provide. He began blowing into the machine again, but this time I could see that he was not making a seal around the mouthpiece and that the breath was being blown out the side of his mouth. He ran out of breath and the machine beeped and showed insufficient volume. I informed Mr Kennedy that he must provide a specimen, and that blowing out the side of his mouth was not providing the specimen. I told him that he must provide a seal around the mouthpiece and blow into the machine in a continuous breath until a specimen was given. He attempted twice more, yet again blew out the side of his mouth. In total, he failed to give a preliminary specimen of breath having made 7 attempts."

6 4. At this point the applicant was arrested and brought to the Garda Station. After the preliminary matters pertaining to the taking of a specimen had been dealt with, Garda James Smith made a requirement of the applicant under s.l3(1)(a) of the Road Traffic Act,1994, as amended, to provide two specimens of his breath by exhaling into a Lion Intoxilyser machine. Garda Smith's evidence as to what happened was as follows:

"I took a spare mouthpiece and demonstrated to Mr. Kennedy how to provide a breath. Mr. Kennedy indicated that he understood this, and indicated to me that he would provide breath specimens. When required to, Giles Kennedy took the breath tube in his left hand and put his mouth around it. He failed to provide a breath specimen. I noted that there was no condensation on the inside of the mouthpiece. I also noted that there was no sound of blowing from Mr. Kennedy. He placed his mouth around the mouthpiece several times, each time providing no breath specimen. I demonstrated again with a breath mouthpiece the manner in which he should provide a breath specimen. He again continued to place his mouth around the breath mouthpiece, but did not blow. I noted that the pressure meter on the Intoxilyser machine showed that there was no pressure from Giles Kennedy's breaths. Giles Kennedy failed to provide any breath specimens, and the Intoxilyser machine printed two Section 17 statements."

7 5. The Intoxilyser procedure appears to have taken about 14 minutes. The applicant was charged with the two offences approximately an hour later, at which point he asked "Is there any chance I could give a sample of blood or urine?"

8 6. Prior to the District Court trial, certain orders or directions were given by that court in relation to disclosure. Specifically, in relation to the Intoxilyser, the applicant received various documents from the prosecution, including documents entitled"Evidential Breath Alcohol Testing Training Course", "Evidential Breath Alcohol Testing Supervisors Supplement" and "Evidential Breath Alcohol Testing Training Course Manual".

9 7. The issue in these proceedings arises from p.41 of one of these documents. The version disclosed to the applicant prior to the District Court hearing instructed the operator of the machine as follows, under the heading "Incomplete Breath Specimen":

"The subject has three minutes to provide each breath specimen if he/she fails to do this...