James O'Keeffe v Judge Joseph Mangan and Another

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 18 May 2012
• Neutral Citation: [2012] IEHC 195
• Court: High Court
• Docket Number: [No. 988 J.R./2011]
• Date: 18 May 2012

[2012] IEHC 195

THE HIGH COURT

[No. 988 J.R./2011]

O'Keeffe v Judge Mangan & DPP

JUDICIAL REVIEW

BETWEEN

JAMES O'KEEFFE

APPLICANT

AND

JUDGE JOSEPH MANGAN

FIRST NAMED RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

SECOND NAMED RESPONDENT

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S18

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 13(1)(B)

ROAD TRAFFIC ACT 1994 S18(1)

ROAD TRAFFIC ACT 1994 S18(2)

ROAD TRAFFIC ACT 1994 S13

MCCARRON v JUDGE GROARKE & DPP UNREP KELLY 4.4.2000 2004/33/7688

ROAD TRAFFIC ACT 2010 S15

AG (CORBETT) v HALFORD 1976 1 IR 318

BATES v BRADY 2003 4 IR 111

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S8

DPP v KEMMY 1980 IR 160

DPP (O'BRIEN) v CORMACK 1999 1 ILRM 398

ROAD TRAFFIC ACT 1961 S49

PEOPLE (DPP) v GREELY 1985 ILRM 320

PIGGOTT v SIMS 1973 RTR 15

LEESON v DPP 2000 RTR 385

JOLLY v DPP 2000 CRIM LR 471

DINEEN v DISTRICT JUDGE DELAP 1994 2 IR 228

STATE (HEGARTY) v WINTERS 1956 IR 320

CRIMINAL LAW

Road traffic offences

Drunk driving - Trial - Evidence - Reopening of prosecution case - Urine sample - Evidence of offer of statement in writing that accused could retain one sample - Judicial review - Fair procedures - Bias - Whether trial judge correct in allowing prosecution witness to be recalled - Whether evidence merely technical or essential proof - Whether substance of statutory obligation complied with - Whether evidence initially omitted by prosecution contested by accused - Whether trial judge behaved unfairly - Whether actions of trial judge gave rise to real apprehension of bias - Whether accused prejudiced - The State (Hegarty) v Winters [1956] IR 320; Piggott v. Sims [1973] RTR 15; Attorney General (Corbett) v Halford [1976] 1 IR 318; DPP v Kenny [1980] IR 160; DPP (O'Brien) v McCormack [1999] 1 ILRM 398; Leeson v DPP [2000] RTR 385; Jolly v DPP [2000] Crim LR 471; Bates v Brady [2003] 4 IR 111 approved - People (DPP) v Greely [1985] ILRM 320; Dineen v District Judge Delap [1994] 2 IR 228 and McCarron v Judge Groarke (Unrep, Kelly J, 4/4/2000) distinguished - Road Traffic Act 1961 (No 24), s 49 - Criminal Justice (Public Order) Act 1994 (No 2), s 8 - Road Traffic Act 1994 (No 7), ss 13 and 18 - Road Traffic Act 2010 (No 25), s 15 -Relief refused (2011/988JR - Kearns P - 18/5/2012) [2012] IEHC 195

O'Keeffe v District Judge Mangan

Facts the applicant sought, by way of judicial review, to quash the order of conviction under ss. 49(1) and 49(6)(a) of the Road Traffic Act 1961 and sentence imposed by the first respondent. He contended that the District Judge wrongly allowed a witness to be recalled following the conclusion of the prosecution case whereby he is stated to have unfairly afforded an opportunity to the prosecution to amend or add to earlier evidence of giving the applicant a yellow slip indicating that he had been afforded the opportunity of retaining the second sample in such a way as to comply with the requirements of section 18 of the Road Traffic Act 1994.

Held by Mr Justice Kearns in refusing the relief sought, 1, that a District Court judge could, in certain circumstances, even of his own volition, recall a witness to give formal evidence following the closure of the prosecution case in a summary trial. Attorney General (Corbett) v. Halford [1976] 1 I.R. 318 followed.

2. That where statutes provide for compliance with specific procedures, there was limited opportunity for the exercise of discretion by a judge of the District Court in that regard. Director of Public Prosecutions v. Kemmy [1980] I.R. 160 applied.

3. That public policy required that driving related offences be prosecuted and should not be thrown out willy nilly without good reason. Thus, if the substance of the statutory obligation to comply with certain steps had been complied with, the court should not automatically dismiss a case merely because some technical or formal attendant proof may not, initially at least, have been addressed in evidence. Director of Public Prosecutions (O'Brien) v. Cormack [1999] 1 ILRM 398 applied.

4. That there had been evidence that the particular sample had been given to the applicant. Thus the substantive requirement of section 18 of the Act of 1994 had in fact been complied with and the only omission on the part of the prosecuting garda was merely to confirm that the yellow slip to be handed over in compliance with s. 18 of the Act had, as was the case, been furnished also. In those circumstances, it no detriment, prejudice or compromise of any rights of the applicant could have occurred. The facts of this case suggested that it fell into the category in respect of which a District Judge could, without any unfairness or without descending into the arena, permit the recall of a witness to complete her evidence on a purely formal aspect. McCarron v Groarke distinguished.

Kearns P.

1 This is an application by way of judicial review to quash the order of conviction and sentence imposed by the first named respondent on the applicant on the 28^th of September, 2011 at Ennis District Court in the County of Clare. On that occasion the applicant was convicted under ss. 49(1) and 49(6)(a) of the Road Traffic Act 1961, as amended, of an offence that on 1^st March, 2010 in Killaloe, Co. Clare he drove a mechanically propelled vehicle while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.

2 The central point raised in the judicial review application is that the District Judge wrongly allowed a witness to be recalled following the conclusion of the prosecution case whereby he is stated to have unfairly afforded an opportunity to the prosecution to amend or add to earlier evidence in such a way as to comply with the requirements of s. 18 of the Road Traffic Act1994 (hereafter referred to as 'the 1994 Act').

3 In the affidavit sworn by the applicant's solicitor Mr. Turlough Herbert, the deponent states that Garda Barriscale, who was the sole prosecution witness, gave evidence that on 1^st March, 2010 she was on duty as observer in the Killaloe patrol car when, at approximately 1.10 am, she observed a motor vehicle being driven along Royal Parade in Killaloe. Garda Barriscale gave evidence that the patrol car followed this vehicle, which in her affidavit she said was driving erratically, and signalled the driver to stop by activating the blue lights on the patrol car. She then gave evidence that she spoke to and asked questions of the applicant and that she arrested him pursuant to s. 49(8) of the Road Traffic Acts. She cautioned the applicant in reply to which he stated "I have no drink, I do not drink." The applicant was then conveyed to Killaloe Garda Station.

4 His details were entered into the custody record and a doctor was contacted to attend at the station. Dr. Harhoff arrived at 2.14 am at which point, Garda Barriscale said, that she required the applicant, pursuant to s. 13(1)(b) of the 1994 Act, to give a sample of urine, or at his option, blood. Garda Barriscale gave evidence that she informed the applicant of the penalty for failure or refusal to give a sample. The applicant opted to give a sample of urine. Garda Barriscale stated that the requirements of ss. 18(1) and 18(2) of the 1994 Act were complied with. She further gave evidence that the applicant was released from custody at 2.29 am.

5 She further gave evidence that she received two certificates of analysis from the Medical Bureau of Road Safety for the specimen, one dated 8^th March outlining a "nil" alcohol reading for the specimen and the second dated 19^th April, 2010 outlining the presence of a cannabis class drug in the specimen.

6 Mr. Herbert further deposes that, during the course of cross-examination, Garda Barriscale corrected her evidence in relation to the requirements of s.13 of the 1994 Act and said that she had required the applicant to give a sample of blood or at his option urine, as opposed to what she had said in her direct evidence. He says that during Inspector Galvin's examination Garda Barriscale asserted that she had complied with the requirements of s.18 of the 1994 Act. In the course of being cross-examined as to how she had complied with the requirements of the section, Garda Barriscale said that after Dr. Harhoff had taken the sample of urine he divided the specimen into two and placed each part into a container and the same was sealed. Garda Barriscale said she offered the applicant one of the sealed containers which he accepted.

7 The prosecution having closed its case, Mr. Herbert then proceeded to seek a direction from the first named respondent on the basis that Garda Barriscale had asked the applicant certain specific questions prior to caution. This particular point was rejected by the trial judge and was not further pursued in these judicial review proceedings.

8 Mr. Herbert then proceeded to seek a direction from the first named respondent on the basis that the procedures followed in taking the applicant's sample were not in accordance with the provision of the 1994 Act in that Garda Barriscale had failed to provide the applicant with a slip of paper which under the section was required to be given for the purpose of informing him of his right to retain one of the samples. He submitted that this was a specific requirement under the section and relied upon the decision of Kelly J. inMcCarron v. Groarke (Unreported, High Court, Kelly J., 4^th April, 2000).

9 The first named respondent proceeded to consider this point by recalling Garda Barriscale and asking her if she had given the slip in question to the applicant or not. Mr. Herbert objected to this line of questioning, submitting that the State's case had closed and that the learned trial judge could not question the witness on her proofs after...