O'Keeffe v District Judge Mangan & DPP

JudgeMr. Justice Gerard Hogan
Judgment Date21 May 2015
Neutral Citation[2015] IECA 31
CourtCourt of Appeal (Ireland)
Date21 May 2015
O'Keeffe v District Judge Mangan & DPP
[Article 64 Transfer]











[2015] IECA 31

The President

Finlay Geoghegan J.

Hogan J.

Ryan P.

Appeal No. [499/2014]


Crime & sentencing – Road traffic – Intoxication – Evidence – Taking of speciments – Appeal – Road Traffic Act 1994

Facts: The appellant had been convicted of a drink driving offence. He now appealed on the basis the judge had incorrectly applied s 18 of the Road Traffic Act 1994 in respect of whether the appellant had been notified in writing of his rights in respect of the taking of a specimen of bodily fluids. He contended the judge had incorrectly called further evidence from a State witness when the State's case had closed.

Held by Ryan P, Hogan J also giving a judgment, that the appeal would be dismissed. The Court was in agreement with the High Court that the District Judge had not compromised the appellant?s rights in any way. In respect of technical or procedural matters, a judge had discretion to permit further evidence where appropriate.


1. This is an appeal by Mr. O'Keeffe against the dismissal by the High Court of his application for judicial review of a conviction under s. 49, sub-sections (1) and (6)(a) of the Road Traffic Act 1961 (as amended).


2. The case was heard at Ennis District Court by Judge Mangan, the first respondent, on 28 th September 2011. Mr. O'Keeffe was charged that on 1 st March 2010 in Killaloe, County 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.


3. The issue in the appeal concerns the correctness of the respondent judge's approach to a question that arose in the case before him concerning compliance with s. 18 of the 1994 Road Traffic Act. That provision was subsequently replaced but is the relevant section for the case before the judge of the District Court. The section prescribes the procedure for taking specimens of blood and provision of specimens of urine from and by persons arrested under s. 49. Sub-section (1) provides that the designated doctor who has taken the sample of blood or urine divides the specimen into two parts, places each part in a container which he forthwith seals and then he completes the prescribed form. Sub-section (2) provides that the member of the Garda Síochána then offers the person one of the sealed containers "together with a statement in writing indicating that he may retain either of the containers". Sub-section (3) deals with the submission of the sample to the Bureau by the member of the Garda Síochána. Sub-section (4) provides as follows:

"In a prosecution for an offence under this Part or under Section 49 or 50 of the Principal Act, it shall be presumed until the contrary is shown that sub-sections (1) to (3) have been complied with."


4. In this case, the prosecuting Garda gave evidence saying that s. 18(1) and (2) of the Act had been complied with. The defending solicitor, Mr. Herbert, whose affidavit grounds the application for judicial review, cross-examined the Garda. He directed questions to events that happened prior to the arrest of Mr. O'Keeffe with which this Court is not concerned on the appeal. He turned then to another topic and asked the Garda to explain exactly how she had complied with s. 18(1) and (2) of the Road Traffic Act 1994. The Garda said that after the doctor had taken the sample of urine, he divided the specimen into two and placed each part into a container and sealed each. She said that she offered the applicant, Mr. O'Keeffe, one of the sealed containers which he accepted. Mr. Herbert says that the Garda went no further in her evidence and he closed his questioning.


5. Mr. Herbert sought a direction from the judge on the basis that she had asked the applicant questions prior to caution, whereupon the judge asked the Garda directly whether she had formed her opinion when she asked Mr. O'Keeffe the particular question and the Garda replied that she had not.


6. Mr. Herbert then sought a direction on another ground, namely, that the procedures followed in taking the sample from Mr. O'Keeffe were not in accordance with the 1994 Act, in that the Garda had failed to provide Mr. O'Keeffe with a statement in writing of his rights. In the case of a urine sample, this was apparently a yellow slip of paper. The solicitor submitted that this was a specific requirement under the section and he referred to the High Court decision of McCarron v. Judge Groarke & DPP, and he went on to say that the presumption of compliance with the Act had been rebutted.


7. The judge rejected the first ground on which the direction was sought, namely, the questioning of Mr. O'Keeffe prior to arrest. Then the judge directly addressed the prosecuting Garda and asked if she had given the slip of paper to Mr. O'Keeffe or not, notwithstanding Mr. Herbert's objection to this question on the basis that the State case had closed and the judge could not question the witness on her proofs thereafter. The judge said that in the case of an inadvertency, he could afford the witness an opportunity to mend her evidence.


8. The Garda replied to the judge that she did give or had given the relevant slip of paper to Mr. O'Keeffe. The judge proceeded to hold against the defence submissions and convicted Mr. O'Keeffe. He imposed a €500 fine with 150 days to pay and ordered that he be disqualified from driving for a period of four years.


9. The issue in the appeal concerns the question asked by the trial judge of the prosecuting Garda following the submission made by Mr. Herbert that the judge should give a direction on the ground that the statutory procedure had not been complied with.


10. Another point that ought perhaps to be mentioned, simply to indicate that it does not arise for consideration on the appeal, concerns sub-section (4) and the presumption, until the contrary is shown, that sub-section (2), inter alia, was complied with. That arises "until the contrary is shown" but it is less than obvious that the failure of the Garda to mention that she had given the form actually constituted proof that she had not done so. She did not say either way. Mr. Herbert naturally did not ask her whether she had given his client the relevant piece of paper because obviously he feared that the answer would be yes. But the point is that it is questionable, at least, is whether the failure to mention that she had given the form to Mr. O'Keeffe is evidence that she did not do so.

The High Court Decision

11. In his judgment, the learned President decided that the respondent judge did not exhibit bias nor did he behave unfairly in the conduct of the case; the applicant was not denied fair procedures; he was not prejudiced by the tendering of the additional evidence; in the circumstances, the evidence was of compliance with a formal requirement in circumstances where the substance of that requirement had been demonstrated to have been properly and duly carried out.


12. The High Court was satisfied that a District Court judge may in certain circumstances, of his own volition, recall a witness to give formal evidence following the closure of the prosecution case in a summary trial. The Court cited the judgment of Kenny J. in the Supreme Court in Attorney General (Corbett) v. Halford [1976] 1 I.R. 318 in support. See below for the quotation.


13. Kearns P. cited the judgment of O'Higgins C. J. in Director of Public Prosecutions v. Kemmy [1980] I.R. 160, where, at p. 164, he said that it was essential that precise statutory provisions be complied with because otherwise the Court would be trespassing into the legislative field. In his judgment in this case, Kearns P. added the gloss that there was also a consideration of public policy that driving-related offences require to 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 has been complied with, the Court should not automatically dismiss a case merely because some technical or formal attempted proof may not, initially at least, have been addressed in evidence".


14. The Court distinguished the facts of this case from McCarron v. Groarke (Unreported, 4 th April 2000) in which Kelly J. was concerned with the failure, as he was satisfied was established, to follow the statutory scheme which was fatal to the prosecution. The legitimacy of asking further questions did not arise in that case.


15. The High Court held in this case that there was no detriment, prejudice or compromise of any of the rights of the applicant, nor was there any question of obtaining evidence in breach of his constitutional rights. The Court concluded that the facts of this case meant that it fell into the category of a formal matter which it was within the legitimate discretion of the judge to explore or permit to be explored in all the circumstances.


16. Kearns P. also referred to a number of English cases cited by the respondent in submissions and which supported the approach that he adopted in this case. He said that those cases demonstrated an approach to prosecutions of this kind which accorded with commonsense without in any way interfering with fairness.


17. Finally, the learned president rejected a suggestion of objective bias that it was submitted would or might be entertained by an impartial observer in the...

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    ...High Court, Kearns P., 11th June, 2010); The Director of Public Prosecutions v. McDonagh [2009] 1 I.R. 767; and O'Keeffe v. Mangan [2015] IECA 31 (Unreported, Court of Appeal, 21st May, 2015). 44 The respondent has submitted that a great many of the cases relied upon by the appellant are ......
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    ...not contend that there is), it is a matter for the Oireachtas to resolve, citing paras 13–14 of Hogan J's judgment in O'Keeffe v. Mangan [2015] IECA 31. That was a case in which an issue arose as to whether the judge had incorrectly called further evidence from a State witness when the Stat......
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    ...IEHC 20] and does not relate to the merits of the case. In the court of appeal decision of James O'Keeffe and Judge Mangan and the DPP [ (2015) IECA 31] at para. 18 on p.6 Ryan P. discusses the case law relating to circumstances in which a judge may exercise discretion to re-open the prosec......
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