Morgan v Judge Collins and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 19 March 2010
• Neutral Citation: [2010] IEHC 65
• Date: 19 March 2010
• Court: High Court

[2010] IEHC 65

THE HIGH COURT

[No. 203 J.R./2009]

Morgan v Judge Collins & Ors

John Morgan

Applicant

And

Judge Mary Collins, The Director of Public Prosecutions, Ireland

And

Attorney General

Respondents

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S6(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2006 S18

MCGONNELL v AG 2007 1 IR 400

ROAD TRAFFIC ACT 1994 S13(4)

DPP v BROWNE UNREP MCMAHON 9.12.2008 2008/16/3523 2008 IEHC 391

WHELAN v KIRBY 2005 2 IR 30

DPP v DOYLE 1994 2 IR 286

ROAD TRAFFIC ACT 1994 S17(2)

ROAD TRAFFIC ACT 1994 S21(1)

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S17

DPP v MCCARTHY UNREP KEARNS 25.7.2007 2007/19/3965 2007 IECCA 64

CRIMINAL LAW

Road traffic offences

Drink driving - Fair procedures - Request for disclosure of intoxilyzer maintenance records - Whether obligation on first respondent to disclose - Whether first respondent erred in law in refusing to entertain application - Whether res judicata - Whether first respondent erred in law in refusing to fix relevancy hearing - Whether applicant suffered loss of opportunity to rebut prosecution case - McGonnell v AG [2006] IESC 64 [2007] 1 IR 400; DPP v Browne [2008] IEHC 391 (Unrep, McMahon J, 9/12/2008); Whelan v Kirby [2004] IESC 17 [2005] 2 IR 30; DPP v Doyle [1994] 2 IR 286; DPP v McCarthy [2007] IECCA 64 (Unrep, CCA, 25/7/2007) considered - Relief refused (2009/203JR - O'Neill J - 19/3/2010) [2010] IEHC 65

Morgan v Judge Collins

Facts The applicant was charged with the offence of drunk driving and his solicitor applied in the District Court for disclosure of the maintenance record of the Lyon Intoxilyzer 6000IRL. That application, according to the second named respondent was refused on the grounds of relevancy. A further application for that disclosure was made to the first named respondent, who remanded the case for hearing and stated that any issues regarding disclosure could be raised with the trial judge. The applicant herein sought to challenge that ruling made by the first named respondent. It was submitted on behalf of the second named respondent that the application herein was premature as the applicant was permitted to make an application for disclosure on the hearing date. Furthermore, it was submitted that no evidence was put forward by the applicant suggesting that the intoxilyzer machine was not in working order on the relevant date and consequently, the applicant was obliged to demonstrate the relevance of the maintenance records.

Held by O'Neill J. in refusing the application: That the issue of the relevance of the maintenance records of the intoxilyzer machine was res judicata at the time the case came before the second named respondent and she properly refused the application made by the applicant for disclosure on that basis. Implicit in the ruling made by the first named respondent was that the applicant could at his trial again apply for disclosure of the maintenance record if he could show that it was relevant to his defence and if an order could not be made against the second named respondent an application to halt the proceedings would have to be considered by the court. Consequently, this application for judicial review was premature and should be refused for that reason alone.

Lest the court is wrong in making the foregoing conclusion, the issue of the applicant's entitlement to the disclosure sought was considered. An applicant for disclosure of the maintenance records of the intoxilyzer would have to point to some circumstance which, if established in evidence at trial, would undermine the accuracy of the printout from the intoxilyzer machine in order to show that disclosure of those documents was relevant to that particular case.

Reporter: L.O'S

1. Reliefs Sought

2 1.1 Leave was granted to institute judicial review proceedings by this Court (Charleton J.) on the 23 ^rd February, 2009, to seek the following reliefs:-

1 An order prohibiting the respondents from proceeding with a prosecution against the applicant pursuant to s. 49(4) and 6(a) of the Road Traffic Act 1961, as inserted by s.10 of the Road Traffic Act 1994, as amended by s.18 of the Road Traffic Act 2006 and outlined on Charge Sheet No. 799176 and in the alternative a stay on the District Court proceedings pending the determination of this application.

2 An order of mandamus directing the second named respondent to provide the applicant or his appointed agent with the maintenance record to Lion Intoxilyzer 6000 IRL, serial number B0584 covering the 12 month period preceding the date of the test or for such a period of time as this Court shall deem fit.

2. The Facts

2 2.1 On the 13 ^th September, 2008, the applicant was charged with an offence of drunk driving contrary to s.49(4) and (6)(a) of the Road Traffic Act 1961, as inserted by s.10 of the Road Traffic Act 1994, as amended by s.18 of the Road Traffic Act 2006. The matter came before District Judge Early on the 6 ^th October, 2008. An application was made on behalf of the applicant for the maintenance record of the Lyon Intoxilyzer 6000IRL bearing the serial number B0584 ("the intoxilyzer"). This was refused. The affidavit of Garda Jessica O'Reilly, of Santry Garda Station outlines what occurred at that hearing at para. 7:-

2 2 "7. On 6 ^th October 2008 I appeared in Court 45 to give evidence of arrest, charge and caution. The Applicant's solicitor made an application to have the charge dismissed on the basis that his client had been bailed to attend at 10.30 am but the court did not sit at that time due to the Mass being held to mark the start of term. Judge Early refused the application. The Applicant's solicitor then applied for the maintenance records of the Intoxilyzer machine. Judge Early considered the application and refused it. At this remove in time I cannot recall the content of the debate that occurred or of the reasons given by the Judge but my best recollection is that he held that the Applicant had not established the relevance of the records sought to the particular case. The case was remanded to 16 January 2009 to fix a date for hearing."

3 2.2 A statement to the effect that on the 6 ^th October, 2008, District Judge Early considered an application for a copy of the maintenance records and dismissed it on the grounds of relevancy is also contained in para. 2 of the second named respondent's statement of opposition. No evidence was put forward by the applicant as to what took place at the hearing of the 6 ^th October, 2008, save for an averment in the affidavit of Mr. James Sweeney, the applicant's solicitor, sworn on the 23 ^rd February, 2009, to the effect that an application for the maintenance record to the intoxilyzer was refused at para.6.

4 2.3 On the next occasion the matter came before the District Court, on the 16 ^th January, 2009, a renewed application for the maintenance record of the intoxilyzer was made on the applicant's behalf to the first named respondent on the basis that the applicant would be unfairly prejudiced in the conduct of his defence if denied access to it. The application was opposed by the second named respondent who submitted that the defence had previously made the same application to District Judge Early who had refused it and that the principle of res judicata should be followed. The defence then applied to have the matter adjourned for a relevancy hearing concerning the maintenance record of the intoxilyzer.

5 2.4 Ms. Lisa O'Reilly, solicitor in the office of the second named respondent, in para. 5 of her affidavit, sworn on the 3 ^rd June, 2009, averred that the first named respondent had regard to the note made by District Judge Early on the charge sheet to the effect that the prosecution only had to disclose the statements in the case and the custody record. In para. 6 she averred as follows:-

2 2 "6. Judge Collins indicated that she would remand the case to 27 February 2009 for hearing and she stated that if there were any issues as regards disclosure then those issues could be raised with the trial judge."

The outcome of the hearing of the 16 ^th January, 2009, was summarised by Mr. Sweeney in his affidavit at para. 11 as follows and is largely in accordance with the above:-

2 2 "11. I say that an application was made on behalf of the accused to fix a date for a relevancy hearing into the matter. I say that this application was refused and the matter was fixed for hearing on the 27 ^th day of February 2009 without liberty to the applicant to mention the matter prior to that date."

6 2.5 The applicant's solicitor wrote to the Superintendent of Santry Garda Station and to the second named respondent by letter dated the 28 ^th January, 2009, requesting the maintenance record of the intoxilyzer, to which no response was received.

7 2.6 Leave was granted in these proceedings on the 23 ^rd February, 2009, to challenge the ruling of the first named respondent, refusing to grant the application for the maintenance records of the intoxilyzer to be made available to the applicant and/or refusing to fix a date for a relevancy hearing into that issue.

3. The issues

2 3.1 The first or preliminary issue to be determined in these proceedings is whether these proceedings are premature, in that, the question of whether the applicant will be entitled to disclosure of the maintenance record may be raised at his trial and if relevance to his defence is demonstrated he may be successful in obtaining disclosure of that record or in having the prosecution halted. The substantive issue raised is whether the applicant is entitled to be furnished with the maintenance record of the intoxilyzer to ensure constitutional fairness and to vindicate his right to a fair trial.

4. Counsels' Submissions

2 4.1 Mr. Smyth S.C., for the applicant, submits that he is...