Oates v District Judge Browne & Other
| Jurisdiction | Ireland |
| Judge | Mr. Justice Charleton |
| Judgment Date | 11 November 2010 |
| Neutral Citation | [2010] IEHC 381 |
| Judgment citation (vLex) | [2010] 11 JIC 1102 |
| Court | High Court |
| Date | 11 November 2010 |
[2010] IEHC 381
THE HIGH COURT
BETWEEN
AND
DPP v JUDGE BROWNE UNREP MCMAHON 9.12.2008 2008/16/3523 2008 IEHC 391
DPP v SMYTH UNREP CCA 18.5.2010 2010 IECCA 34
ROAD TRAFFIC ACT 1994 S21(1)
ROAD TRAFFIC ACT 1994 S17(2)
MCGONNELL & ORS v AG & DPP 2007 1 IR 400 2006/35/7507 2006 IESC 64
MORGAN v JUDGE COLLINS & ORS UNREP O'NEILL 19.3.2010 2010 IEHC 65
CRIMINAL LAW
Drink driving
Evidence - Presumption - Breath sample - Lion Intoxilyser machine - Presumption that reading is correct - Right to disclosure and inspection - Fair procedures - Cross examination - Failure to contradict evidence - Burden of proof - Basis of inspection - Whether respondent should have allowed forensic scientist appointed by applicant to examine machine - Whether right to disclosure unlimited - Whether breach of fair procedures - Morgan v Collins [2010] IEHC 65, (Unrep, O'Neill J, 19/3/2010) followed - People (DPP) v Browne [2008] IEHC 391, (Unrep, McMahon J, 9/12/2008); People (DPP) v Smyth [2010] IECCA 34 (Unrep, CCA, 18/5/2010) and McGonnell v DPP [2007] IESC 64, [2007] 1 IR 400 considered - Road Traffic Act 1994 (No 7), s 21(1) - Road Traffic Act 2006 (No 23) - Application refused (2009/614JR - Charleton J - 11/11/2010) [2010] IEHC 381
Oates v Browne
Facts: The applicant was convicted of drunken driving and argued that his conviction was invalid as the judge hearing his case should have allowed a forensic scientists appointed by him to examine the Lion Intoxilyser machine. On a preliminary application for disclosure of defence Garda statements the district judge granted that application but refused facilities to inspect the machine and declined to order inspection of documents relevant to its servicing. The applicant was twice the legal limit on arrest and did not give any evidence at his trial. S. 21 (1) Road Traffic Act 1994, as amended by the Road Traffic Act 2006, provided for a presumption that a reading produced on analysis of a breath sample by the machine was correct.
Held by Charleton J. that there was no reason to disturb the conviction of the applicant for drunk driving. There was an entitlement to inspect the machine. However, the right to disclosure and inspection of machinery was not an unlimited right. There was no breach of fair procedures in the case.
Reporter: EF.
JUDGMENT of Mr. Justice Charleton delivered the 11th day of November 2010
1. On the 27 th May, 2009, the applicant was convicted in the District Court of drunken driving on a Roscommon road in July, 2008. He argues his conviction is invalid because the judge hearing his case should have allowed a forensic scientist appointed by him to examine the Lion Intoxilyser machine which, in the garda station following on his arrest, produced a reading on his breath sample revealing a concentration of 88 microgammes of alcohol per 100mls of his breath. This is more than twice the legal limit. The applicant did not give evidence at his criminal trial. Nor was any question put to any prosecution witness indicating any reason to doubt the proper functioning of the mechanical device in question. The garda who arrested the applicant on the roadway, Garda Pádraig O'Gara, gave evidence of a random breath test on stopping the applicant, which indicated on a preliminary basis that the applicant was over the limit. He also told the court of trial of a strong smell of intoxicating liquor coming from the applicant. This evidence was not challenged. Nor was there any evidence suggesting that the Lion Intoxilyser machine installed in Roscommon Garda station was not correctly calibrated or that appropriate procedures for using it were not followed.
2. On a preliminary application on the 4 th December, 2008, relating to disclosure to the defence of garda statements, the learned district judge granted that application, but refused facilities to inspect the Lion Intoxilyser machine and declined to order inspection of documents relevant to its servicing and its calibration.
3. That decision by the learned trial judge was correct. My reasons now follow.
4. The applicant has not sworn an affidavit indicating any reason why any court should doubt the result of the scientific test that was carried out mechanically on his breath sample. He has not sworn that on the occasion of his driving and subsequent arrest that he had been teetotal for a relevant period of time. There is nothing in the evidence to indicate that at the time of his arrest that there was any reason to doubt the observation at the roadside of Garda O'Gara or that, on being processed in the garda station, the applicant made any statement in his own interest indicating a line of defence, or even surprise at the high level of the alcohol consumption reading. There has thus been no engagement with the evidence either in this Court, or before the learned district judge, which would reasonably raise any prospect that the prosecution case was incorrect either through its own inherent weakness or through the proffering of contradictory evidence on behalf of the defence. The applicant bears the burden of showing that his conviction for drunken driving should be quashed by an order of certiorari. He claims a failure by the court of trial to follow the constitutionally mandated procedures which would allow him to fairly explore the prosecution case. There has been no breach of fair procedures in this case. There was no engagement by the applicant with the evidence and nor did he exercise his right to present any contradictory evidence.
5. The right to disclosure and the inspection of machinery is not an unlimited or automatic right. Ordinary disclosures should be made by the prosecution in respect of material which is relevant to their case or to any potential defence that might reasonably arise in the course of the evidence. In DPP v. Browne [2008] I.E.H.C. 391, (Unreported, High Court, McMahon J., 9 th December, 2008), an elaborate series of applications were made to the District Court to challenge proposed mechanical evidence that a man who was accused of speeding had been driving in excess of 100km per hour. In the course of his judgment, McMahon J. made it clear that it is for the District Court judge in any criminal prosecution to determine whether it is necessary in the interests of justice and fair procedures for the accused to be furnished prior to the trial with particular information. The same observation applies to any inspection facilities that may be sought in relation to a machine for testing alcohol consumption through breath sampling. There has to be a reason for disclosure beyond material gathered in the ordinary way in the investigation of a crime. Why an extension into testing mechanical devices should be entertained has to be stated, and it has to be in some way related to the evidence to be given at the trial either for the prosecution or the defence. In the course of his judgment McMahon J. summarised the law in relation to disclosure and fair procedures in the following way:-
"McCarthy J. (as he then was) in the People (Director of Public Prosecutions) v. Tuite [1983] 2 Frewen 175 states the general principal with exceptional clarity:-"
'The constitutional right to fair procedures demands that the prosecution be conducted fairly; it is the duty of the prosecution, whether adducing such evidence or not, where possible, to make available all relevant evidence, parol or otherwise, in its possession, so that if the prosecution does not adduce such evidence, the defence may, if it wishes, do so.' (At. 180 - 181)
It is important to emphasise, therefore, that the right to disclosure is not an unlimited one. It should be available if it is necessary to ensure a fair trial and fair procedures and where justice demands it. It also only extends to relevant evidence which is in the prosecution's possession. In determining what is relevant, it is helpful to bear in mind the indicators specified by Denham J. in Director of Public Prosecutions v. Gary Doyle [1994] 2 I.R. 286. Finally, in determining what is just in cases such as this, one must appreciate that justice is not only about the rights of the accused. There is also the public interest in the successful prosecution of offences to be taken into account and, in the context of summary proceedings where it is intended that justice should be dispensed in a simple and speedy manner, inordinate expense must be avoided. Commonsense and proportionality are also factors which have to be considered in the weighing exercise which the District Court judge must undertake in exercising his discretion.
In addition to the above considerations it is clear that a basis for any such application must be properly established.
'Normally, therefore, a basis would have to be laid before a relevant complaint of non-preservation or refusal of permission to inspect was made.' ( Per Geoghegan J., in Whelan v. Kirby [2005] 2 I.R. 30 (at p. 44))
In relation to disclosure, the Court of Criminal Appeal in the Director of Public Prosecutions v. McCarthy (Unreported, 25th July, 2007) made the following statement:-
'The court is satisfied, however, that the obligations of disclosure are not limitless nor are they to be assessed in a vacuum or upon...
To continue reading
Request your trial
-
Oates v Browne
...High Court judgment in this case. 33 I agree with what is said by the learned High Court Judge in this case at para. 9 of his judgment ( [2010] IEHC 381): ?A certificate showing the reading is admissible by virtue of s.17(2) of the Act. If the presumption were not rebuttable this statutory......
-
A critical assessment of the duty of District Court judges to give reasons
...trial judge had failed to address the arguments put forward by counsel for the accused. At the conclusion of the 4Oates v. Browne & anor [2010] IEHC 381 5Ibid, para 5 6Oates v District Judge Browne & anor. [2016] IESC 7, para. 54 7[2007] 1 IR 400 hereafter “McGonnell” 8[2005] 2 IR 30 hereaf......