Oates -v- Judge Browne & Anor, [2010] IEHC 381 (2010)

Docket Number:2009 614 JR
Party Name:Oates, Judge Browne & Anor
Judge:Charleton J.







JUDGMENT of Mr. Justice Charleton delivered the 11th day of November 2010

1. On the 27th 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 4th 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.

Engagement with the Evidence

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., 9th 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...

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