Power v Circuit Judge Hunt & DPP

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Iseult O'Malley
Judgment Date18 April 2013
Neutral Citation[2013] IEHC 174
Date18 April 2013
Docket Number[2012 No. 273 JR]

[2013] IEHC 174

THE HIGH COURT

273JR/2012
Power v Circuit Judge Hunt & DPP
JUDICIAL REVIEW

Between

JAMES POWER
Applicant
-and-
CIRCUIT JUDGE ANTHONY HUNT and THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondents

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1994 S19

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1994 S18

ROAD TRAFFIC ACT 1994 S9

ROAD TRAFFIC ACT 1994 S19(1)

ROAD TRAFFIC ACT 1994 S19(3)

ROAD TRAFFIC ACT 1994 S19(4)

ROAD TRAFFIC ACT 1994 S9(1)

ROAD TRAFFIC ACT 1994 S21(2)

ROAD TRAFFIC ACT 1994 S21(3)

ROAD TRAFFIC ACT 1994 (PART III) (AMDT) REGS 2001 SI 173/2001

ROAD TRAFFIC ACT 1994 S21

ROAD TRAFFIC ACT 1994 PART III

ROAD TRAFFIC ACT 1968 PART V

DPP v CANAVAN 2007 3 IR 160 2007/17/3437 2007 IEHC 46

DPP v KEMMY 1980 IR 160 1980/5/833

DPP (GARDA ROWAN) v ENNIS UNREP SUPREME 6.12.2011 2011/17/4026 2011 IESC 46

SWEENEY v DISTRICT JUSTICE FAHY UNREP O'KEEFFE 27.4.2009 2009/54/13530 2009 IEHC 212

DPP (GARDA IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S6(1)

INTERPRETATION ACT 2005 S18

CRIMINAL LAW

Road traffic offences

Statutory interpretation - Judicial review of conviction for driving under the influence of intoxicant - Certification of analysis of blood or urine samples for alcohol or drugs - Analysis conducted in two stages as test for alcohol different to test for drugs - First certificate certified nil alcohol in sample of applicant - Second certificate certified cocaine present in sample of applicant - Second certificate adduced in evidence in prosecution of applicant - Nature and purpose of certificate evidence in criminal cases - Certificates rendering admissible in specified proceedings otherwise hearsay evidence - Whether certificate not adduced in evidence by prosecution was certificate for purpose set out in act - Whether intrinsically wrong to have two certificates in existence relating to procedures adopted - Whether one valid certificate only could be given under section - Whether second certificate valid - Whether second certificate admissible into evidence - Proper interpretation of Road Traffic Acts - DPP v Kemmy [1980] IR 160; DPP v Ennis [2011] IESC 46, (Unrep, SC, 6/12/2011); Sweeney v Fahy [2009] IEHC 212, (Unrep, O'Keeffe J, 27/4/2009) and Ivers v Murphy [1999] 1 IR 98 considered - DPP v Canavan [2007] IEHC 46, [2007] 3 IR 160 distinguished - Road Traffic Act 1994 (Part III) (Amendment) Regulations 2001 (SI 173/2001) - Road Traffic Act 1961 (No 24), s 49(1) - Road Traffic Act 1994 (No 7), ss 10, 19 and 21 - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4), s 6(1) - Interpretation Act 2005 (No 23), s 18 - Relief refused (2013/273JR - O'Malley J - 18/04/2013) [2013] IEHC 174

Power v Judge Hunt and DPP

Facts: The applicant was convicted of driving under the influence of an intoxicant. Two certificates of the Medical Bureau of Road Safety had been provided, one indicating nil alcohol and the other recording the presence of cocaine. The certificates were issued pursuant to s. 19 Road Traffic Act 1994 and the proceedings related to an application for judicial review as to the interpretation of s. 19. The question was whether the prosecution could prove that the applicant was driving under the influence of an intoxicant pursuant to one or two certificates. The applicant alleged that only one certificate could be given under the section.

Held by O" Malley J. in refusing the reliefs sought, that there was nothing wrong with having two certificates relating to the procedures adopted. Each certificate established compliance with the statutory requirements in so far as it was necessary to ground its own admissibility as to the truth of its contents

1

Judgment of Ms. Justice Iseult O'Malley delivered the 18th April, 2013.

Introduction
2

1. This case arises out of the conviction of the applicant by the first named respondent for the offence of driving under the influence of an intoxicant to such an extent as to be incapable of having proper control of his vehicle, as provided for in s. 49(1) of the Road Traffic Act, 1961 as amended. "Intoxicant" includes alcohol, drugs and any combination of drugs or drugs and alcohol.

3

2. The date of the alleged offence was the 15 thJune, 2008. Having been convicted in the District Court the applicant appealed to the Circuit Court, where the conviction was affirmed by the first named respondent on the 23 rd March, 2012.

4

3. Leave to seek judicial review was granted on the 26 thMarch, 2012. The Statement of Grounds sets out a number of different issues arising out of the trial of the applicant but only one point was pursued at the hearing. This turns on the interpretation of s. 19 of the Road Traffic Act, 1994, a provision concerned with the certification by the Medical Bureau of Road Safety ("the Bureau") of its analysis of blood or urine samples for alcohol or drugs.

5

4. In this case, the Bureau forwarded a certificate in June, 2008 stating that the applicant's sample contained nil alcohol. Some weeks later, in August, 2008, a second certificate was forwarded recording the presence of cocaine in the sample. Both certificates were issued pursuant to the provisions of s. 19. The applicant was charged with the offence under s. 49(1) as amended and the second certificate was adduced in evidence as part of the prosecution case.

6

5. In brief, the applicant says that only one certificate can be given under the section, that in this case the one relating to alcohol was the first, and therefore the only valid one, and that the learned trial judge erred in law in admitting the contents of the second one into evidence.

7

6. The legislation has been amended in some respects since 2008 but for the purposes of this case, obviously, all references are to the Act as it stood at the relevant time.

Statutory provisions
Section 49(1) of the Road Traffic Act, 1961 (as inserted by s. 10 of the Road Traffic Act, 1994 )
8

(a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.

9

(b) In this subsection 'intoxicant' includes alcohol and drugs and any combination of drugs or of drugs and alcohol.

10

7. The Act makes provision for the arrest without warrant of a person who, in the opinion of a member of An Garda Síochána, is committing or has committed an offence under the section and for the taking of specimens from a person so arrested by a designated doctor. No issue is taken in this case in relation to these procedures and nothing turns on these provisions.

11

8. Section 18, as it read at the time, provided for the division of the specimen into two parts; the placing of each part into a sealed container, the offer of one to the suspect, the completion of the prescribed forms and the forwarding of specimens to the Bureau. Again, no issue is raised in the case concerning this procedure.

12

9. On the 27 thJune, 2008 a certificate was issued by the Bureau under section 19 of the Act certifying that the sample of the applicant's blood contained a concentration of nil milligrammes of alcohol per 100 millilitres of blood. On the 13 thAugust, 2008 a further certificate was issued under section 19 certifying that the sample of blood contained cocaine.

13

10. At the applicant's trial the prosecution adduced evidence of his driving on the date in question and put in the second certificate. The first certificate appears to have been given to the applicant by way of disclosure. It was not relied upon for any purpose by the prosecution but was put into evidence by the defence in order to make the argument now under consideration.

14

11. The learned trial judge accepted the second certificate as valid and convicted the applicant. Reading s.19 in the light of s. 9, he held that the Bureau was entitled to analyse for alcohol and drugs, one test being carried out after the other.

Section 19 of the Road Traffic Act, 1994 - subsections (1), (3) and (4)
15

(1) As soon practicable after it has received a specimen forwarded to it under section 18, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.

16

(2) [Irrelevant]

17

(3) As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which the specimen analysed was forwarded a completed certificate in the form prescribed for the purpose of this section and shall forward a copy of the completed certificate to the person who is named on the relevant form under section 18 as the person from whom the specimen was...

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4 cases
  • DPP v Avadenei
    • Ireland
    • Court of Appeal (Ireland)
    • 10 May 2016
    ...The Director of Public Prosecutions v. Kennedy [2009] IEHC 361 (Unreported High Court, McMahon J,, 17th July, 2009); Power v. Hunt [2013] 3 I.R. 709; and The Director of Public Prosecutions (Moyles) v. Cullen [2014] IESC 7 (Unreported Supreme Court, Fennelly J., 18th February, 2014). 19 ......
  • Sweeney v District Judge Fahy
    • Ireland
    • Supreme Court
    • 31 July 2014
    ...such failure. 21 Significant reliance is also placed on the case of Power v. Judge Anthony Hunt and The Director of Public Prosecutions [2013] IEHC 174 where ss. 19 and 21 of the 1994 Act were discussed. O”Malley J. in that case, where the lapse of time between the two certificates was six ......
  • Health Products Regulatory Authority v Rossi
    • Ireland
    • High Court
    • 4 November 2019
    ...be stated in the certificate, the defence is not disadvantaged as all such evidence may be tested. In Power v. Circuit Judge Hunt & DPP [2013] 3 I.R. 709, O'Malley J. observed that the certificate in issue in that case was given evidential status only for the purposes of the specified proce......
  • DPP (Garda Mahon) v Avadenei
    • Ireland
    • High Court
    • 21 September 2015
    ...held to be non fatal in cases such as Somers and O' Neill. 40 40. The nature of certificate evidence was considered in Power v. Hunt [2013] IEHC 174 where O'Malley J. observed (at p. 5): "The sole point [of a certificate] is to make admissible what would otherwise be hearsay. In such cases,......

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