O'Regan v DPP & MacGruairc

• Jurisdiction: Ireland
• Judge: MR JUSTICE FRANCIS D MURPHY
• Judgment Date: 20 July 1999
• Neutral Citation: [1999] IESC 59
• Court: Supreme Court
• Date: 20 July 1999

[1999] IESC 59

THE SUPREME COURT

BARRINGTON J

MURPHY J

BARRON J

236/98

272/98

O'REGAN v. DPP & MACGRUAIRC

BETWEEN:

PAUL O'REGAN

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE UINSINNMACGRUAIRC

RESPONDENTS

Citations:

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S51(A)

ROAD TRAFFIC ACT 1994 S18

ROAD TRAFFIC ACT 1994 S19

R V OLIVA 1965 49 CAR 298

DPP V DOYLE 1994 1 ILRM 529

Synopsis

Criminal Law

Criminal; road traffic; appellant charged with road traffic offences; second named respondent trial judge refused to require the first named respondent to call as a witness a representative from the Medical Bureau of Road Safety; appellant sought an Order of Prohibition in High Court to prevent respondent from proceeding further with trial; High Court affirmed right of appellant to call such a witness in proceedings in District Court but refused Order of Prohibition; appellant appeals refusal of application for prohibition; respondent cross-appeals award of costs made against them other than those incurred in relation to ex parte application; whether, to reveal the whole truth on matters in issue, such a witness must be called by the prosecution, thereby facilitating his cross-examination by the defence; whether by completing prescribed form under s.18, Road Traffic Act, 1994, such a witness became a witness for the prosecution and thus liable for cross-examination by the defence; whether is a rule of law that persons from whom statements of evidence had been made should be called as witnesses to facilitate cross-examination by the defence; whether trial is fundamentally flawed; whether High Court erred in ruling that trial should continue before second named respondent.

Held: Appeal and cross-appeal dismissed.

O'Regan v. DPP - Supreme Court: Barrington J., Murphy J., Barron J. - 20/07/1999 - [2000] 2 ILRM 68

A doctor who fills out a prescribed form under the Road Taffic Acts does not thereby become a witness for the prosecution who should be tendered for cross-examination. While the second respondent erred in ordering that the appellant could not call the Doctor who took his sample as a witness there was no obligation on the first respondent to tender him, or anyone else, as a witness subject to the overriding obligation not to mislead the Court or suppress evidence which might be of assistance to the defence. The Supreme Court so held in dismissing the appeal and cross-appeal and further saying that the High Court order as to costs was a proper exercise of judicial discretion which would not be interfered with.

1 JUDGEMENT OF MR JUSTICE FRANCIS D MURPHYDELIVERED THE 20TH DAY OF JULY, 1999

2 In the written submissions to this Court made on behalf of the Appellant the issue raised by the appeal was identified in the followingterms:-

"Whether in a criminal prosecution the Director of Public Prosecutions is under a duty to call as a witness or tender for cross-examination all available witnesses who can give evidence directly material to the issues in the prosecution; and, in particular, to call Dr. Prendiville as a witness or tender him for cross-examination in the instant prosecution; and whether, the Director of Public Prosecutions having failed to do so, the learned District Court judge should have called the doctor as a witness to allow him to be corss-examined on behalf of the applicant."

3 The circumstances in which that and associated issues arose are as follows. By a summons dated the 5th day of December, 1996 the Appellant was charged with offences under section 49(2) of the Road Traffic Act, 1961(as amended) and section 51(A) of the Road Traffic Act 1961(as amended). In summary, these were charges alleging that the Appellant had an excessive concentration of alcohol in his blood and drove a mechanically propelled vehicle in the City of Cork without reasonable consideration on the 18th May, 1996.

4 The trial of those charges was heard by Judge Uinsinn MacGruairc, the secondly named Respondent, in a trial which commenced on the 13th March, 1997. The Appellant was represented by Mr Denis O'Sullivan, Solicitor. Evidence was given by four members of the Garda Siochana as to the manner of the Appellant's driving; the suspicions aroused, his arrest and the circumstances in which and the times at which blood sample were taken from the Appellant by Dr. Prendiville. Evidence was given by Garda Kilroy that he forwarded one blood sample by registered post to the Medical Bureau of Road Safety and that subsequently he received from that Bureau a certificate showing a concentration of 221 mg of alcohol per 100 ml of blood. That certificate was handed into Court. Neither Dr Prendiville nor any witness from the Bureau was present in Court or tendered as a witness on behalf of the prosecution.

5 At the conclusion of the prosecution case, the solicitor on behalf of the Appellant sought a direction on the grounds that there had been delay in the issue and service of the summons. The Application wasrefused.

6 Apart from the application, the cross-examination by Mr.O'Sullivan of the garda witnesses had indicated a variety of challenges to the prosecution case. In particular it was putexplicitly to the Gardai that the Appellant was arrested in or about 11.15 pm and not at or about 12.50 am as sworn by the arresting officers. It was put bluntly to Garda Quinn that he had committed perjury and that he had placed the time of arrest at a later hour so as to bring the taking of a sample within the three hour period from the time of driving required by the Road Traffic Act. It was clearly established - and not dispute - that the sample was taken by Dr Prendiville at 2.15 am. Again, it was put to Garda Mullane, who was the observed in the car driven by Garda Quinn, that the record made by him of the time of arrest had been falsified. The cross-examination raised two further issues which were emphatically denied by the prosecution witnesses. First, that an effort had been made by Garda Kilroy, who was on duty as station orderly of the Mayfield Garda Station on the evening in question, to contact a Dr. O'Callaghan with the implication that some time elapsed or was wasted in an abortive effort to contact a doctor of that name. Secondly, it was contended that the evidence of Garda Kilory to the effect that he had offered on the two blood samples to the Appellant was untrue. It was put to Garda Kilroy that no such sample was offered to the Appellant or accepted by him.

7 When the application on behalf of the Appellant for a direction was refused it was argued on behalf of the Appellant that Dr Prendiville was a necessary and material witness. An adjournment was sought on the specific ground that a witness from the Medical Bureau of Road Safety would be material to establish that both blood samples had been sent to the Bureau and that such a witness and the wife of the Appellant (who opened the communication from the Bureau addressed to the Appellant) would be able to establish that both blood samples had been sent to the Bureau and thus confirm the Appellant's account that no sample had been offered to or accepted by him.

8 The trial Judge...