Sisk v District Judge O'Neill

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 23 March 2010
• Neutral Citation: [2010] IEHC 96
• Court: High Court
• Date: 23 March 2010

Sisk v District Judge O'Neill

BETWEEN

JOHN SISK

APPLICANT

AND

DISTRICT JUDGE JOHN O'NEILL

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

[2010] IEHC 96

[No. 231 J.R./2009]

THE HIGH COURT

CRIMINAL LAW

Road traffic offences

Drink driving - Failure to provide breath specimens following arrest - Summary trial - Cross-examination of garda witness - Submission that garda failed to follow instructions for use of apparatus - Application for direction of no case to answer - Unlawful detention pending arrival of alcometer - Breach of fair procedures in relation to provision of breath specimens - Whether failure to give reasons for decision to refuse application for direction of no case to answer - Whether failure to give reasons for decision to convict - Nature and extent of duty to give reasons - Entitlement to know reason for conviction - Due process - Summary hearing - Availability of appeal - Comment by trial judge - Wish to hear defendant - Legal representation - Absence of unfairness - DPP v Rooney [1992] 2 IR 7; DPP v McCormack [1999] 4 IR 158; O'Mahony v Ballagh [2002] 2 IR 410; Smith v Ní Chondúin [2007] IEHC 270 (Unrep, McCarthy J, 3/7/2007); Foley v Murphy [2002] IEHC 232 (Unrep, McCarthy J, 2/7/2007); H v Residential Institutions Redress Board [2007] IEHC 381 (Unrep, McCarthy J, 3/1/2007); Nasiri v Governor of Cloverhill Prison [2005] IEHC 471 (Unrep, MacMenamin J, 14/4/2005); Regina v Knightsbridge Crown Court ex parte International Sporting Club (London) Limited [1982] 1 QB 304; Regina v Harrow Crown Court ex parte Dave [1994] 1 WLR 147; English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409; Kenny v Coughlan [2008] IEHC 28 (Unrep, O'Neill J, 8/2/2008); Lyndon v Collins [2007] IEHC 487 (Unrep, Charleton J, 22/1/2007) and R v Galbraith (1981) 73 Crim App Rep 124 considered - Road Traffic Act 1994 (No 7), s 13 - Relief refused (2009/231JR - Kearns P - 23/3/2010) [2010] IEHC 96

Sisk v Judge O'Neill

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 2006 S18

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC & TRANSPORT ACT 2006 S1(B)

ROAD TRAFFIC ACT 1994 S12(1)

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S17

DPP v ROONEY 1992 2 IR 7 1993 ILRM 61 1992/6/1931

DPP v MCCORMACK 1999 4 IR 158 2000 1 ILRM 241 1999/8/1965

DE BLACAM DRUNKEN DRIVING & THE LAW 3ED 2003 PARA 4.35

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC ACT 1994 S12(1)(C)

O'MAHONY v JUDGE BALLAGH & DPP 2002 2 IR 410 2001/19/5350

SMITH v JUDGE NI CHONDUIN UNREP MCCARTHY 3.7.2007 2007/56/12114 2007 IEHC 270

F (S) v JUDGE MURPHY & DPP 2008 1 IR 619 2007/24/4877 2007 IEHC 232

HAYDE v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP MCCARTHY 3.10.2007 2007/28/5782 2007 IEHC 381

NASIRI v GOVERNOR OF CLOVERHILL PRISON UNREP MACMENAMIN 14.4.2005 2005/43/9116 2005 IEHC 471

R v KNIGHTSBRIDGE CROWN COURT, EX PARTE INTERNATIONAL SPORTING CLUB (LONDON) LTD & ANOR 1982 QB 304 1981 3 WLR 640 1981 3 AER 417

R v HARROW CROWN COURT, EX PARTE DAVE 1994 1 WLR 98 1994 1 AER 315

ENGLISH v EMERY REIMBOLD & STRICK LTD 2002 1 WLR 2409 2002 3 AER 385

KENNY v JUDGE COUGHLAN & DPP UNREP O'NEILL 8.2.2008 2008/33/7191 2008 IEHC 28

LYNDON v JUDGE COLLINS UNREP CHARLETON 22.1.2007 2007 IEHC 487

CONSTITUTION ART 38.1

R v GALBRAITH 1981 1 WLR 1039 1981 2 AER 1060 1981 73 CR APP R 124

ARCHBOLD & RICHARDSON ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 2001 PARA 4.295

ARCHBOLD & RICHARDSON ARCHBOLD CRIMINAL PLEADING EVIDENCE & PRACTICE 2001 PARA 4.296

1 JUDGMENT of Kearns P. delivered on the 23rd day of March, 2010.

RELIEF SOUGHT

2 On the 2nd March, 2009, this Court (Peart J.) granted leave to the applicant to apply by way of judicial review to seek an order of certiorari quashing the order of conviction and sentence made in respect of the applicant by the respondent District Judge on the 16th February, 2009. This order reflected a breach by the applicant of s.13(2) of the Road Traffic Act 1994 ("the Act of 1994"), as amended by s.18 of the Road Traffic Act 2006. This section provides for the offence of failing to comply with a requirement made by a garda under s.13(1)(a) of the Act of 1994, as amended by s.1(b) of the Road Traffic and Transport Act 2006 to provide two breath specimens following arrest, by exhaling into an apparatus for determining the concentration of alcohol in the breath.

THE FACTS

3 On the 16th February, 2009, the applicant attended his summary trial in the District Court before the respondent to answer a charge that he had failed to provide two specimens of breath contrary to s.13(2) of the Act of 1994, as amended. The prosecution opened its case. The first witness to be called was Garda Amanda O'Brien. The evidence she gave in the District Court is outlined in the affidavit of Mr. David Fowler, the applicant's solicitor, sworn on the 12th February, 2009, in the affidavit of Mr. Mary Kate Halpin, prosecution solicitor with the office of the notice party, sworn on the 17th June, 2009, and in her own affidavit, sworn on the 24th June, 2009. Her evidence was to the effect that on the evening of the 5th September, 2008, she received a call from Pearse Street Garda Station directing her to attend at the scene of a traffic accident on Schoolhouse Lane in central Dublin. Upon her arrival at the scene she observed a car which had collided with a lorry. The applicant, the driver of the car, informed her that upon exiting the Schoolhouse Lane car park onto Dawson Street, turning left, he had collided with a stationary truck with its loading bay down on the left hand side of the road. Garda O'Brien took the applicant's details and she observed damage to the passenger side of the applicant's vehicle.

4 Garda O'Brien further stated that the applicant informed her that he had consumed three glasses of wine about two hours previously at lunch. She then made a telephone call to Pearse Street Garda Station and requested that an alcometer be brought to the scene in order to perform a roadside breath test. In her own affidavit Garda O'Brien expressly stated that she requested the applicant to remain at the scene until an apparatus for indicating the presence or absence of alcohol in the breath arrived. That this request was in fact made by Garda O'Brien was later confirmed by the applicant in the course of his evidence. When the alcometer arrived the applicant was requested by Garda O'Brien to provide a breath specimen, pursuant to the provisions of s.12(1) of the Act of 1994, which he did. The result of that test was a fail.

5 The applicant was then arrested pursuant to s.49(8) of the Road Traffic Act 1961 ("the Act of 1961") for an offence under s.49(1)(2)( 3) or (4) of the Act of 1961. The applicant was brought to Harcourt Terrace Garda Station, arriving there at 5.58pm. Following the entry of the applicant's details in the custody record, the notice of his rights being given to him by the Member in Charge and a twenty minute period of observation (from 5.58pm to 6.20pm) by Garda O'Brien, the applicant was brought to the doctor's room. There, he failed to provide two breath specimens, having been required to so by Garda O'Brien's colleague, Garda Éanna Cuffe, pursuant to s.13(1)(a) of the Act of 2006. The applicant was later charged with an offence contrary to s.13(2) of the Act of 1994, as amended, for his failure to provide two specimens of breath.

6 Next to give evidence for the prosecution was Garda Cuffe. His evidence to the District Court is also set out in the affidavits of Mr. Fowler, Ms. Halpin and in his own affidavit sworn on the 24th June, 2009. He indicated to the Court that he was a trained operator of the lion intoxilyser, having undergone a course in respect of the use of the machine. He stated that he made a requirement of the applicant in accordance with s.13(1)(a) of the Act of 1994 to provide two breath specimens, explaining that a failure to do so would constitute an offence under s.13(2) of the Act of 1994, as amended, and outlining the penalties on summary conviction to be a fine not exceeding €5,000 and/or imprisonment for a term not exceeding six months or to both. He stated that despite three attempts, the applicant failed to provide a breath specimen, insufficient breath being given by the applicant on each occasion.

7 In cross-examination it was put to Garda Cuffe that he had not followed the instructions given to gardaí for the use of the apparatus as per the Garda manual dealing with the use of the apparatus entitled 'Evidential Breath Test Alcohol Testing Training Course'. The relevant portion of that manual, dealing with the procedure to follow when a breath specimen is not obtained reads as follows:-

"The subject has three minutes to provide each breath specimen if he/she fails to do this during provision of the first breath specimen. The test will end and the instrument will indicate that an adequate specimen has not been provided. The message "specimen 1 incomplete" will be printed on the report

If the subject fails to provide an adequate sample during the second breath specimen the following report will be printed out. "Specimen 2 incomplete".

If either of the above occurs the subject will be given two more opportunities to complete a cycle regarding provision of two acceptable breath specimens"

8 Counsel for the applicant noted that a person has three minutes during which it was possible to provide the first specimen of breath. This was accepted by Garda Cuffe. However, it was then put to him that it appeared that the applicant had only been given three attempts to provide a breath specimen during this three minute cycle, with a large part of this period taken up with Garda Cuffe issuing explanations and...