Smith v Ni Chondun & DPP

• Jurisdiction: Ireland
• Judge: MR. JUSTICE McCARTHY
• Judgment Date: 03 July 2007
• Neutral Citation: [2007] IEHC 270
• Court: High Court
• Date: 03 July 2007

[2007] IEHC 270

THE HIGH COURT

DUBLIN

No. 2006/1240 JR

Smith v Judge Ní Chondún & DPP

THOMAS SMITH

Applicant

-V-

JUDGE AINGEAL NI CHONDUN

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Notice Party

ROAD TRAFFIC ACT 1961 S4

ROAD TRAFFIC ACT 1961 S6A

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 S17(2)

ROAD TRAFFIC ACT 1994 S21(1)

DPP v BARNWELL UNREP FLOOD 24.1.1997 1998/15/5319

R v GALBRAITH 1981 1 WLR 1039

R v SHIPPEY 1988 CLR 767

ROAD TRAFFIC ACT 1994 S97

FOLEY v MURPHY & DPP UNREP MCCARTHY 2.7.2007 2007 IEHC 232

O'MAHONY v BALLAGH 2002 2 IR 410

LINDON v COLLINS UNREP CHARLETON 31.1.2007 (EX TEMPORE)

CHRISTIE v LEACHINSKY 1947 AC 573

DPP v WALSH 1980 IR 294

CRIMINAL LAW

Road traffic offence

Fair procedures - Obligation to give reasons - Drunk driving - Submission of no case to answer - Intoxilyzer machine - Order of signatures on statement - Observation of applicant prior to sample - Rebuttal of statutory presumption - Refusal of application for directed acquittal - Entitlement to reasons - Christie v Leachinsky [1947] AC 573 and DPP v Walsh [1980] IR 294 considered - Summary prosecution - Whether reasons necessary for decision on giving evidence -Whether reasons adequate or sufficient - Decision quashed and remitted to District Court (2006/1240JR - McCarthy J - 3/7/2007) [2007] IEHC 270

Smith v Judge Ní Chondúin

The applicant was convicted of the offence known as drunk driving. The applicant applied by way of judicial review for an order of certiorari and a declaration condemning the order on the grounds that the trial judge failed to give adequate reasons for her refusal of a directed acquittal.

Held by McCarthy J. in quashing the decision and remitting it to the District Court for further hearing that the reasons were not adequate.

Reporter: R.W.

1 MR. JUSTICE McCARTHYON TUESDAY, 3RD JULY, 2007

2 THE JUDGMENT OF THE COURT WAS GIVEN AS FOLLOWS:

3 MR. JUSTICE McCARTHY: This is the Judgment of this Court in Thomas Smith -v- Judge Aingeal Ní Chondun, Respondent, and the Director of Public Prosecutions, Notice Party.

4 This is an application, effectively, for a certiori of an order of the District Court made on 6th September 2006. On that day, the Applicant was convicted of that offence commonly known as drunk driving, being an offence contrary to section 4 and 6(A) of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic Act 1964 and as amended by section 23 of the Road Traffic Act 2002.

5 1. Relief is also sought by way of declaration condemning the order on the footing that in failing to give reasons for her refusal of a directed acquittal, the Applicants right to a fair trial was breached. The gravamen of the case is whether or not the learned Respondent failed to give any or any adequate reasons for that refusal.

6 2. I will not set out the facts in extenso in the Judgment but rather refer to them as may be relevant.

7 3. At the close of the prosecution case, counsel on behalf of Applicant submitted that the Applicant had no case to answer on the following grounds to each of which I now turn, namely:

8 In The Director of Public Prosecutions v Thomas Keogh (unreported) Murphy J, 9th February 2004, it had been held that non compliance with the provisions of section 17 of the Road Traffic Act 1994 in respect of a statement issued pursuant to it was fatal to the prosecution case.

9 The member of An Garda Siochana, Garda Brian Kenny, who operated an intoxilyzer machine to take a sample of the Applicant's breath at Pierse Street Garda Station at approximately 1 o'clock on the morning of 8th April 2006, gave evidence that he had signed the relevant statement or statements prior to the time when the Applicant signed.

10 The Act provides that two originals generated automatically by such machine should be signed by both the Garda administering the taking of the sample and the suspect, the Applicant contending that the suspect must be afforded an opportunity to sign first in default of which the Garda would be in breach of the obligation to produce statements which were duly completed and one of which, of course, is provided to the Applicant.

11 This legal proposition was advanced in circumstances where Garda Kenny had given evidence that he had signed the statements before the Applicant.

12 Garda Mulcahy, on the other hand, gave equally clear evidence that the statements were first signed by the Applicant, thus giving rise to a fundamental difference on this issue on the prosecution case. It should be added, however, that Garda Kenny was trained to operate the machine whereas Garda Mulcahy was not, that Garda Kenny had stated (and I paraphrase here) that he invariably signed such certificates first and that Garda Mulcahy had stated his colleague would be in better position to give evidence on the point.

13 A second disputed issue of fact pertained to the question of whether, or to what extent, the Applicant was under observation for the period of 20 minutes immediately prior to the taking of the samples. There is no statutory requirement that a suspect be observed during such a period but, as a matter of evidence, it is commonly regarded as necessary to prove that a suspect has not taken anything by mouth or smoked.

14 Consumption by mouth or smoking during the period in question is conceived to potentially undermine the validity of the result of the test. Garda Kenny agreed in cross-examination that reliance could not be placed on the results where this was so.

15 As to observation, Garda Mulcahy gave evidence that he was adamant he observed the Applicant for the requisite 20-minute period, though he acknowledged that he later made a phone call. This evidence was later relied upon by the Applicant in his application for an acquittal. In this context I should add that Garda Kenny learned only for the first time in cross-examination that the Applicant had made a phone call.

16 This evidence gave rise to submissions grounded on authority, the first of which was based on the order in which signatures were appended to the statements to which I have already referred to. Specifically this was on the basis that the Court could not be satisfied that compliance with section 17(2) of the 1994 Act had been proved beyond a reasonable doubt having regard to the conflict of Garda evidence.

17 Secondly, it was contended that the Court could not be satisfied beyond a reasonable doubt that the 20-minute observation period had taken place, both because of the phone call evidence, if I might describe it as such, and also the fact that the first sample was taken at 1.03 a.m.

18 Lastly, and this is really a point which flows from the evidence as to observation, it was contended that the presumption in section 21(1) of the Act of 1994 as to the evidential status of the statement as to quantity of alcohol in breath had, in consequence, been rebutted because Garda Kenny, described as the Director's expert witness, stated that the statement could not be relied upon in given circumstances: The proposition depends ultimately on the State facts and each case will be different and Garda Kenny's view was merely a hypothesis.

19 The applicant contended that on the basis of DPP -v- Barnwell (unreported) Flood J, CCA, 24th January 1977, there were inherent conflicts on vital points.

20 In the prosecution case between the evidence of Garda Mulcahy and Kenny whereby that, even if the prosecution evidence was taken at its highest, a jury properly charged could not comment upon it. This decision applied, R -v- Galbraith (1981) 1WLR, 1039 of the English Court of Appeal. As is well known on that authority, there are three circumstances in which a directed acquittal would fall to be considered, namely where there is no prima facie case where the prosecution evidence is so tenuous or contradictory taken at its highest, that no properly charged jury could properly convict upon it, and where issues of weight, strength and weakness or credibility ordinarily within the provenance of the jury arise. In the first and depending on the facts and circumstances. In the...