Sweeney v District Judge Fahy

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 27 April 2009
• Neutral Citation: [2009] IEHC 212
• Docket Number: [No. 237 J.R./2008]
• Court: High Court
• Date: 27 April 2009

[2009] IEHC 212

THE HIGH COURT

[No. 237 J.R./2008]

Sweeney v District Judge Fahy

BETWEEN

MICHAEL SWEENEY

APPLICANT

AND

DISTRICT JUSTICE MARY FAHY

RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(6)

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1994 S19

ROAD TRAFFIC ACT 1994 S19(1)

ROAD TRAFFIC ACT 1994 S19(3)

STOKES v O'DONNELL & ORS 1999 3 IR 218 1996 2 ILRM 538 1996/8/2483

TRULOC LTD v MCMENAMIN 1994 1 ILRM 151

ROAD TRAFFIC ACT 1994 S21(3)

ROAD TRAFFIC ACT 1968 PART V

DPP v CORRIGAN UNREP FINLAY 21.7.1980 1980/12/2223

DPP v SPAIGHT UNREP FINLAY 27.11.1981 1982/3/676

ROAD TRAFFIC ACT 1994 S19(4)

CRIMINAL LAW

Road traffic offence

Driving under intoxicant - Invalid medical certificate - Arrest - Blood sample - Absence of alcohol in sample - Disposal of sample by applicant - Second certificate showing presence of cocaine in sample - Prosecution for driving under influence of drugs - Submissions in relation to invalidity of certificate - Acceptance of certificate as evidence - Absence of bureau seal - Claim that certificate not furnished as soon as reasonably practicable - Claim that âÇÿcocaine class' not drug within meaning of legislation - Claim that later reanalysis raised serious risk of contamination - Claim that certificate furnished unfairly - Sufficiency of certificate as evidence until contrary shown - Whether presumption rebutted - Interpretation of âÇÿas soon as practicable' - Whether word âÇÿclass' fatal to prosecution - Whether unfair procedures - Right to carry out second analysis - Absence of representation that second analysis would not take place - Stokes v Director of Public Prosecutions [1999] 3 IR 218; Lennon v District Judge Clifford [1992] 1 IR 382; Chief Constable v Evans [1982] 1 WLR 115; Truloc Limited v District Justice McMenamin [1994] 1 ILRM 151; Director of Public Prosecutions v Corrigan (Unrep, Finlay P, 21/7/1980) and Director of Public Prosecutions v Spaight (Unrep, Finlay P, 27/11/1981) considered - Road Traffic Act 1961 (No 24), s 49 - Road Traffic Act 1994 (No 7), ss 19 and 21 - Application dismissed (2008/237JR - O'Keeffe J - 21/4/2009) [2009] IEHC 212

Sweeney v District Judge Finn

JUDGMENT delivered by

Mr. Justice O'Keeffe

on 27 day of April 2009

1 The Applicant seeks an order ofcertiorari by way of judicial review quashing the decision of the Respondent made at Tuam District Court on 7^th December, 2007 whereby the Respondent convicted the Applicant of an offence contrary to section 49 of the Road Traffic Act 1961, imposed a custodial sentence and disqualification on the Applicant from driving for two years.

2 The Applicant was charged that on 13^th October, 2006, he drove a mechanically propelled vehicle in a public place when he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle contrary to section 49(1), (6) and (8) 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.

3 It was contended by the Applicant that the prosecution solely relied on the certificate issued by the Medical Bureau of Road Safety ("the Bureau") under section 19 of the Road Traffic Act1994, certifying the presence of a drug or drugs which stated, inter alia:-

"The Medical Bureau of Road Safety certifies that on analysis by the Bureau, the specimen to which the above particulars relate contain the presence of the following…Cocaine Class."

4 It was claimed that the said certificate was invalid and null and void and not in accordance with section 19 of the Road Traffic Act1994 and was not evidence of the presence of an intoxicant in the Applicant's blood on the date of the alleged offence because:-

5 (a) It did not have affixed thereto the seal of the Bureau.

6 (b) It was not furnished as soon as was reasonably practicable by the Bureau but rather was furnished over some 13/14 weeks from the date that the Applicant provided the blood sample in question on 30^th October, 2006.

7 (c) The purported finding of a drug "Cocaine Class" in the Applicant's blood sample was not a finding of an intoxicant within the meaning of section 19(1) of the Road Traffic Act1994 or a "drug" or a substance within the meaning of that section in Irish law.

8 (d) It related to a reanalysis some 13/14 weeks after the first analysis of a blood sample which raised a serious risk that same was contaminated during this period such that it was unreliable and should not be accepted as evidence.

9 (e) The certificate was served in circumstances of unfairness in that the Applicant had already been served with the certificate recording the absence of alcohol in his system and the Applicant believed the matter was completed and accordingly discarded the sample which he had until then retained.

10 (f) The Respondent erred in law and exceeded her jurisdiction by accepting the certificate of the Bureau as a certificate within the meaning of section 19 of the Road Traffic Act1994 or as evidence of the existence of alcohol in the Applicant's blood when it clearly did not bear the seal of the Medical Bureau.

11 (g) The Respondent erred in law in accepting a document from the Bureau dated 7^th February 2007, as a valid certificate in circumstances where the examination of the Applicant's blood in respect of cocaine did not take place until some 14 weeks from the date in which the Applicant herein provided the said blood sample and at a time when the seal of the said sample had been broken by the Bureau when the Applicant's blood sample was examined for alcohol on 13^th November, 2006.

12 (h) The Notice Party in failing to analyse the Applicant's blood sample for blood and other intoxicants on the same date namely 13^th November, 2006 (when the Applicant's blood was analysed for alcohol) failed to examine same as soon as was practicable or to forward the sample (sic) as soon as was practicable to Garda Duane as required by section 19 of the Road Traffic Act 1991 in particular subsection 1 thereof. Further the seal of the container containing the blood sample was broken on 13^th November, 2006 such that the said sample could have been contaminated before it was analysed on 6^th February, 2007.

13 (i) Further, a completed certificate as required by section 19(3) of the Road Traffic Act1994 was not furnished to the Garda Station concerned and in particular to Garda Duane as soon as practicable and therefore was not in compliance with section 19(1) of the Road Traffic Act 1994.

14 (j) The Respondent erred in law and in principle in convicting the Applicant on foot of the purported certificate and in deeming the said certificate to be a valid certificate within the meaning of section 19 of the Road Traffic Act1994 and/or evidence that an intoxicant existed in the Applicant's blood namely "Cocaine Class" when same was not an intoxicant nor a drug known to law and the Applicant's conviction on foot of the said summons is null and void and should be quashed by order of certiorari.

15 (k) The Applicant by reason of the foregoing was not dealt with in accordance with constitutional fair procedures to which he was entitled.

16 5. The circumstances of the case are that at 1.25pm on 30^th October 2006, Garda Duane of Tuam Garda Station arrested the Applicant pursuant to the Road Traffic Act. The Applicant opted to provide a blood specimen to the designated doctor. The samples were placed in two sealed containers, the Applicant was offered a choice of either container and took one. On 31^st October, 2006 Garda Duane posted the other container containing the Applicant's blood to the Bureau. A receipt was received from the Bureau a few days later. On 16^th November, 2006 Garda Duane received a certificate from the Bureau which recorded that it had analysed the Applicant's blood sample and found the concentration of blood alcohol in the Applicant's blood was "nil". A copy of this certificate was sent to the Applicant. The Applicant decided that as there was no alcohol in his blood there was no need for him to retain the sample which had been given to him by Garda Duane and he disposed of same believing that no prosecution would be brought against him.

17 6. On 10^th February, 2007 some 13/14 weeks later, a certificate from the Bureau was forwarded to Garda Duane certifying that on analysis the specimen of the Applicant contained the presence of the following drug "Cocaine Class" certificate. The certificate, it is stated was adduced in evidence by the prosecution and accepted by the Respondent. It is also claimed the seal of the Bureau was not affixed to the certificate.

18 7. Garda Duane gave evidence of the arrest of the accused and details of the procedures undertaken at Tuam Garda Station. Part of his evidence were his observations that when he stopped the Applicant whilst driving and whilst speaking with him, he observed that his eyes were bloodshot, glazed and dilated and that he was disorientated in his speech and manner, that in other words he was "high" in the experience of Garda Duane. He said that his evidence was supportive of the other evidence in the case namely the certificate from the Bureau which certified the presence of drugs in the Applicant's system. He further stated that in relation to the second certificate (dated 6^th February, 2007) that the Bureau's seal was located on the bottom right hand side but that it did not appear in both copies.

19 8. He said that at the completion of the evidence, Ms. Angela Dempsey, Solicitor on behalf of the Applicant made submissions to the Respondent in relation to the delay in examining the blood sample for drugs...