Sweeney v District Judge Fahy

• Jurisdiction: Ireland
• Judge: Mr. Justice M. McKechnie,Mr. Justice Barrett
• Judgment Date: 31 July 2014
• Neutral Citation: [2014] IESC 50
• Court: Supreme Court
• Docket Number: [Appeal No: 285/2009]
• Date: 31 July 2014

[2014] IESC 50

THE SUPREME COURT

McKechnie J., Clarke J., Dunne J.

[Appeal No: 285/2009]

Between/

Michael Sweeney

Applicant/Appellant

and

District Judge Fahy

Respondent

and

The Director of Public Prosecutions

Notice Party/Respondent

Driving – Arrested under suspicion of driving under the influence of alcohol – Blood samples taken-Results showed zero alcohol concentration – Accused therefore assumed no prosecution would be brought however no express statement was made by DPP to this effect – Some time later a certificate was issued indicating cocaine was present in specimen- Whether judicial review appropriate – Delay – Prejudice – Constitutional fairness of the accused – Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260 considered and applied – Whether certificate was issued as soon as practicable – Evidence of incapacity to drive

Facts Mr Sweeney was arrested under suspicion of driving under the influence of alcohol pursuant to s. 49(8) of the Road Traffic Act 1961. He was escorted to the police station where he was asked to provide blood samples to a designated doctor for analysis. The test results showed zero alcohol concentration in his blood. He was given an initial certificate from the Medical Bureau of Road Safety to such effect but subsequently received a second certificate indicating cocaine was found to be present. Mr Sweeney sought to challenge his conviction for driving while under the influence of a drug contrary to s. 49(1) and 6(a) of the 1961 Act. He relied on three main points of appeal: (1) It was said that Mr. Sweeney was entitled to consider himself exonerated of the offence for which he had been arrested when he received a certificate showing no concentration of alcohol. It was said that Mr. Sweeney was prejudiced in his defence by the fact that a second, and later certificate, concerning the presence of cocaine, was issued after that time (2) It was said that the second certificate was, in any event, late and did not comply with the statutory requirement that it be issued as soon as practicable (3) It was argued that there was no evidence before the trial judge to enable a finding to be made that Mr Sweeney was incapable of driving by virtue of the presence of the drug concerned. In response, the DPP argued judicial review did not lie and that an appeal to the Circuit Court was a more appropriate remedy. It argued that the only points which could properly be relied on in a judicial review application were points which had been raised in the trial court. It was said that not all of the points now sought to be relied on were raised before the respondent District Judge.

Held The judge was satisfied that the circumstances in which Mr Sweeney received an initial certificate showing a zero concentration of alcohol followed, some time later, by a certificate showing the presence of a drug, did not equate to a case where a potential accused had been expressly assured that there would be no prosecution, thus requiring matters to be analysed on the basis of the principles identified in Eviston. On that basis the judge dismissed the ground of appeal based on the asserted application of Eviston to the facts of this case. The judge was not satisfied that the question concerning 1) whether the sample analysis was carried out and the certificate of the Bureau was issued “as soon as practicable” or 2) the question of whether the respondent District Judge was correct to decide that there was sufficient evidence of incapacity to drive, were matters which properly arose on a judicial review application where Mr Sweeney had available to him a full appeal on the merits with a de novo hearing in the Circuit Court.

-The trial judge was correct to dismiss the application for judicial review.

- The appeal should be disallowed and the order of the High Court affirmed.

Mr. Justice Barrett

Judgment of Mr. Justice Clarke delivered the 31st July, 2014.

1 1. Introduction

1.1 This case involves a challenge to a conviction for driving while under the influence of a drug. The case has a lengthy history. It will be necessary to record at least some of that history so as to help identify the issues which remain for this Court to decide. However, there is a sense in which each of the points now relied on on behalf of the applicant/appellant ("Mr. Sweeney") stem, at least indirectly, from the fact that he was originally arrested on suspicion of drunk driving, received an initial certificate from the Medical Bureau of Road Safety ("the Bureau") indicating that there was a zero concentration of alcohol found but subsequently (over 13 weeks after the alleged offence) received a second certificate which indicated the presence of "cocaine class".

1.2 When charged before the District Court, a number of points were made on Mr. Sweeney's behalf to which reference will need to be made in due course. Having been convicted Mr. Sweeney sought to bring judicial review proceedings before the High Court. At least to some extent, different points were made on that judicial review application to those which had been urged on the respondent District Judge before whom Mr. Sweeney was tried. The High Court (O'Keeffe J.) dismissed the judicial review proceedings (Sweeney v Judge Fahy [2009] IEHC 212). Mr. Sweeney has appealed to this Court against that dismissal. Not all of the points made before the High Court were canvassed in the notice of appeal filed on his behalf.

1.3 As matters developed on the appeal, three points were relied on. First, it was said that Mr. Sweeney was entitled to consider himself exonerated of the offence for which he had been arrested when he received a certificate showing no concentration of alcohol. On that basis, he asserted before the High Court that he had discarded the second sample taken from him on the night of the alleged offence (which sample was, in accordance with the statute, given to him) on the basis of his view that he would not be charged. It is said that Mr. Sweeney was prejudiced in his defence by the fact that a second, and later, certificate, concerning the presence of cocaine, was issued after that time. Second, it is said that the second certificate was, in any event, late and did not comply with the statutory requirement that it be issued as soon as practicable. Third, and finally, it was argued that there was no evidence before the trial judge to enable a finding to be made that Mr. Sweeney was incapable of driving by virtue of the presence of the drug concerned. In that context, it is important to distinguish between a drug driving case and the majority of drink driving prosecutions which relate to an allegation of driving with a concentration of alcohol above the permitted threshold. In such cases, a person commits an offence simply by driving with a concentration of alcohol above the permitted level. No evidence of incapacity is, therefore, required. However, there is no equivalent threshold requirement in respect of drugs and it does, therefore, remain the case that the mere presence of a drug, without some evidence that the drug concerned rendered the driver incapable of driving, is insufficient to sustain a conviction.

1.4 Against those three points, counsel for the notice party/respondent ("the D.P.P."), in addition to arguing on the merits of the points themselves, raised two further broad arguments. First, it was said that all, or at least some, of the points made on behalf of Mr. Sweeney concerned the assessment of evidence before the District Court. In those circumstances, it was suggested that an appeal to the Circuit Court was a more appropriate remedy and that, therefore, judicial review did not lie. Second, it was said that the only points which could properly be relied on in a judicial review application were points which had been raised in the trial court. It was said that not all of the points now sought to be relied on were raised before the respondent District Judge. Against that brief description of the issues, I propose to turn first to a somewhat more detailed account of the facts.

2 The Facts

2.1 On the 30th October, 2006, Mr. Sweeney was arrested by Garda Paul Duane at Farranamartin, Tuam, Co. Galway, pursuant to s. 49(8) of the Road Traffic Act 1961, ("the 1961 Act") as amended, on suspicion of committing an offence under s. 49(1), (2) or the (3) of the 1961 Act. Mr. Sweeney was additionally told that he was being arrested for drunk driving. It appears that Garda Duane”s suspicion was based on Mr. Sweeney”s appearance and manner when stopped at a routine garda checkpoint. In a written statement which was produced in evidence in the High Court and which was sworn to have formed the basis of his evidence before the District Court, Garda Duane described Mr. Sweeney as being ‘disorientated in speech and manner’ and his eyes being ‘bloodshot, glazed and dilated’, all of which were said to be indicia of being under the influence of alcohol or a drug. Mr. Sweeney was then taken to Tuam Garda Station where he elected to provide two samples of his blood to a designated doctor. As noted earlier, one sample was provided to Mr. Sweeney. The other sample was sent to the Bureau for testing.

2.2 Then, on the 16th November, 2006, Garda Duane received a certificate from the Bureau stating that the concentration of alcohol in Mr. Sweeney”s blood was nil milligrammes per 100 millilitres of blood. A copy of this certificate was also provided to Mr. Sweeney. As a result of this certificate, Mr. Sweeney gave affidavit evidence before the High Court that he was of the belief that there was no longer any necessity to retain the sample which he held and, therefore, that he disposed of it. A second certificate was provided to Garda Duane on the 10th February, 2007, stating that ‘cocaine class’ was found in the specimen. A summons was then issued on the 26th February, 2007, charging Mr....