Sweeney -v- District Judge Fahy, [2014] IESC 50 (2014)

Docket Number:285/09
Party Name:Sweeney, District Judge Fahy
Judge:McKechnie J.
 
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THE SUPREME COURT[S.C. No. 285 of 2009]

McKechnie J.

Clarke J.

Dunne J.

Michael SweeneyApplicant/AppellantAnd

District Judge FahyRespondent/RespondentAnd

The Director of Public Prosecutions Notice Party/Respondent

Judgment of Mr. Justice William M. McKechnie, delivered the 31

st

day of July, 2014.

Introduction:

  1. This is an appeal from the judgment of O’Keeffe J. delivered on the 27th April, 2009, in which the learned judge dismissed an application for an order of certiorari quashing a conviction recorded against the applicant on the 7th December, 2007. That conviction related to the driving by him of a mechanically propelled vehicle in a public place whilst under the influence of an intoxicant such that, he was incapable of having proper control of same, contrary to s. 49, sub-ss. (1), and (6)(a) of the Road Traffic Act 1961 (“the 1961 Act”) as inserted by s. 10 of the Road Traffic Act 1994 as subsequently amended to the relevant date (“the 1994 Act”). The trial judge imposed a custodial sentence of six months imprisonment, disqualified him from driving for a period of two years and endorsed his licence to reflect these events.

  2. The applicant challenged his conviction by way of an application for judicial review, with Peart J. granting leave, on the grounds contained in the statement grounding the application, on the 3rd March, 2008. The applicant also lodged a notice of appeal but did not pursue this alternative remedy. The substantive application came on for hearing before O’Keeffe J. who, in a written judgment delivered on the date above mentioned, refused all reliefs. From that decision and resulting order, the applicant served a notice of appeal to this Court on the 14th day of July, 2009. This is my judgment on the issues raised on that appeal.

    Background:

  3. On the 30th October, 2006, the applicant was stopped at a check point by one Garda Duane, of Tuam Garda Station and a short time afterwards was arrested on suspicion of having committed an offence(s) under s. 49(1), (2) or (3) of the 1961 Act as amended. At the Garda Station to which he was conveyed, he opted to provide a blood specimen to the designated doctor, who was called to the station for that purpose. That sample was duly divided into two parts with each part being placed into a separate container, which was then sealed, with one being given to the applicant. The other was posted to the Medical Bureau of Road Safety (“the Bureau”) for analysis on the day following this arrest. No issue arises regarding the arrest or the various steps taken in the police station, consequent thereon.

  4. By certificate duly completed and in the prescribed form, dated the 13th day of November, 2006, and received by the gardaí on the 16th November, 2006 (“the first certificate” or “the alcohol certificate”), the Bureau duly certified a “nil” concentration of alcohol in the analysed sample. As required, a copy of this certificate was forwarded to the applicant. On receipt thereof, the applicant took the view that in light of the negative finding, he was free from any threat of prosecution, arising out of his arrest and accordingly disposed of that part of the sample which he had retained in his possession until then. However, much to his surprise, the Bureau issued a further certificate, received by the gardaí on the 10th February, 2007, which confirmed the presence of a “cocaine class” substance in the sample sent to it (“the second certificate” or “the drug certificate”). That finding prompted the issue of the summons containing the charge above mentioned. As part of the resulting prosecution, the second certificate was tendered and accepted in evidence by the respondent.

    The Issues Founding the Application for Judicial Review:

  5. In his affidavit grounding the application for judicial review, the applicant argued that this second, later certificate, being the only evidence adduced by the prosecution as to the presence of an intoxicant in his system, was not valid for the purposes of s. 19 of the 1994 Act (para. 32 infra). This argument was based on a number of grounds, including the following:

    (i) that the Bureau’s seal was not affixed to it;

    (ii) that the specimen which gave rise to the finding was not analysed “as soon as practicable” as required by that section; alternatively if it had been so analysed, the Bureau’s certificate was not forwarded to the gardaí “as soon as practicable”, also a requirement of the section; this conclusion followed in light of the time lapse between the receipt of the first certificate and the second, which in all involved a period of about three months;

    (iii) that the said certificate was not, as a result, in the “prescribed form”; and

    (iv) that the finding as certified, of the presence in his blood stream of a “cocaine class” drug, was not a finding of an intoxicant within the meaning of s. 19 of the 1994 Act, or indeed of any “drug” or substance known to Irish law.

  6. The second issue raised centred on a suggestion that as the seal attached to the sample had to have been broken not later than the 13th November, 2006, there was a distinct possibility that between the actual date of its removal and the date of the drug testing, the state of the sample had become contaminated by some external cocaine like substance, thus giving rise to the finding as recorded. This possibility is entirely consistent with the applicant’s denial of having consumed any intoxicant on the day of his arrest.

  7. In addition, it was further argued that the issue and subsequent use of the second certificate, at least without some forewarning, was unfair, as it was reasonable for the applicant to assume that, given the result in the first certificate, he was thereafter free from all threats of prosecution and so was justified in discarding his part of the specimen, which he did. Consequently there was a breach of fair procedures regarding this process, with the result that the conviction should be considered as null and void.

  8. The material placed before the Court by the Director of Public Prosecutions (“the D.P.P.” or “the notice party”) in defending the judicial review application, asserted that no submission had been made to the trial judge regarding the bureau’s seal, the possibility of contamination, or the meaning of “cocaine class”, as found in the second certificate. Therefore the Court should decline to entertain any of these issues on the review application. Without prejudice to this contention, the overall position adopted by the notice party was that in reality, the application was an attempt to challenge the sufficiency and quality of the evidence, which was exclusively for the trial judge. Once evidence was adduced which was capable of sustaining the conviction, its assessment was solely for the court of trial. Therefore, the true nature of the complaint was of a type which was not amenable to evaluation by judicial review.

  9. The submissions which were advanced in the High Court have been largely replicated on appeal and are set out at paras. 14 to 18 infra. As the decision of the High Court can be understood without any detailed consideration of these, I do not propose to reproduce them in this part of the judgment; but of course reference should be made to what later appears in that regard, if necessary.

    The High Court Decision:

  10. In his decision, O’Keeffe J., noted the regrettable “divergence of recollection” as to what submissions had been made in the District Court, but ultimately agreed with the notice party that the essence of the applicant’s argument pertained to the insufficiency of evidence. He instanced the following submissions, which were made partly before him and partly before the trial judge, as illustrating this point;

    (i) that the applicant was only driving on the occasion in question, because he had been asked by the gardaí to go to Tuam Garda Station to resolve a particular problem (para. 17 infra): as this evidence was not challenged, his fitness to drive at the time could not therefore have been in issue;

    (ii) that the description of “cocaine class” in the second certificate, did not confirm that a “sufficient degree” of such like substance had been found in the analysis, so as to render the applicant “incapable of having proper control of the vehicle”; and

    (iii) that the evidence, when looked at from an overall perspective did not establish guilt beyond a reasonable doubt.

    As can therefore be seen those were matters regarding the sufficiency of evidence: consequently and in accordance with the decision in Stokes v. District Judge Aidan O’Donnell, The Director of Public Prosecutions, Ireland and the Attorney General [1999] 3 I.R. 218 (“Stokes”) such could not form the basis for obtaining judicial review and therefore should be discounted.

  11. The learned judge went on to hold that the Bureau was entitled to undertake the second analysis of the sample. Neither the opportunity to do so nor the issuance of the second certificate constituted unfair procedures. The gardaí never made any representation to the applicant that a further analysis would not take place. Moreover, by virtue of s. 19(4) of the 1994 Act it is to be presumed that sub-ss. (1) to (3) of that section have been complied with until the contrary is shown: in this context the applicant had not adduced sufficient evidence to rebut that presumption: The Director of Public Prosecutions v. Corrigan [1980] I.L.R.M. 145 (“Corrigan”). Finally it was unclear whether any complaint had been made in the District Court regarding the Bureau seal on the second certificate, but regardless, there was evidence now from Garda Duane who clarified the matter, thus removing any valid argument on this point.

  12. In conclusion he rejected the submissions and dismissed the application.

    The Appeal:

    Notice of Appeal:

  13. By notice of appeal dated the 14th July, 2009 it was claimed that the trial judge erred, in:

    (i) concluding that the D.P.P. could rely on the statutory...

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