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

Docket Number:285/09
Party Name:Sweeney, District Judge Fahy
Judge:Clarke J.

THE SUPREME COURT[Appeal No: 285/2009] McKechnie J.Clarke J.Dunne J.Between/Michael SweeneyApplicant/AppellantandDistrict Judge FahyRespondentandThe Director of Public Prosecutions Notice Party/RespondentJudgment of Mr. Justice Clarke delivered the 31st July, 2014.1. Introduction1.1 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 Facts2.1 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. Sweeney with an offence contrary to s. 49(1) and 6(a) of the 1961 Act, as amended.2.3 Mr. Sweeney was tried in the District Court before the respondent District Judge on the 7th December, 2007. The second certificate was adduced in evidence on that date by the presenting officer, Inspector Francis Nicholson. The only two witnesses to give evidence were Mr. Sweeney and Garda Duane. Garda Duane was cross-examined by the solicitor for Mr. Sweeney, Ms. Dempsey. She put it to him that the reason Mr. Sweeney was driving was because he had been requested to travel to Tuam by other Gardaí. Garda Duane said he had no knowledge of this and further added that he was merely carrying out a routine checkpoint when Mr. Sweeney came to his attention. Garda Duane also stated that he was not in position to contradict an assertion that Mr. Sweeney was being followed by an unmarked police car. Mr. Sweeney gave evidence to the effect that he had been requested to travel to Tuam by members of An Garda Síochána, that he would not have otherwise driven at the time in question, and that he was being followed by an unmarked police car. Mr. Sweeney was not cross-examined. Mr. Sweeney was convicted and sentenced to six months imprisonment and disqualified from driving for two years.2.4 As the broad issues relied on by the D.P.P. have the potential to influence the way in which it might be appropriate for this Court to approach the specific issues relied upon on behalf of Mr. Sweeney, I propose to address those issues first. I will, therefore, turn to the question of whether judicial review is appropriate.3. Is Judicial Review appropriate?3.1 As the authors of Hogan and Gwynn Morgan, “Administrative Law in Ireland” (4th Edition, 2010) point out, at para. 10 - 151, it has been frequently stated in judicial review proceedings that the High Court does not act as a court of appeal from decisions of other tribunals. The authors cite, in that context, Lennon v. Clifford [1992] 1 I.R. 382, at p. 386 per O'Hanlon J. and the express approval of that statement of O'Hanlon J. by this Court on appeal in the same case, Lennon v. Clifford [1996] 2 I.R. 590 at p. 593 per Murphy J. Various other comments to like effect are also cited.3.2 It has sometimes been said that judicial review is concerned with whether the decision maker whose action is sought to be reviewed (be it a person or body exercising legal power or a court established by statute) has acted within its jurisdiction. In that context, it is also sometimes said that such a decision maker may exceed its jurisdiction if in breach of obligations such as the requirement to adopt constitutionally fair procedures, the need to consider all but only relevant factors and other issues which have been determined to effect jurisdiction. However, it may well be that the use of the term "jurisdiction" in such circumstances has, at least in some cases, been a cause of confusion. The term "jurisdiction" can also be used in a narrow sense. In that sense it means simply whether the person, body or statutory court concerned has a power to embark on the relevant decision making process at all. However, it is clear that, in the context of considering whether judicial review lies, the term "jurisdiction" is used in a wider sense and covers, amongst other things, the type of cases to which I have just referred.3.3 It is in that sense that the phrase "error within jurisdiction" is used in the jurisprudence. That phrase is designed to emphasise the distinction between the types of issues which can give rise to judicial review, on the one hand, and those issues which can only be pursued by an appeal, on the other. Because the legal power to make decisions of a particular type is vested in a person, body or...

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