Sweeney -v- Judge Fahy, [2009] IEHC 212 (2009)

Docket Number:2008 237 JR
Party Name:Sweeney, Judge Fahy
Judge:O''Keeffe J.
 
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THE HIGH COURT2008 237 JR

BETWEEN

MICHAEL SWEENEY APPLICANTAND

DISTRICT JUSTICE MARY FAHY RESPONDENTAND

DIRECTOR OF PUBLIC PROSECUTIONSNOTICE PARTY JUDGMENT delivered by Mr. Justice O'Keeffe on the 27th day of April, 2009

1. The Applicant seeks an order of certiorari by way of judicial review quashing the decision of the Respondent made at Tuam District Court on 7th 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 13th 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 Act 1994, 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 Act 1994, and was not evidence of the presence of an intoxicant in the Applicant's blood on the date of the alleged offence because:-

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

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

(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 Act 1994, or a "drug" or a substance within the meaning of that section in Irish law.

(d) It related to a reanalysis some 13 to 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.

(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.

(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 Act 1994, 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.

(g) The Respondent erred in law in accepting a document from the Bureau dated 7th 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 fourteen weeks from the date on 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 13th November, 2006.

(h) The Notice Party, in failing to analyse the Applicant's blood sample for blood and other intoxicants on the same date, namely, 13th 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 13th November, 2006, such that the said sample could have been contaminated before it was analysed on 6th February, 2007.

(i) Further, a completed certificate, as required by section 19(3) of the Road Traffic Act 1994, 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.

(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 Act 1994, 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.

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

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