The Director of Public Prosecutions (At the Suit of Garda Robert O'Grady) v Hodgins

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 07 July 2023
• Neutral Citation: [2023] IECA 174
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2023/20

In the Matter of Section 16 of the Courts of Justice Act, 1947

Between/

The Director of Public Prosecutions (At the Suit of Garda Robert O'Grady)

Prosecutor

and

Robert Hodgins

Defendant

[2023] IECA 174

Donnelly J.

McCarthy J.

Kennedy J.

Record No.: 2023/20

THE COURT OF APPEAL

Case stated – Point of law – Conviction – Defendant seeking to appeal against conviction – Whether the trial judge was bound by a Supreme Court decision to the effect that a statement which was not duly completed was not admissible

Facts: The defendant, Mr Hodgins, appealed his conviction in the District Court of offences of driving a vehicle while there was present in his body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 22 microgrammes of alcohol per 100 millilitres of breath contrary to s. 4(4)(a) and (5) of the Road Traffic Act 2010. There was a consultative case stated to the Court of Appeal by a judge of the South Western Circuit Court pursuant to s. 16 of the Courts of Justice Act 1947, on a point of law concerning the consequences for the prosecution of a failure by a member of An Garda Síochána to “duly complete” in the prescribed manner two identical statements produced by an apparatus that determines in respect of a specimen of breath the concentration of alcohol therein as required by s. 13(2) of the 2010 Act. Contrary to the sequence prescribed by the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2015 (SI No. 398/2015), the garda did not sign the statements prior to requiring the defendant to sign them. The prosecutor, the Director of Public Prosecutions (the DPP), urged upon the Court of Appeal that the Supreme Court decision in DPP (McMahon) v Avadenei [2018] 3 IR 215 required and/or permitted the trial judge to consider the issues of prejudice to the defendant or breach of fair trial rights as relevant factors for the purpose of deeming as admissible evidence a s. 13 statement. The defendant submitted that the trial judge was bound by the Supreme Court decision in DPP v Freeman (Unreported, Supreme Court, 25 March 2014) to the effect that a statement which was not duly completed was not admissible. The defendant submitted that s. 20(1) of the 2010 Act only permits a duly completed statement to constitute evidence.

Held by the Court of Appeal that nowhere in DPP v Avadenei did the Supreme Court say that it was overruling the decision in DPP v Freeman. The Court of Appeal noted that, contrary to the submission that DPP v Avadenei overturned DPP v Freeman, the Supreme Court in DPP v Avadenei said that DPP v Freeman (and McCarron v Groarke (High Court, 4 April 2000)) “should be regarded as being at the far end of the spectrum of insistence upon the letter of the statute”, the use of the word “spectrum” implying a continuum; thus, this was a statement that those cases were within the range of outcomes permitted under the principles outlined. The Court of Appeal noted that there was an acknowledgment that it is not possible to find a simple solution that fits all circumstances; yet, the High Court and, on appeal, the Supreme Court, found in DPP v Freeman that the particular set of circumstances there, which were identical in this case, meant that the statement not being duly completed could not avail of the statutory presumption of admissibility in proceedings under the Road Traffic Act and was not sufficient evidence of compliance. The Court of Appeal held that it and the Circuit Court must apply the binding precedent of DPP v Freeman over the obiter dicta observations of the Supreme Court in DPP v Avadenei. The Court of Appeal observed that at no point was it asked to consider whether the intervening judgment of The People (Director of Public Prosecutions) v J.C. [2015] IESC 31 had any relevance to the consideration of the issues in this case.

The Court of Appeal held that the decision of the Supreme Court, upholding the decision of the High Court in DPP v Freeman remained binding authority on the Circuit Court judge. The Court of Appeal answered the question posed by the judge of the Circuit Court in the negative.

Case stated.

UNAPPROVED

JUDGMENT of the Court delivered by Ms. Justice Donnelly on this 7th day of July, 2023 .

1 . This is a consultative case stated to the Court of Appeal by Judge Comerford of the South Western Circuit Court pursuant to s. 16 of the Courts of Justice Act, 1947, on a point of law. Mr. Hodgins (“the defendant”) had appealed his conviction in the District Court of offences of driving a vehicle while there was present in his body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 22 microgrammes of alcohol per 100 millilitres of breath contrary to s. 4(4)(a) and (5) of the Road Traffic Act, 2010 (the “2010 Act”).

2 . The point of law concerns the consequences for the prosecution of a failure by a member of An Garda Síochána to “duly complete” in the prescribed manner two identical statements produced by an apparatus that determines in respect of a specimen of breath the concentration of alcohol therein as required by s. 13(2) of the 2010 Act. Contrary to the sequence prescribed by SI No. 398/2015 Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2015 (“the Regulations”), the garda did not sign the statements prior to requiring the defendant to sign them. The prosecutor, (“the DPP”) urges upon the Court that the Supreme Court decision in DPP (McMahon) v Avadenei [2018] 3 IR 215 (“ DPP v Avadenei”) required and/or permitted the trial judge to consider the issues of prejudice to the defendant or breach of fair trial rights as relevant factors for the purpose of deeming as admissible evidence a s. 13 statement. The defendant submitted that the trial judge was bound by the Supreme Court decision in DPP v Freeman (Unreported, Supreme Court, Murray J., 25 March 2014) to the effect that a statement which was not duly completed was not admissible. The defendant submitted that s. 20(1) of the 2010 Act only permits a duly completed statement to constitute evidence.

Background & Facts

3 . Judge Comerford set out the background facts of the case which were proved, accepted, and agreed in the trial before him:

• (a) “On the 7th of December 2020 Garda Robert O'Grady, Garda Deirdre McLaughlin and Garda Laurence Rooney were on duty in the official patrol car attached to Killaloe Garda Station. At 19.05 Hrs they received a report of a traffic collision at Killestry, Killaloe, Co, Clare;

• (b) At 19: 10, Garda O'Grady arrived at the scene of the collision, noted that there were two vehicles involved and met both drivers. One driver identified himself as Robert Hodgins, the defendant, of Annesgrove, Blackwater, Co. Clare. Garda O' Grady noted that the defendant was the sole occupant of his vehicle and that the registration number of said vehicle was […]. Garda O' Grady also met the driver of the other vehicle, (…)

• (c) [The other driver] was driving on the R463 at Killestry, Killaloe, Co. Clare and was travelling in the direction of Killaloe town when an oncoming vehicle, that of the defendant, collided with [the other driver]'s car. The collision occurred approximately two kilometres outside Killaloe town in the direction of O'Briensbridge;

• (d) While speaking with the defendant, Garda O' Grady was informed by him that he had come around a bend, lost control of his vehicle and had collided with the other vehicle. Garda O'Grady also noted at this time that the defendant was unsteady on his feet, that his speech was slurred and that there was a strong smell of intoxicating liquor from his breath;

• (e) Garda O'Grady made a lawful demand of the defendant to produce his driving licence in accordance with section 40 of the Road Traffic Act 1961 as amended. The defendant produced a full Irish driving licence to Garda O' Grady, which was in order, and categorised him as a non-specified driver under the Road Traffic Act;

• (f) Garda O’ Grady then made a lawful requirement of the defendant under section 9 of the Road Traffic Act 2010, requiring a roadside breath test. The defendant complied and provided a specimen of his breath. The Drager device, on analysis of this breath specimen, returned a ‘fail’ reading at the scene.

• (g) At 19.20, Garda O' Grady formed his opinion that the defendant was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place, arrested the defendant under section 4(8) of the Road Traffic Act 2010, as amended, and conveyed him to Ennis Garda Station, arriving there at 20.42.

• (h) At approximately 20.00, Garda O'Grady requested Garda Eoin 0' Donoghue to perform an Evidential Breath Test on the defendant. At 20.53, Garda Eoin O' Donoghue introduced himself to the defendant as a trained operator of the Evidenzer lRL machine, explained the procedure and observed the defendant to ensure he was nil by mouth;

• (i) At 21.22, in the doctor's room at Ennis Garda Station, Garda O' Donoghue made the lawful requirement, under section 12 of the Road Traffic Act 2010, as amended, of the defendant to provide two specimens of his breath, by exhaling into an apparatus designed for determining the concentration of alcohol in the breath. The defendant indicated that he understood the requirement and complied. On analysis the Evidenzer 3 I 004 IRL found that there was 55 microgrammes of alcohol per I00 millilitres of the defendant's breath;

• (j) In accordance with section 13(2) of the Road Traffic Act 2010, the defendant was provided with two identical statements automatically produced by the Evidenzer IRL and in the prescribed form. A copy of the section 13 statement is appended to this...