Thompkins & Aronu v DPP & District Judge O'Neill

JurisdictionIreland
JudgeONeill J
Judgment Date16 February 2010
Neutral Citation[2010] IEHC 58
CourtHigh Court
Date16 February 2010

[2010] IEHC 58

THE HIGH COURT

[No. 1420 J.R./2008]
[No. 1423 J.R./2008]
Thompkins & Aronu v DPP & District Judge O'Neill
Adam Thompkins
Applicant

And

The Director of Public Prosecutions

And

District Judge John O'Neill
Respondents
Martin Aronu
Applicant

And

The Director of Public Prosecutions

And

District Judge John O'Neill
Respondents

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1994 S13(1)(B)

ROAD TRAFFIC ACT 1994 S19

ROAD TRAFFIC ACT 1994 S21(3)

ROAD TRAFFIC ACT 1994 S21

WHELAN v JUDGE KIRBY & DPP 2005 2 IR 30

DPP & WARD v SPECIAL CRIMINAL COURT 1999 1 IR 60

HOBBS v HURLEY UNREP COSTELLO 10.6.80 1980/6/1106

DPP v CORRIGAN 1980 ILRM 145 1980/12/2223

DPP, PEOPLE v SWEENEY; SWEENEY v RAPE CRISIS CENTRE 2001 4 IR 102 2002 1 ILRM 532 2001/8/2166

H (D) v JUDGE GROARKE & DPP 2002 3 IR 522 2002/12/2955

HEALTH SERVICE EXECUTIVE v JUDGE WHITE UNREP EDWARDS 22.5.2009 2009 IEHC 242

DPP v DOYLE 1994 2 IR 286

DPP v JUDGE BROWNE UNREP MCMAHON 9.12.2008 2008/16/3523 2008 IEHC 391

DPP (HORAN) v O'MALLEY UNREP GILLIGAN 1.5.2008 2008/20/4443 2008 IEHC 117

SMITH v JUDGE NI CHONDUN UNREP MCCARTHY 3.7.2007 2007/56/12114 2007 IEHC 270

KENNY v JUDGE COUGHLAN & DPP UNREP O'NEILL 8.2.2008 2008/33/7191 2008 IEHC 28

O'MAHONY v JUDGE BALLAGH & DPP 2002 2 IR 410 2001/19/5350

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

CRIMINAL LAW

Disclosure

Third party disclosure - Drug driving - Whether certificate of analysis produced as soon as practicable - Whether disclosure necessary to rebut statutory presumption - Whether order for disclosure could be made against third party in criminal proceedings - Nature of information being sought - Whether amounted to evidence or an effective direction to conduct further investigation - Whether applicant had means to rebut statutory presumption in absence of disclosure - Right to fair trial - Whether District Court Judge's judgment rational - Road Traffic Act 1961 (No ), s 49 - Road Traffic Act 1994 (No ), s 19 - People (DPP) v Gary Doyle [1994] 2 IR 286; Whelan v Kirby [2005] 2 IR 30; DPP v Judge Browne [2008] IEHC 391 (Unrep, McMahon J, 9/12/2008); People (DPP) v Sweeney [2001] 4 IR 103; DH v Groarke 2002] 3IR 522; Health Service Executive v Judge White [2009] IEHC 242 (Unrep, Edwards J, 22/5/2009) and People (DPP) v O'Malley [2008] IEHC 117 (Unrep, Gilligan J, 1/5/2008) considered - Reliefs refused (2008/1420JR - Ó Neill J - 16/2/2010) [2010] IEHC 58

Thompkins v DPP

1

JUDGMENT of ONeill J delivered the 16th day of Febuary, 2010

1. Relief sought
2

2 1.1 Leave was granted by this Court (Peart J.) in both of these sets of proceedings on the 15 th December, 2008, to pursue inter alia the following reliefs by way of judicial review:

3

1. An order of prohibition or in the alternative an injunction prohibiting or restraining the first named respondent from pursuing the prosecution of the applicant in relation to an offence contrary to s.49(1) and (6)(a) of the Road Traffic Act 1961, (as inserted by s.10 of the Road Traffic Act 1994 and as amended by s.23 of the Road Traffic Act 2002), as set out in Case Number 2007/186372 currently before Dublin District Court.

4

2. An order of certiorari quashing the order or decision of the second named respondent dated the 30 th October, 2008, deciding that the applicant is not entitled to the information sought by way of disclosure and refusing to order or direct the first named respondent to furnish that information to the applicant.

5

3. A declaration that the applicant is entitled to be furnished with the following information sought by disclosure in relation to the said offence:

6

(a) The reason for the lapse of time in conducting the analysis.

7

(b) The nature of all steps taken and the dates upon which each step was taken, in relation to the analysis of the sample during the time in which it remained in the custody of the Medical Bureau of Road Safety.

8

(c) Information as to whether at all times between the initial receipt of the sample and the analysis, the sample remained in the custody and control of the Medical Bureau of Road Safety.

9

(d) Information as to whether the sample remained at all such times within this jurisdiction.

10

(e) If the sample was analysed in another laboratory outside that of the Bureau, the nature of all steps taken, the dates of each step, and the names and addresses of all persons taking such steps.

2. The Facts
11

2 2.1 Both of the applicants, in separate incidents, were arrested and charged with offences contrary to s.49(1) and (6)(a) of the Road Traffic Act 1961, (as inserted by s.10 of the Road Traffic Act 1994 and as amended by s.23 of the Road Traffic Act 2002), which prohibits a person driving a vehicle whilst under the influence of an intoxicant to such an extent as to render that person incapable of having proper control of that vehicle.

12

3 2.2 The applicant in the first set of proceedings, Mr. Thompkins, provided a urine sample to the gardaí pursuant to s.13(1)(b) of the Road Traffic Act 1994 (hereinafter "the Act of 1994") and the applicant in the second proceedings, Mr. Aronu, provided a blood sample to the gardaí pursuant to the same section for the purpose of testing for intoxicants by the Medical Bureau of Road Safety (hereinafter the "MBRS"). In each case the results confirmed the presence of various drugs in each of the applicant's systems. The results further indicated that they were below the legal limit for alcohol.

13

4 2.3 Section 19 of the Act of 1994 provides that the MBRS is to perform its analysis of a sample and forward a certificate, a statutory form, detailing inter alia the presence of alcohol or drug(s) from the sample supplied to it for analysis, "as soon as practicable" after it has received a specimen forwarded to it. The relevant portion reads as follows:-

"(1) As soon as practicable after it has received a specimen forwarded to it under section 18, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.

(4) In a prosecution for an offence under this Part or under Section 49 or 50 of the Principal Act, it shall be presumed until the contrary is shown that subsections (1) to (3) have been complied with."

14

Section 21(3) of the Act of 1994 outlines the evidential value of a certificate issued under s.19:-

"A certificate expressed to have been issued under section 19 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with the requirements imposed on it by or under this Part or Part V of the Act of 1968."

15

5 2.4 Mr. Thompkins' urine sample was taken on the 4 th November, 2006, and was forwarded to the MBRS for analysis. A certificate under s.19 of the Act of 1994 was issued by the MBRS on the 8 th February, 2007, approximately thirteen weeks later. Mr. Aronu's blood sample was taken on the 7 th October, 2006 and was duly sent to the MBRS. A certificate pursuant to s.19 of the Act of 1994 was issued by the MBRS on the 21 st December, 2006, approximately eleven weeks after the test had been requested.

16

6 2.5 The applicants' respective cases then came before the District Court. Disclosure, including copies of the certificates issued under s.19 of the Act of 1994, was made in each case. The applicants' respective solicitors also sought further specific disclosure in respect of the timing of the issuance of the s.19 certificates, in an effort to determine whether they were issued "as soon as practicable".

17

7 2.6 Mr. Staines, Mr. Thompkins' solicitor, wrote to the Garda Superintendent in the Bridewell Garda Station seeking further specific disclosure of ten items by letter dated the 11 th January, 2008, which included inter alia:-

18

2 "5. The reason for the delay in conducting the analysis.

19

6. Details of all steps taken, including dates, in relation to the analysis of the sample during the time in which it remained in the custody of the MBRS?

20

7. Confirmation that at all times between initial receipt of the sample and the analysis, the sample remained in the custody and control of the MBRS.

21

8. Confirmation that the sample remained at all such times within this jurisdiction.

22

9. If the sample was analysed in another laboratory outside that of the Bureau's, can you please confirm this was done so with the consent of the relevant Minister pursuant to Statutory Instrument 241 of 1968.

23

10. If the sample was analysed in another laboratory outside that of the Bureau's please furnish details of all steps taken, including dates, in relation to the analysis of the sample during the time in which it remained outside the custody of the MBRS."

"…If you assert that the above matters in part or whole can only be addressed by oral evidence, we would be obliged if you could furnish us, in advance of any hearing, with a précis of the evidence that will be given by a Medical Bureau witness. …"

24

8 2.7 The prosecuting garda responded in a letter dated the 16 th January, 2008, indicating that the information sought was unavailable and that the s.19 certificate, of itself, was sufficient. He forwarded a copy of the letter of the 11 th January, 2008, received by him from Mr. Staines to the MRBS, which, in turn, responded to the prosecuting garda by letter dated the 7 th March, 2008, stating as follows:-

"The...

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