Walsh v District Justice O'Buachalla

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [1990 No. 146 J.R.]
• Court: High Court

Walsh v. District Justice O Buachalla

John Walsh

Applicant

and

District Justice Donnacha O Buachalla and The Director of Public Prosecutions

Respondents

[1990 No. 146 J.R.]

High Court

Criminal law - Evidence - Road traffic offence - Driving with excessive quantity of alcohol in the body - Statutory procedure for arresting persons and requiring them to provide specimen of urine or blood - Whether arrested person has right of access to solicitor before providing specimen - Whether refusal of right of access rendered evidence of tests carried out on specimen inadmissible - Road Traffic (Amendment) Act, 1978 (No. 19), s. 13, sub-s. 1 (b).

Section 49, sub-s. 2 of the Road Traffic Act, 1961, as amended by the Road Traffic (Amendment) Act, 1978, creates the offence of driving or attempting to drive a mechanically propelled vehicle in a public place while there is present in the body a quantity of alcohol such that, within three hours after so driving, or attempting to drive, the concentration of alcohol in the urine or blood exceeds specified limits. Persons arrested and brought to a garda station may be required to provide to a designated registered medical practitioner a specimen of urine or blood; failure to provide such a specimen is an offence under the Act of 1978. Specimens so taken are sent to the Medical Bureau of Road Safety and a certificate from the Bureau, as to the concentration of alcohol in such specimen, may be produced in evidence in a subsequent prosecution.

The applicant was tried by the first respondent, having been charged with an offence under s. 49, sub-s. 2 of the Act of 1961. He had been arrested and brought to a garda station, where he remained pending the arrival of a medical practitioner. He was given a document entitled"Information for Persons in Custody", which stated inter alia that arrested persons could communicate privately with a solicitor, either by telephone or at the station. The applicant had access to a telephone but did not attempt to contact a solicitor. When the medical practitioner arrived some 40 minutes later the applicant requested a solicitor. This request was refused by the arresting garda because he believed that the request was not genuine and was made merely for the purpose of delay. The applicant was informed that he could contact a solicitor as soon as the specimen had been taken. After the specimen was taken the applicant did not seek to contact a solicitor.

At the hearing before the first respondent it was submitted on behalf of the applicant that the certificate from the bureau should not be admitted in evidence as the specimen had been taken in breach of the applicant's constitutional right of access to a solicitor. This submission was rejected and the applicant was convicted, fined and disqualified from driving for one year. On the applicant's application by way of judicial review for an order of certiorari quashing his conviction it was

Held by Blayney J., in refusing the application, 1, that evidence obtained following a deliberate and conscious breach of an accused person's constitutional rights must be excluded only if it had been obtained as a result of that breach. In the absence of a causative link between the breach and the obtaining of the evidence, such evidence was admissible.

The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73; [1990] I.L.R.M. 313 andThe People (Director of Public Prosecutions) v. Shaw[1982] I.R. 1 considered.

2. That, assuming the refusal of the applicant's request for access to a solicitor was in breach...