Weir v DPP

• Jurisdiction: Ireland
• Judge: O Neill J.
• Judgment Date: 29 July 2008
• Neutral Citation: [2008] IEHC 268
• Court: High Court
• Date: 29 July 2008

Weir v DPP (Goodman)

In the matter of s.2 of the Summary Jurisdiction Act, 1857 as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961

Mary Weir

Appellant

And

The Director of Public Prosecutions (at the suit of Garda Francis J. Goodman)

Respondent

[2008] IEHC 268

[No. 628 S.S./2007]

The High Court

Abstract:

Criminal law - Criminal procedure - Case stated - Random breath testing -checkpoint - Whether authorisation of checkpoint was an essential proof in criminal proceedings - Road Traffic Act 2006

Facts: On appeal by way of case stated from a drink driving prosecution, the issue arose as to whether oral evidence was an essential proof that a random checkpoint was authorised under s. 4 of the Road Traffic Act 2006, in order to stop an individual and request a sample and for it to be lawful.

Held by O’ Neill J. that the evidence of the Garda even if not admissible could not have proved an essential feature pursuant to s. 4 of the Act of 2006 and the questions posed would be answered in the negative.

Reporter: E.F.

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 2006 S4

ROAD TRAFFIC ACTS 1961-2006 S49(1)

ROAD TRAFFIC ACTS 1961-2006 S49(2)

ROAD TRAFFIC ACTS 1961-2006 S49(3)

ROAD TRAFFIC ACTS 1961-2006 S49(4)

ROAD TRAFFIC ACTS 1961-2006 S49(8)

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(a)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 2006 S4(3)

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC ACT 2003 S2

ROAD TRAFFIC ACT 1961 S109

ROAD TRAFFIC ACT 19681968 SCHED 1

ROAD TRAFFIC ACT 1994 S12(1)

DPP (STRATFORD) v FAGAN 1993 2 IR 95

DPP (STRATFORD) v FAGAN 1994 3 IR 265

DPP v COWMAN 1993 1 IR 335

ROAD TRAFFIC ACT 2006 S4(2)

CONSTITUTION ART 40.4.1

ROAD TRAFFIC ACT 2006 S4(9)

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 459

MCGRATH EVIDENCE 1ED 2005 681-2

DPP v SPRATT 1995 2 ILRM 117

1 O Neill J. delivered the 29th dav of July 2008.

2 This case came before this court as an appeal by way of case stated pursuant to s. 2 of the Summary Jurisdiction Act 1857, as extended by s.51 of the Courts (Supplemental Provisions) Act 1951, the case having been stated by Judge John Brophy, a judge of the District Court.

3 The relevant facts as proved or admitted or agreed and as found by the learned District Judge, in summary, are as follows:-

4 On the night of 9 ^th November, 2006 at Charterschool Lands, Longwood Road, Trim, County Meath, the appellant was stopped by Garda Francis Goodman, at a Garda checkpoint set up pursuant to s.4 Road Traffic Act 2006 (the Act of 2006) and a roadside breath test was performed on her. The appellant failed the test. Garda Goodman formed the opinion from the result of the test and from his observation of the appellant that she was under the influence of an intoxicant to such an extent as to render her incapable of operating a mechanically propelled vehicle in a public place and that she had committed an offence under subs. (1), (2), ( 3) or (4) of s.49 of the Road Traffic Acts 1961-2006. Garda Goodman informed the appellant of his opinion and that he was arresting her under s. 49(8) of the Road Traffic Acts 1961-2006. The appellant was arrested at 9pm and was brought to Trim Garda Station. A further breath test was carried out there by Garda Eric McGovern using the Lion Intoxilyser 6000 IRL. Garda McGovern furnished the appellant with a signed statement pursuant to s. 17 Road Traffic Act 1994 (the Act of 1994) which contained a reading of 48 microgrammes of alcohol per 100 milliliters of breath.

5 The appellant was charged at 10.15 pm with offences under ss. 49 (4) and (6) (a) of the Road Traffic Act 1961, as inserted by s.10 of the Road Traffic Act 1994, as amended by s.23 of the Road Traffic Act 2002 as set out on charge sheet number 557818. The appellant was released from custody at 10.53 pm.

6 Pursuant to a "Gary Doyle" order made in the District Court on 24 ^th November, 2006, a letter was sent to the appellant's solicitor enclosing statements of four gardaí, a copy of the charge sheet, a copy of the evidential breath certificate and a copy of the custody record. The documents furnished to the appellant's solicitor did not include a written authorisation pursuant to s.4 (3) of the Act of 2006.

7 At the subsequent trial, Garda Goodman gave evidence that on the night of 9 ^thNovember, 2006, he and a colleague had been directed to operate a mandatory alcohol breath test checkpoint under s.4 Road Traffic Act 2006 and that the checkpoint had been authorised by an inspector.

8 In the District Court, at the close of the prosecution case, Mr. Dwyer B.L., counsel for the appellant, sought a direction of no case to answer on the grounds that a written authorisation to set up the checkpoint was a required proof in a case involving a mandatory roadside breath test, in circumstances where it led to the deprivation of the appellant's liberty. The learned District Court Judge refused this application and held that it was sufficient that Garda Goodman had given oral evidence that the checkpoint had been authorised. At no stage was an application made by the respondent to re-open the case nor was there any application to adjourn the case so that the written authorisation could be produced. After hearing the evidence from Garda Goodman and Garda McGovern, the learned District Court Judge convicted the appellant. He imposed a fine of €500 on her and disqualified her from driving for one year.

9 Arising out of the foregoing, the learned Judge posed the following two questions for the opinion of this court:-

10 a "(a) Is oral evidence that a checkpoint is authorised, adequate evidence of the existence of a statutory written authorisation under s. 4 of the Road Traffic Act 2006 to stop the appellant's vehicle and demand from her a sample of her breath on 9 ^thNovember, 2006 and therefore sufficient to establish the lawfulness of any such requirement?

11 (b) If the answer to (a) is no, was I entitled to convict the appellant?

12 A new statutory regime was established under s.4 of the Act of 2006. It gave the gardaí the power to stop vehicles at checkpoints and to require of the person in charge of the vehicle to give a sample of his or her breath for the purpose of investigating offences under s.49 of the Road Traffic Act 1961 (the Principal Act). The power under s.4 of the Act of 2006 is colloquially referred to as "random breath testing". It enables breath testing to be carried out where a garda has no suspicion or opinion that any particular motorist has committed an offence. It provides as follows:-

13 2 "4. - (1) In this section-

14 'authorisation' means an authorisation under subsection (2) to establish a checkpoint;

15 'checkpoint' means a checkpoint established under an authorisation.

16 (2) A member of the Garda Síochána, not below the rank of inspector, may, for the purposes of section 49 of the Principal Act, authorise the establishment of a checkpoint or checkpoints in a public place or places at which members of the Garda Síochána may exercise the powers under subsection (4).

17 (3) An authorisation shall be in writing and shall specify

18 (a) the date on which, and the public place in which, the checkpoint is to be established, and

19 (b) the hours at any time between which it may be operated

20 (4) A member of the Garda Síochána, who is on duty at a checkpoint, may stop any mechanically propelled vehicle at a checkpoint and, without prejudice to any other powers (including the powers under section 12 (inserted by the Act of 2003) of the Act of 1994) conferred on him or her by statute or at common law, may require a person in charge of the vehicle-

21 (a) to-

22 (i) provide (by exhaling into an apparatus for indicating the presence of alcohol in the breath) a specimen of his or her breath, or

23 (ii) accompany him or her or another member of the Garda Síochána to a place (including a vehicle) at or in the vicinity of the checkpoint and there to provide, by exhaling into such an apparatus, a specimen of his or her breath, or

24 (b) to-

25 (i) leave the vehicle at the place where it has been stopped, or

26 (ii) move it to a place in the vicinity of the checkpoint, and keep or leave it there until the person has complied with a requirement made of him or her under paragraph (a).

27 (5) A member of the Garda Síochána for the purposes of making a requirement of a person under subsection (4) may indicate the manner in which the person must comply with the requirement.

28 (6) A person who-

29 (a) refuses or fails to comply immediately with a requirement under subsection (4) (a) or (b)(i) or such a requirement in a manner indicated by a member of the Garda Síochána under subsection (5), or

30 (b) without reasonable excuse, refuses or fails to comply immediately with a requirement under subsection (4)(b)(ii) or such a requirement in a manner indicated by a member of the Garda Síochána under subsection

31 [5]

32 is guilty of an offence and is liable on summary conviction to a fine not exceeding €5, 000 or to imprisonment for a term not exceeding 6 months or both.

33 (7) A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section.

34 (8) In a prosecution for an offence under this section, section 49 or 50 of the Principal Act or Part III of the Act of 1994 it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide a specimen of breath pursuant to this section is an apparatus for indicating the...