Whelan v Kirby

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 07 November 2003
• Neutral Citation: [2003] IEHC 124
• Court: High Court
• Date: 07 November 2003

[2003] IEHC 124

THE HIGH COURT

[2002 No. 131 JR]

[2002 No. 206 JR]

[2002 No. 205 JR]

[2002 No. 334 JR]

[2002 No. 204 JR]

[2002 No. 261 JR]

[2002 No. 468 JR]

WHELAN & ORS v. KIRBY & DPP

JUDICIAL REVIEW

BETWEEN

DAVID WHELAN

APPLICANT

AND

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

BETWEEN

CIARAN FITZPATRICK

PLAINTIFF

AND

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

AND

BETWEEN

DYMPNA STACK

PLAINTIFF

AND

WHELAN & ORS v. KIRBY & DPP

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

AND

BETWEEN

LARRY CLARKE

PLAINTIFF

AND

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

AND

THE HIGH COURT

BETWEEN

EOIN MULHALL

PLAINTIFF

AND

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

AND

BETWEEN

TARA HENRY

WHELAN & ORS v. KIRBY & DPP

PLAINTIFF

AND

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

AND

BETWEEN

JASON MOFFATT

PLAINTIFF

AND

JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANT

Citations:

COMPANIES ACT 1963 S214

STONEGATE LTD V GREGORY 1980 1 AER 241

PAGEBOY COURIERS RE 1983 ILRM 510

BULA LTD 1990 1 IR 440

Synopsis:

WINDING UP

Liquidation

Petition to wind-up on grounds that company unable to meet its debts - Whether bona fide dispute over debt in existence - Whether cross-claim by company made in good faith and on substantial grounds - Whether petition should be dismissed - Companies Act, 1963 (304/2001 - Supreme Court - 29/01/03)

In the Matter of WMG (Toughening) Ltd - [2003] 1 IR 389

1 Mr. Justice Aindrias Ó Caoimh delivered the 7th November, 2003.

2 These proceedings are a series of proceedings taken against the respondent judge and the Director of Public Prosecutions arising out of a decision made by the first respondent refusing to permit or direct inspection, including examination, of facilities of the intoximeter E.C./I.R. apparatus situated at Dun Laoghaire Garda Station which intoximeter had been used to obtain a sample of breath from the applicant in proceedings brought against him by the Director of Public Prosecutions for an alleged offence under s. 49 (4) and 6 (a) of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic Act, 1994. An order of certiorari is sought against an order of the first respondent in circumstances where he entered convictions against the applicants and imposed penalties upon each of the applicants.

3 It is submitted that the grounds for seeking judicial review in each case are identical as are the grounds which are set forth in the respective statements of opposition (apart from the case of Tara Henry, where a plea of delay is also included).

4 Each of the applicants was summoned to appear before the first named respondent in relation to an alleged offence under s. 49 (4) and 6 (a) of the Road Traffic Act, 1961as inserted by s. 10 of the Road Traffic Act 1994. This section provides as follows:

"A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath."

5 In the prosecutions, the breath samples are obtained by means of intoximeter at a Garda Station as set out in s. 13 of the Road Traffic Act, 1994. Under the provisions of s. 13 a member of an Garda Síochána may require a person arrested under s. 49 (8) of the Principal Act to provide, by exhaling into the intoximeter, two specimens of his breath. A person who refuses or fails to comply with that requirement shall be guilty of an offence and shall be liable on summary conviction to a fine or to imprisonment for a term not exceeding six months or to both. The intoximeter apparatus determines the concentration of alcohol in each of the two specimens. If it determines that one of the specimens has a lower concentration that the other then the specimen with the lower concentration is to be taken into account for the purposes of the charge alleged.

6 If the intoximeter determines that the person may have contravened s. 49 (4) of the Act, the arrested person is to be supplied forthwith by a member of the Garda Síochána with two identical statements, automatically produced by the intoximeter in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of the alcohol in the specimen. On receipt of the statements the person is required, on being requested by the Garda to do so, to acknowledge forthwith the receipt by placing his signature on each statement and returning either of the statements to the Garda. (See s. 17 of the Act in 1994). Refusal or failure to comply with these requirements constitutes an offence.

7 Section 21 of the Act of 1994 provides as follows:

"A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961to 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 member of the Garda Síochána concerned with the requirements imposed on him by or under this Part prior to and in connection with the supply by him pursuant to s. 17 (2) of such statement."

8 It can be seen from this sub-section that it contains a presumption that the statement issued by the intoximeter is evidence of the facts as stated in it "until the contrary is shown." In the present case the solicitor for the applicant entered into lengthy correspondence with the Garda authorities and the Medical Bureau for Road Safety in order to secure inspection facilities of an intoximeter used in each case, for the purposes of properly defending criminal proceedings brought against the applicants. On behalf of the Medical Bureau it was indicated in the course of correspondence that it was of the view that it would be necessary for a court order to be obtained directing the circumstances in which the equipment might be tested and also dealing with the question of costs which would be incurred by the Medical Bureau in supervising, retesting etc. the intoximeter in question.

9 On 23 ^rd October, 2001, the cases were listed for mention before the first named respondent when the question of an inspection of the intoximeter was raised. The first named respondent was invited to read the correspondence which had been entered into in respect of the case but did not seek to do so. Instead he insisted that hearing dates be fixed in each of the cases. Ultimately an application was brought before the respondent Judge in the case of Director of Public Prosecutions v. David Whelan with the proceedings in relation to the other applicants being cited as associated cases. The application came on for hearing on the 1 ^st November, 2001, when the solicitor for the applicants made an application directing/permitting/authorising inspection, including examination of facilities of the intoximeter in question which was located at Dun Laoghaire Garda Station. It appears from the evidence before the court that the respondent judge was not disposed to direct the facilities in question which had been sought. He refused the application and adjourned the various prosecutions for hearing on later dates.

10 At the commencement of each of the hearings the earlier application was renewed by the solicitor for the applicants, but again this was refused by the first respondent who, having heard the evidence in the cases before him, convicted each of the applicant's in relation to the offence alleged. In the circumstances each of the applicants has sought an order of certiorari quashing the conviction entered as aforesaid.

11 It appears that when the application for inspection first came before the respondent, Mr. Ronald J. Lynam, solicitor on behalf of the applicants, indicated to the respondent judge that he was actively seeking an inspection of the apparatus used in the Garda Station by a suitably qualified expert and that this expert had been sought. The case was adjourned to the 23 ^rd October, 2001, for mention only on this basis. It is stated that on 23 ^rd October, 2001, a number of cases were listed before the first named respondent all of which had been adjourned to that date for mention only on the basis that they were all cases in which Mr. Lynam was seeking an inspection of the relevant apparatus. At the time the respondent judge was informed that the matter of inspection had progressed to the stage where there was then a firm of solicitors representing the Medical Bureau of Road Safety. The first respondent indicated that he was not prepared to wait any longer, that he had afforded ample opportunity for an inspection to take place and that he intended to proceed to hear the various cases. It appears that Mr. Lynam then informed the first respondent that it had taken an extraordinary length of time for the State to adequately address his request for inspections and that he had no authority to enter the Garda Station with a suitably qualified expert and to proceed to inspect the apparatus without the necessary arrangements having been put in place.

12 Mr. Lynam has exhibited in these proceedings the correspondence with the Superintendent of the Garda Síochána at Dun Laoghaire Garda Station. While the indication given was that Mr. Lynam had instructions to request the examination of the intoximeter at Dun Laoghaire Garda Station by a suitably qualified expert, it appears that the identity of this expert was not revealed at any time. The evidence before this Court shows that by 2 ^nd August, 2001, Mr. Lynam was...