Irish Court of Appeal
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Cite as: [2015] IECA 31
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THE COURT OF APPEAL JUDICIAL REVIEW Neutral Citation Number: [2015] IECA 31
[499/2014] The President Finlay Geoghegan J. Hogan J. BETWEEN JAMES O’KEEFFE APPLICANT AND DISTRICT JUDGE MANGAN AND THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENTS JUDGMENT delivered by the President on 21st May 2015 1. This is an appeal by Mr. O’Keeffe against the dismissal by the High Court of his application for judicial review of a conviction under s. 49, sub-sections (1) and (6)(a) of the Road Traffic Act 1961 (as amended). 2. The case was heard at Ennis District Court by Judge Mangan, the first respondent, on 28th September 2011. Mr. O’Keeffe was charged that on 1st March 2010 in Killaloe, County Clare, he drove a mechanically propelled vehicle while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle. 3. The issue in the appeal concerns the correctness of the respondent judge’s approach to a question that arose in the case before him concerning compliance with s. 18 of the 1994 Road Traffic Act. That provision was subsequently replaced but is the relevant section for the case before the judge of the District Court. The section prescribes the procedure for taking specimens of blood and provision of specimens of urine from and by persons arrested under s. 49. Sub-section (1) provides that the designated doctor who has taken the sample of blood or urine divides the specimen into two parts, places each part in a container which he forthwith seals and then he completes the prescribed form. Sub-section (2) provides that the member of the Garda Síochána then offers the person one of the sealed containers “together with a statement in writing indicating that he may retain either of the containers”. Sub-section (3) deals with the submission of the sample to the Bureau by the member of the Garda Síochána. Sub-section (4) provides as follows:
5. Mr. Herbert sought a direction from the judge on the basis that she had asked the applicant questions prior to caution, whereupon the judge asked the Garda directly whether she had formed her opinion when she asked Mr. O’Keeffe the particular question and the Garda replied that she had not. 6. Mr. Herbert then sought a direction on another ground, namely, that the procedures followed in taking the sample from Mr. O’Keeffe were not in accordance with the 1994 Act, in that the Garda had failed to provide Mr. O’Keeffe with a statement in writing of his rights. In the case of a urine sample, this was apparently a yellow slip of paper. The solicitor submitted that this was a specific requirement under the section and he referred to the High Court decision of McCarron v. Judge Groarke & DPP, and he went on to say that the presumption of compliance with the Act had been rebutted. 7. The judge rejected the first ground on which the direction was sought, namely, the questioning of Mr. O’Keeffe prior to arrest. Then the judge directly addressed the prosecuting Garda and asked if she had given the slip of paper to Mr. O’Keeffe or not, notwithstanding Mr. Herbert’s objection to this question on the basis that the State case had closed and the judge could not question the witness on her proofs thereafter. The judge said that in the case of an inadvertency, he could afford the witness an opportunity to mend her evidence. 8. The Garda replied to the judge that she did give or had given the relevant slip of paper to Mr. O’Keeffe. The judge proceeded to hold against the defence submissions and convicted Mr. O’Keeffe. He imposed a €500 fine with 150 days to pay and ordered that he be disqualified from driving for a period of four years. 9. The issue in the appeal concerns the question asked by the trial judge of the prosecuting Garda following the submission made by Mr. Herbert that the judge should give a direction on the ground that the statutory procedure had not been complied with. 10. Another point that ought perhaps to be mentioned, simply to indicate that it does not arise for consideration on the appeal, concerns sub-section (4) and the presumption, until the contrary is shown, that sub-section (2), inter alia, was complied with. That arises “until the contrary is shown” but it is less than obvious that the failure of the Garda to mention that she had given the form actually constituted proof that she had not done so. She did not say either way. Mr. Herbert naturally did not ask her whether she had given his client the relevant piece of paper because obviously he feared that the answer would be yes. But the point is that it is questionable, at least, is whether the failure to mention that she had given the form to Mr. O’Keeffe is evidence that she did not do so. The High Court Decision 12. The High Court was satisfied that a District Court judge may in certain circumstances, of his own volition, recall a witness to give formal evidence following the closure of the prosecution case in a summary trial. The Court cited the judgment of Kenny J. in the Supreme Court in Attorney General (Corbett) v. Halford [1976] 1 I.R. 318 in support. See below for the quotation. 13. Kearns P. cited the judgment of O’Higgins C.J. in Director of Public Prosecutions v. Kemmy [1980] I.R. 160, where, at p. 164, he said that it was essential that precise statutory provisions be complied with because otherwise the Court would be trespassing into the legislative field. In his judgment in this case, Kearns P. added the gloss that there was also a consideration of public policy that driving-related offences require to be prosecuted and
15. The High Court held in this case that there was no detriment, prejudice or compromise of any of the rights of the applicant, nor was there any question of obtaining evidence in breach of his constitutional rights. The Court concluded that the facts of this case meant that it fell into the category of a formal matter which it was within the legitimate discretion of the judge to explore or permit to be explored in all the circumstances. 16. Kearns P. also referred to a number of English cases cited by the respondent in submissions and which supported the approach that he adopted in this case. He said that those cases demonstrated an approach to prosecutions of this kind which accorded with commonsense without in any way interfering with fairness. 17. Finally, the learned president rejected a suggestion of objective bias that it was submitted would or might be entertained by an impartial observer in the circumstances of the case before the respondent judge. The Law
19. The defendant was charged with breaching a prohibition of movement that had been served on him under a Foot-and-Mouth Disease Order. There was an outbreak of that disease in England in late 1967. The defendant was an apprentice jockey who lived in England and when he arrived in late December 1967, he was served with a notice which prohibited him from entering places in which animals were exhibited for show or sale or buildings or other land on which animals were present. The restriction order served on the defendant was made under a Statutory Instrument, the Foot-and-Mouth Disease Order 1956, under the provisions of the Diseases of Animals Act 1894. Although that Act had been repealed in 1966, the new Act had preserved Orders and Regulations made under the previous legislation. 20. Article 19 of the Statutory Instrument of 1956 read:
23. Kenny J. expressed a concurring view and concluded his judgment with the quotation set out above. 24. It may be remarked that these judgments make clear that the missing evidence was essential to the success of the prosecution and arguably went a good deal further than the issue in this case, which is of a much more technical and procedural nature. 25. The Attorney General v. McTiernan [1953] 87 ILTR 162 is a decision of the Supreme Court which arose out of a Revenue prosecution in the District Court that was the subject of a case stated to the High Court. That Court decided in favour of the prosecution and the defendant appealed to the Supreme Court. At the time, in a Revenue prosecution, it was necessary that at some stage the Revenue Commissioners be shown to have elected to proceed for a monetary sum. An averment to the fact of such election in the summons would have been sufficient or proof could have been given during the hearing. When he had heard the evidence, the District judge held that the defendant had a prima facie case to answer and that he was inclined to grant an amendment as sought by the prosecution if it could be proved that the Revenue Commissioners had in fact elected to sue for £100 on each charge. Two documents were produced which appear to have been signed by one Revenue Commissioner. The judge was not satisfied that this was appropriate proof but he gave the State Solicitor an adjournment to look into the law. At the adjourned hearing, the State Solicitor produced two documents which he offered in evidence but the judge refused to admit them, holding as follows:
O’Byrne J. said:
27. In McTiernan’s case, the election of the Revenue Commissioners was an essential matter to be established in the prosecution. The view adopted by the learned District judge echoes the position adopted in this case by the applicant but it was roundly rejected by the Supreme Court. That view was endorsed and followed in the later case above discussed. The question of principle, therefore, is that the evidence can be adduced and ought to be adduced, even after the closing of the prosecution case if it goes to technical or procedural questions, and the nature of that facility has to be understood in the context of the meaning of procedural or technical. It seems clear to me that the question in issue in this case is of a much less central or fundamental nature than the issues that arose in those decided cases. Therefore, the question at issue here is of a much more technical and procedural nature. 28. An analogous question has arisen from time to time in relation to the failure of the prosecution to prove a Statutory Instrument. Whereas judicial notice is taken of primary legislation in the form of Acts of the Oireachtas, that is not the situation with Statutory Instruments. They are normally proved by the production and furnishing to the Court of a copy of the document purporting to be issued by The Stationery Office. The courts have held that a relevant Statutory Instrument may be proved even after an application for a direction has been made on the basis of the failure of proof of the Statutory Instrument. See People (Attorney General) v. Kennedy [1946] I.R. 517, where, at p. 521, Davitt J., giving the judgment of the Court of Criminal Appeal, referred to the convenient modes of proof provided by s. 4 of the Documentary Evidence Act 1925, and commented critically on prosecuting Counsel when saying:
31. In Royal v. Prescott-Clarke [1966] 1 W.L.R. 788, on a case stated by justices, the Court of Appeal held that the justices had a discretion to grant an adjournment to enable the prosecution to produce further evidence to satisfy a formal requirement, namely, to prove an order relating to a motorway. In the absence of such evidence, the defendant was entitled to be acquitted, so it was an essential proof. Counsel for the defendant had applied to the justices for the case to be dismissed and in the middle of his submissions, the prosecution asked for an adjournment to produce the relevant proof but the justices refused. The matter went by way of case stated to the Court of Appeal. The Court held that it was a matter for the discretion of the justices, but in a case such as that, where “there is no question of the prosecution being given a further opportunity to go out and scout about for evidence to strengthen their case”, there was only one way in which the direction could properly be exercised. 32. Price v. Humphreys [1958] 2 Q.B. 353, is another case stated that came before the Court of Appeal, Devlin J. endorsed the proposition that if the matter that is the subject of the application to reopen the case is one of substance, the prosecution ought not to be allowed to do so, but if it is one of technicality “such as the proof of a statutory rule or order”, or something of that sort, then the justices should allow the prosecution case to be reopened. In that case, the Court sent the case back to the justices because the issue was merely one of procedure. 33. Ó Caoimh J. addressed the question of recalling a witness in a public order prosecution in Bates v. Brady [2003] 4 IR 111. An essential proof of the crime was that the alleged offender be warned by the Garda that if he failed to comply with the requirement, he would be committing a criminal offence and that had not been done. The applicant sought to quash the convictions on the ground that the District Court had erred in recalling the prosecution Garda to give evidence of this essential missing fact. Ó Caoimh J. held that unless it could be shown that the accused was given the warning or otherwise knew that failing to comply would constitute a criminal offence, the offence was not committed. He concluded that the evidence related to the merits, and on that basis granted the order sought. 34. In Verdon v. Downes (Unreported, 29th July 1976) the Supreme Court addressed a question of considerable similarity to the instant case. In his judgment for the Court, Griffin J. held that under the statutory regime at the time relating to a drink-driving case, it was necessary for the prosecution to prove that the provisions of the relevant Regulations had been complied with. The judgment went on to make some further relevant observations which although clearly obiter are of assistance:
35. These authorities confirm that in a technical or procedural matter, the judge has a discretion to allow further evidence or to permit the prosecution to reopen the case, whichever expression is appropriate to the situation. Indeed, the authorities state or imply that in such cases, the discretion ought to be exercised in favour of the production of the evidence. Therefore, the concept of a procedural or formal matter, as discussed in these cases, is more than sufficient in breadth to accommodate the question in this instance. 36. The point that was made in argument that there is a special and different rule for cases in which there is proof by way of certificate is not valid. It is a distinction without a difference. The contention does not withstand analysis by reference to the cited authorities and the judgments that may be considered obiter but whose observations remain relevant and helpful. In each case, there was an element of proof that was missing, yet the Court was satisfied that it was in the interest of justice that it should be supplied after the prosecution evidence had been given and the case closed. It is true that the lacunae were considered to be technical or procedural or formal, as opposed to going to the merits of the case, which is the essential criterion for permitting the additional evidence. However, the courts considered material and necessary evidence to be in that permissible category that went far beyond the paper slip in this case. The judgment of the Supreme Court in Verdon v. Downes cited above was concerned with precisely the kind of case that is in consideration here and the missing proofs were much more extensive, substantial and material. Discussion 38. The issue was not whether there was a failure to observe the statutory procedure. There is no dispute in fact that the statutory procedure was complied with in all its formalities. The Garda confirmed that she had given the form, as specified by sub-section (2). That was not disputed and is not disputed by Mr. O’Keeffe. The question is whether the Garda’s failure to recall that step when she was being cross-examined is fatal to the prosecution because once she had ceased giving her evidence there was no revisiting the question. 39. It is difficult in the circumstances to understand how the interest of justice might be served by a rule that prohibited the judge from asking an obvious question. Granted that Mr. Herbert had raised the question as to whether the form had in fact been served and it could be considered that that at least raised the question whether the presumption still stood or had been overturned. So, there was a question. Did the Garda give the form to the person she had arrested and who had furnished a urine sample? She had said that she had given the person one of the sealed containers. It was obvious that he was given that for his own use to get it tested or to retain it and keep open the option of having it tested. He might have decided to wait until he got the result of the Medical Bureau analysis and then pursue his own investigation if he saw fit. 40. The judge was entitled to be concerned as to whether the statutory procedure had been followed. If it had not, it would have been legitimate for Mr. Herbert to rely on Kemmy’s case and McCarron’s case to maintain that the specifics of the sub-section had not been satisfied. But as to the question of whether they had or had not been satisfied, it is not easy to find a justification for a prohibition of the question from the judge. 41. It was clearly in the judge’s mind whether this statutory prescribed step had been taken. Suppose the answer had been in the negative - would anybody have been entitled to object in that situation? 42. There was no interference with the accused’s constitutional rights or of any legal protection that he enjoyed. He was arrested under statutory power and required to agree to the taking of a blood sample or to provide a urine sample. Mr. O’Keeffe had actually been given the part of the sample in the sealed container. What did the interest of justice require? It cannot be said that it was better that the Court should have been and remained ignorant of a simple piece of information that was readily ascertainable. If the courts were to allow the appeal in this case and to prohibit the question that the judge asked, that would impose a straitjacket on a trial judge. That cannot have any foundation in justice. It is manifestly not in the public interest. It is easy to see how the rule would be extended so as to prevent the judge from intervening to ask a question during the course of the evidence on the ground that it would be conducive to an impression of bias. 43. There will be circumstances where it would not be appropriate for a trial judge to intervene. The judge is not entitled to take up a position for one side or the other in a case and to pursue a line of questioning with witnesses that is designed or may be seen or understood to be designed to achieve a particular outcome. The tomes on judicial review are replete with examples of unhappy and indeed unjust interventions by judges, but the circumstances of this case are very far from any question of injustice, except insofar as the prosecution and the public interest are concerned. The test must be what is in the interest of justice. 44. It is not in dispute in this case that the statutory procedure required under s. 18 of the 1994 Act was fully complied with. The only question is how the information that it was fully complied with came to be before the Court. Or, rather, the only question is as to the legitimacy of the means by which that information came before the Court. It happened because the judge asked the Garda a relevant question in light of the application made by the defence solicitor. 45. It seems to me that this case is invoking high principle to justify a proposed procedural prohibition that is not conducive to the proper administration of justice. 46. In Director of Public Prosecutions v. J.S. 15th April 2015, Clarke J. stated at paragraphs 4.8 and 4.11 as follows:-
4.11 However, on the other hand, there is also a significant constitutional value to be attached to the need to ensure that investigative and enforcement agencies (including An Garda Síochána) operate properly within the law. Why do we have elaborate laws concerning arrest, the power to enter premises, questioning and other means of what might be described as non-voluntary evidence gathering? We do so because there is a significant constitutional value in ensuring that there are clear rules which mark the limits of the powers of investigation and enforcement agencies in evidence gathering. Those limits are there to protect us all. There is a high constitutional value in ensuring that those limits are maintained. It follows that there should be consequences, and indeed significant consequences, where those rules are broken.” 48. The judge was entitled to ask the question about a technical procedural matter. Conclusion |