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Cite as: [2003] IEHC 124
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Whelan v. Kirby & Anor [2003] IEHC 124 (7 November 2003)
[2002 No. 131 JR]
BETWEEN
APPLICANT
RESPONDENT
[2002 No. 206 JR]
BETWEEN
PLAINTIFF
DEFENDANT
[2002 No. 205 JR]
BETWEEN
PLAINTIFF
DEFENDANT
[2002 No. 334 JR]
BETWEEN
PLAINTIFF
DEFENDANT
[2002 No. 204 JR]
BETWEEN
PLAINTIFF
DEFENDANT
[2002 No. 261 JR]
BETWEEN
PLAINTIFF
DEFENDANT
[2002 No. 468 JR]
BETWEEN
PLAINTIFF
DEFENDANT
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 7th November, 2003.
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.
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).
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, 1961 as 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."
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.
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.
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, 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 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."
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.
On 23rd 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 1st 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.
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.
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 23rd October, 2001, for mention only on this basis. It is stated that on 23rd 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.
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 2nd August, 2001, Mr. Lynam was informed by Inspector L. McCahey that the Director of Public Prosecutions had directed that inspection facilities be extended, subject to there being an expert from the Medical Bureau present at the same time. Mr. Lynam was informed that he might liaise with Sergeant Tim Walsh of Dun Laoghaire Garda Station if inspections were required. Having entered into correspondence with Sergeant Walsh on 8th August, 2001, he was also informed by letter dated 30thAugust, 2001, that requests for documentation and information relating to the approval, supply and testing of the EBT equipment should be directed in writing to the Director of the Medical Bureau for Road Safety, Department of Forensic Medicine, Earlsford Terrace, Dublin 2.
It appears from the evidence before this Court that documentation was then furnished to the applicant's solicitor by Sergeant Timothy Walsh of Dun Laoghaire Garda Station being documentation entitled "Evidential Breath Alcohol Testing Course" and "Supervisor Supplemental issued to members of An Garda Station." It was indicated subsequently to Mr. Lynam that the Gardaí did not have authority to allow any person to inspect the apparatus in question as it remained the property of the Medical Bureau of Road Safety, which has sole responsibility for the upkeep of the intoximeter, a totally independent body from An Garda Síochána.
When contacted the Medical Bureau of Road Safety asked, in relation to the request, that an expert retained by the applicant be granted access to the intoximeter in Dun Laoghaire Garda station for clarification as to exactly what the expert required and what it was proposed to do, so that the requirements could be addressed as helpfully as possible and in accordance with law. The reply which issued from Mr. Lynam to the Chief Analyst of the Medical Bureau of Road Safety on 7th September, 2001, indicated that the expert required the following:
"(a) Unrestricted access to the device in question for six to eight hours in order to undertake meaningful tests.
(b) Space to set up two other evidential breath tests machines, both fully certificated, to use during comparison testing.
(c) Full details of when the intoximeter was calibrated between the dates of the test and the date of the client's original test. (sic)
(d) Full details of any parts, components or software of the device that have been altered, serviced or placed between the two relevant dates."
In response to this requirement it was indicated by the solicitors acting for and on behalf of the Medical Bureau of Road Safety that the Bureau would require that any such tests would have to be supervised by a member of its staff and possibly also by representatives of the manufacturers of the instrument. It was indicated that after the applicants' expert had tested the instrument, the Bureau would be obliged to carry out further tests on it before it could be put back into use under the Road Traffic Acts. It was indicated as follows in the letter:
"While our client does not wish to create unreasonable difficulties for you and your client in relation to testing the equipment, we submit that in view of the above it will be necessary for a court order to be obtained directing the circumstances in which the equipment may be tested and also dealing with the question of costs which would be incurred by our Client in supervision, retesting etc. We submit that our client should be made a notice party and have representation at the hearing of the application."
The letter then went on to indicate that points (c) and (d) of the letter of 7th September dealing with details of the calibration of the machine and the servicing and replacement of parts had been furnished.
Ultimately an application was made to Judge Kirby on 1st November, 2001, for an order in favour of the accused directing/authorising inspection and examination of facilities of the intoximeter situated at Dun Laoghaire Garda Station and this application was refused by the first respondents.
Submissions
Counsel for the applicants points out that the presumption contained in s. 21 of the Act of 1994 is a rebuttable presumption. It is submitted that each applicant must be entitled to challenge the validity of the statements produced by the intoximeter but clearly will not be in a position to do so without access to the intoximeter itself. Counsel refers to a number of authorities including Kiely v Minister for Social Welfare [1971] I.R. 21, Killiney and Ballybrack Development Association Ltd. v Minister for Local Government [1978] 112 I.L.T.R. 69, The State (Williams) v Army Pensions Board [1983] I.R. 308 and the more recent decision in the case of Braddish v. Director of Public Prosecutions [2001] 3 IR 127. These authorities were advanced with regard to the requirements of natural justice and the fact that each party to a case must be given an opportunity of presenting its case. With regard to the authority of Braddish v. Director of Public Prosecutions, counsel refers to a passage in the judgment of Hardiman J. at p. 133 where he stated as follows:
"It is important to bear in mind that the evidential items to which the foregoing applies are not only those with a direct and established evidential significance but include those which, in the words of Lynch J. in Murphy v Director of Public Prosecutions [1989] I.L.R.M. 71, at p. 76 'may give rise to the reasonable possibility of securing relevant evidence'."
Counsel also refers to the authority of the Director of Public Prosecution v Adrian Daly (Unreported, High Court, Kelly J., 20th December, 2001) in which the learned High Court judge had to answer a case stated from the District Court posed as follows:
"Whether it is necessary, having regards to the provisions of s. 6 (2) of the 1994 Road Traffic Act for the prosecution in a prosecution pursuant to s. 49 (4) of the Road Traffic Acts 1961-1995 to prove that an apparatus purporting to determine the concentration of alcohol in an accused person is an approved apparatus in the sense of that term in the Road Traffic Acts 1961-1995 and whether it is necessary for the prosecution to prove that the apparatus has been approved by the Medical Bureau of Road Safety."
In that case Kelly J. referred to the authority of Director of Public Prosecutions v. Syron [2001] 2 IR 105. There, O'Higgins J. held that there had been no denial of the right of the accused to challenge the evidence and in particular the certificate in whatever appropriate manner he saw fit. In that case O'Higgins J. said at p. 116:
"[t]hat might include, in appropriate cases, cross-examination of the garda as to the accuracy and provenance of the device used, the investigation as to whether the device had been properly calibrated by the appropriate person and such other matters as might be relevant to the assessment of the accuracy of the evidence generated by the device. In this case there was no such cross-examination. Moreover, there is nothing that would preclude the calling of witnesses on subpoena, if necessary, to impugn the reliability of the prima facie evidence."
Counsel submits that in the present case it is quite clear that the solicitor for the applicants sought to challenge the evidence which might be tendered against them by applying for an order directing/permitting/authorising the inspection of the relevant Intoximeter E.C./I.R. apparatus at Dun Laoghaire Garda Station. It is submitted that the application was consistently refused by the first named respondent and ultimately each applicant was convicted on the basis of the statement issued by that intoximeter, notwithstanding an application for dismissal on the basis of the accused's inability to call evidence or test the prosecution evidence by reason of the refusal of inspection. On this basis it is submitted that the principles of natural justice were infringed and that the applicants are entitled to orders quashing the convictions imposed.
In the case of the applicants Tara Henry an issue has been raised with regard to delay in applying to this Court. It is indicated on her behalf that the order of conviction was entered on the 14th November, 2001, but the application for leave to seek judicial review was not brought until the 13th May, 2002. The applicant's solicitor has indicated in an affidavit that the certified copy of the District Court order was not made available to him until the 25th April, 2002 and in those circumstances it is submitted that there was no undue delay in moving the application thereafter.
A further point raised in support of the application for certiorari is that the orders of conviction (except in the case of Tara Henry) do not show jurisdiction on their face. It is pointed out that the certified copies of convictions exhibited by the applicants do not record that any conviction was in fact entered by the first named respondent. Counsel relies on the fact that the District Court is, pursuant to s. 13 of the Courts Act, 1971, a court of record and s. 14 thereof provides as follows:
"In any legal proceedings regard shall not be had to any record (other than an order which, when an order is required, shall be drawn up by the district court clerk and signed by a justice or a copy thereof certified in accordance with the rules of court) relating to a decision of a justice of the district court in any case of summary jurisdiction.
In the instant case the applicant applied for and received an order such as that referred to by s. 14 of the Act of the 1971. It is submitted that upon exhibiting the said order for the purposes of these proceedings, this Court, having given leave to challenge the said order should not thereafter have cognisance of any further purported order, the first order having been an order validly within the Court's cognisance and exhibited for the purposes of it being quashed and furthermore being the subject matter of the order giving leave to seek judicial review herein. It is submitted that once the record of the Court was created in the manner contemplated by s. 14, regard should not be had to the attempt to create any further record as to do so would lead to a state of complete uncertainty as to the actual record of the Court's order.
On behalf of the respondent it is submitted by Mr. Feichin McDonagh S.C. that there is an air of unreality about the applications brought by the applicants in this case. Counsel refers to the fact that the request is for an unnamed expert with unspecified expertise to have unspecified tests on the machine carried out. With regard to the suggestion that there is a possibility that the tests carried out could cast doubt on the proper working of the machine, counsel submits that there is no evidence that an expert can support this proposition. It is submitted that there is no evidence that an expert, if afforded an opportunity of examining the intoximeter in question, would have a reasonable prospect of establishing the workings of the machine over a year earlier. It is submitted that there is a deafening silence in the applicants' cases, even on a hearsay basis, in this regard. It is submitted that it is unreal to say that one year after the event that the applicants can show that they would have obtained evidence rebutting the prosecution case. Counsel submits that the applicants have in effect "shifted the goalposts" when considering their case in the context of the earlier requests which were made. Initial requests were for documentation. This documentation was provided. It is submitted that further information which was offered was not taken up and that no specific document has been outstanding as of October, 2001. Counsel refers to the involvement of the Medical Bureau. Counsel submits that it is not appropriate or was not appropriate that an order be received from the District Court in the circumstances. Counsel submits that it is open to Mr. Lyman to seek and establish on evidence that the requirements of natural justice that had to be afforded to the applicants were such that there was a real necessity for some particular thing to have occurred. Counsel submits that the applicants seek to establish that the trial in question has been unfair in the absence of establishing why an inspection was in fact needed in this case.
Counsel refers to the judgment of Denham J. in the case of Director of Public Prosecutions v. Gary Doyle [1994] 2 I.R. 286 where at pages 301 and 302 she addressed the issue of the furnishing of documentation in that case. Counsel refers to that portion of the judgment at p. 301 in which it was indicated that a request on behalf of an accused cannot be the determining factor in deciding whether or not statements should be furnished to an accused pre-trial. In that case Denham J. also addressed the duty of a District Court judge of ensuring that justice, incorporating fundamental constitutional concept of fair procedures, is delivered in court. She indicated that the test for the District Court judge to apply in each case is whether in the interest of justice on the facts of the particular case the accused should be furnished pre-trial with the statements on which the prosecution case will proceed. Counsel refers to p. 302 of the report where it was indicated by the learned Supreme Court judge that amongst the matters which a District Court judge may find relevant when deciding whether or not constitutional justice requires statements or documents to be furnished includes (a) the seriousness of the charge and (b) the importance of the statements or documents. It is submitted by counsel that applying these principles to the instant case that it is of relevance to note the importance, if any, which was put before the District Court judge attaching to the furnishing of the facility which was requested. It is submitted that there was no indication of the importance of or the relevance of the facilities being sought. Furthermore, it is submitted that in the instant cases coming before this court the affidavits filed on behalf of the applicants are silent also in this regard. It is submitted that one is left in the dark as to whether it is relevant to carry out an examination of the machines one year after the events in question. Counsel refers to the fact that the instrumentation in question was complex and submits that the machine in question purports to give foolproof evidence. Counsel refers to the authorities of Braddish v. Director of Public Prosecutions [2001] 3 IR 127 and Dunne v. Director of Public Prosecutions [2002] 2 IR 305 and in the more recent decision of the Supreme Court in the case of McGrath v. Director of Public Prosecutions and Bowes v. Director of Public Prosecutions (Unreported, Supreme Court, 6th February, 2003). Counsel submits in this regard that the proposed principle to be addressed is whether there is a real risk of an unfair trial. Counsel submits further that the District Court judge had no jurisdiction to make the order sought in the instant case. It is submitted that one may seek to persuade a judge that the interest of justice requires that the facilities be afforded. It is submitted, however, that this is somewhat different to what was requested of the respondent judge in the instant case.
Counsel refers to the portion of the judgment of Denham J. in the Director of Public Prosecutions v. Doyle [1994] 2 I.R. 286 case where at p.303 she addressed the nature of the procedure before the District Court judge to determine the issue and the safeguards available. In that case it was indicated that the very nature of summary trial enables a court to adjourn more easily than a trial on indictment before a jury. It is submitted that it was open to the applicants in the instant case before the District Court to apply for adjournments of the hearing, if necessary, to enable an expert to give evidence.
With regard to the terms of the order counsel refers to the provisions of O. 12, r. 7 of the Rules of the District Court, 1997 (S.I. 93 of 1997) dealing with the power of the court to correct errors. Counsel refers to the fact that in each case in which it is alleged that there was a defective order an affidavit has been put before the court sworn by Mr. Guckian who has not been cross-examined in these proceedings indicating that on 12th November, 2002, he received a copy of an order made at Dun Laoghaire District Court whereby the respondent judged that the applicant in each of these cases be convicted of the offence in question contrary to s. 49 (4) and (6) (a) of the Road Traffic Act, 1961 as inserted by section 10 of the Road Traffic Act, 1994.
He also imposed a penalty in respect thereof and disqualified the applicant in each case from holding a driving licence for a period of two years, endorsing particulars for the said disqualification on the applicant's driving licence in each case. While it does now appear that there are two versions of the order made by the respondent, both purporting to be true copies, counsel refers to the fact that, in light of the affidavit before the court by Mr. McGuckian, there has been no replying affidavit taking further issue with what was stated therein. Counsel submits that no error has been established in the original record. Counsel further submits that on a reading of the affidavits filed in these cases, there has been no averment that the respondent judge did not convict each of the applicants.
In reply counsel on behalf of the applicants points out that there is no affidavit from the State Solicitor detailing how the fresh order came into his possession. With regard to the intoximeter itself, it is submitted that the intoximeter lies at the heart of the evidence and that in these circumstances there is no need for the applicants to call expert evidence in support of their contentions. It is submitted further that it is manifest that the evidence in question is relevant. It is also submitted that there is no reason why the applicants and defendants before the District Court should tell the prosecution why they propose to inspect the machine in question. It is submitted that the applicants are entitled to keep their counsel in this regard.
Conclusions
It is accepted that the onus rests on the applicants to show that the failure to adjourn the hearings in the District Court until after inspection facilities had been accorded to the applicants in each case, was such as to deprive the applicants of a fair trial by reason of the failure to accord the applicant natural justice in each case. It is clear that neither the Director of Public Prosecutions nor the Garda Síochána could afford the applicants the right of inspection in circumstances where the apparatus in question was not under their control. The Medical Bureau indicated certain conditions which it considered would have to apply in the context of an examination of the machine in question in the letter of the 28th September, 2001, from its solicitors. It appears that the applicants did not accept the terms of the letter when in the reply of the 9th October, 2001, it was stated:
"The obligation rests upon the State to address the issue of access to the instrument itself as a party with direct responsibility for the prosecution of the offence."
It is clear that the Director of Public Prosecutions did not have responsibility for access to the instrument although he was directly responsible for the prosecution of the offences in question.
I am satisfied that the onus rested upon the applicants to satisfy the District Court that the interests of justice required the examination of the instrument in question and that the applicants were prepared to meet the reasonable requirements of the Medical Bureau. I am satisfied that the onus also lay on the applicants to demonstrate to the respondent judge the importance of the inspection and testing requested, in light of the prevailing circumstances.
In circumstances where the respondent judge refused to adjourn the hearings and where it appears that he had no authority to direct the Medical Bureau to afford to the applicants the right of inspection, testing etc. and proceeded with the prosecution, I am satisfied that the applicants coming before this Court must show that there was a fundamental want of justice such that the convictions in question should be set aside. I am not satisfied that the applicants demonstrated to the District Court judge that a further adjournment was reasonable in the circumstances and in a review of the decision of the District Court judge to proceed to hear the prosecution case without affording a further adjournment, I am not satisfied that the respondent acted in excess of jurisdiction or contrary to the principles of natural or constitutional justice.
The applicants have failed to demonstrate that the failure to adjourn the hearing in question was such as to deprive them of a fair trial. No evidence has been lead to establish what could have been determined by an inspection of the instrument in question at a time one year after the same was used to determine the concentration of alcohol in the blood of each applicant. I am satisfied that to succeed on this application the applicants must satisfy this court that they have been deprived of a reasonable possibility of rebutting the evidence preferred against them. This they have failed to do.
With regard to the form of the District Court orders it is clear that an error existed in the drawing up of the orders. It has not been suggested that the respondent did not find the applicants guilty of the offences as charged or that he did not convict them. The penalties imposed and recorded in the orders could only have been imposed in circumstances where a conviction had been entered against the applicants. While the affidavit of Mr. McGuckin could have given more information as to the circumstances in which the amended record came into his possession, I am satisfied that the fresh certified copy orders in question represent the reality of what occurred in the District Court and indeed this has not been disputed in these proceedings.
In all the circumstances I am satisfied that the defect in the original certified orders is not such as to warrant the orders of the District Court being quashed.
In conclusion I am satisfied that the applications before this court must be refused.