High Court of Ireland Decisions

 


[2002 No. 2243 SS.]

THE HIGH COURT IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

and MARIE QUIRKE

Respondent

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 3^rd March, 2003.

This is an appeal by way of case stated from a decision of Judge John Brophy, a judge of the District Court assigned to District No. 10, pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961 on the application in writing of the prosecutor (hereinafter referred to as 'the director'), he being dissatisfied with the determination of the District Court as being erroneous in point of law, for the opinion of this Court.

The case stated recites the following facts:-

1. At a sitting of the District Court at Navan, County Meath on 25^th July, 2001 Marie Quirke, the respondent herein (hereafter referred to as 'the respondent') appeared before me to answer three complaints the subject matter of three summons served upon her in which she was charged with the following offences, to wit, that, on the 16^th April, 2001, at Durhamstown, Navan, Co. Meath, a public place within the District Court Area of Navan,

(a) She did drive a mechanically propelled vehicle, motor car registration number 92 MH 3833 while there was present in her body a quantity of alcohol such that, within three hours after driving the said vehicle, the concentration of alcohol in her urine exceeded a concentration of 107 milligrammes of alcohol per 100 millilitres of urine contrary to

ss. 49(3) and 6(a) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act 1994, as amended by the Road Traffic Act, 1995 as amended.

(b) She did drive a mechanically propelled vehicle, motor car registration number 92 MH 3833 without holding a driving licence for the time being having effect and licensing her to drive the said vehicle contrary to s. 38 of the Road Traffic Act 1961 and 1984, as amended.

(c) Being the driver of mechanically propelled vehicle, motor car registration number 92 MH 3833 did fail to produce her driving licence there and then to a member of An Garda Síochána, who demanded such production, and did fail within ten days after the date on which such production was demanded to produce such licence, in person, to a member of An Garda Siochána at a Garda Station named by her at the time when such production was so demanded, contrary to s. 40 of the Road Traffic Act 1961, as amended by the Road Traffic Acts 1968 to 1965.

A copy of the summonses, which form part of this case stated, is attached.

2. At the said hearing the appellant was represented by Inspector Patrick J. Gannon of An Garda Síochána, Navan, County Meath. Mr. Colm O'Brian, B.L., instructed by Dermot M. Dempsey & Co. Solicitors, Athboy, County Meath, appeared on behalf of the respondent.

3. The facts as proved or admitted or agreed and as found by me were as follows:

(a) At Durhamstown, Navan, Co. Meath, a public place, at approximately 1.35am on 16^th April, 2001, Garda Roy Dunphy, of the Traffic Unit of An Garda Síochána at Kells, County Meath, stopped motor vehicle registration number 92 MH 3883. Garda Dunphy asked the driver to produce her driving licence. The driver informed Garda Dunphy that she did not have her licence with her. She identified herself as Marie Quirke of Durhamstown, Navan, Co. Meath, the respondent herein. Garda Dunphy detected a strong smell of alcohol from the respondent's breath, her speech was slurred and her eyes were bloodshot and he formed the opinion that she had consumed alcohol. Garda Dunphy assembled an alcolyser in the respondent's presence. He then required her to provide a specimen of her breath by exhaling into the alcolyser, under s. 12 (1) of the Road Traffic Act 1994. She complied with the requirement and the test proved positive. Based on his observations of her condition and the positive breath test Garda Dunphy then formed the opinion that she had committed an offence under s. 49(2) or (3) of the Road Traffic Acts.

(b) At about 1.40 am, Garda Dunphy informed the respondent that he was arresting her under s. 49(8) of the Road Traffic Acts 1961 to 1995 for having committed an offence contrary to s. 49(2) of 49(3) thereof. He told her she was being arrested for drunken driving and cautioned her in the usual manner.

(c) The respondent was conveyed to Navan Garda Station. She was introduced to Garda Goodman, Member in Charge of Navan Garda Station. Garda Dunphy informed Garda Goodman that he had arrested the respondent under s. 49(8) of the Road Traffic Acts 1961 to 1995. Garda Goodman completed the custody record in respect of the (Treatment of persons in Custody in Garda Síochána Stations) Regulations 1987. Garda Campbell handed the respondent a copy of Form C.72(s) – Notice of Rights, read it over and explained it to her. The respondent acknowledged that she knew she had been arrested for drunk driving. Garda Goodman stated that she could contact a solicitor of her choice if she so wished. She was told that a medical doctor would be requested to attend at the Garda Station in order to take samples from her.

(d) Dr. Gujral, a registered medical practitioner, arrived at Navan Garda Station at 2.26am. Garda Dunphy introduced Dr. Gujral at 2.28am to the respondent as a designated doctor and introduced the respondent to Dr. Gujral. Garda Dunphy, in the presence of Dr. Gujral, required the respondent to permit Dr. Gujral to take a specimen of blood from her or, at her option, to provide the doctor with a sample of her urine under s. 13(1) (b) of the Road Traffic Act 1994. Garda Dunphy informed the respondent that a refusal or failure to comply with the requirement was an offence and explained to her the consequences of a refusal.

(e) The respondent chose to give a sample of her urine. In her presence, Garda Dunphy handed Dr. Gujral a box for the taking of a urine sample provided by the Medical Bureau of Road Safety marked 'U', together with a sealed jug. Dr. Gujral broke the seals and the respondent provided a sample at 2.40am. Dr. Gujral complied with the provisions of s. 18 of the Road Traffic Act 1994 in dealing with the sample. Garda Dunphy handed the respondent a yellow certificate and offered her the choice of either sample, informing her of her right to retain either. The respondent took the slip and one of the samples. The remaining sample, along with the prescribed form was placed in the box addressed to the Medical Bureau of Road Safety, which was then sealed. The respondent was released from custody at 2.57 a.m.

(f) On the following day, Garda Dunphy posted the sealed box by registered post to the Medical Bureau of Road Safety. He subsequently received a certificate from the Medical Bureau of Road Safety dated 27^th April, 2001 showing that respondent had a concentration of 161 milligrams of alcohol per 100 millilitres of urine.

4. At the conclusion of the appellant's case, Mr. O'Brian sought a direction on two grounds. He first submitted that the facilities at Navan Garda Station were inadequate for the purposes of the respondent giving a sample of her urine. I rejected this submission without having to hear Insp. Gannon. I followed the decision of the Supreme Court in D.P.P. v. Jenny Lennon [1999] 2 IR 402.

5. Mr. O'Brian's second submission was that the appellant had not established that 20 minutes had elapsed between the time when the respondent had last consumed alcohol and the time when she had taken the alcolyser test. This period of time is that recommended in the "Description and Instructions for Use" for the alcolyser. In response, Insp. Gannon submitted that there is no statutory requirement to the effect that a period of 20 minutes must elapse between the consumption of alcohol by an accused person and their submitting to an alcolyser test. He further contended, relying upon DPP v. Gilmore [1981] I.L.R.M. 102, that an arrest under s. 49(8) of the Road Traffic Acts for having committed an offence under sub-ss. (2) or (3) thereof is lawful where the opinion of the Garda making the arrest was formed solely or partly as a result of a positive alcolyser test. Insp. Gannon argued that, in his evidence before me, Garda Dunphy had made it clear that he had formed his opinion prior to the respondent's arrest partly by reference to the positive breath test and partly on the basis of his own observations.

6. I held that the result of the alcolyser test was a factor in the formation of the opinion held by Garda Dunphy. Garda Dunphy was aware that it was necessary for a period of 20 minutes to elapse between the time a person took a drink and the time at which the test was administered. He was aware that the reason for the requirement was to ensure the reliability of the test. He did not ask the respondent when she had last consumed a drink. I held that Garda Dunphy was aware that the respondent may have had an alcoholic drink with the previous 20 minutes. I therefore dismissed the charges on the basis that the opinion formed by Garda Dunphy for the purpose of arresting the respondent was based in part on the result of an alcolyser test which he knew to be potentially unreliable by reason of his failure to enquire whether the respondent had drunk alcohol within the period of 20 minutes prior to the administration of the test. I further indicated that a similar decision had been arrived at by Judge Groarke in a recent case. Accordingly, I dismissed the charge against the respondent.

7. The opinion of the High Court is sought on the following question:-

In forming the requisite opinion prior to making an arrest without warrant under s. 49(8) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act, 1994 for an offence under s. 49(2) or (3) of the Road Traffic Act 1961 as amended, may a member of An Garda Siochána rely upon a positive result of an alcolyser test and of his prior observations of the respondent where the member is aware that the result of the alcolyser test may be unreliable by reason of the fact, of which the member was aware, that there was a possibility that the person had consumed an alcoholic drink within the previous 20 minutes.

Submissions:-

On behalf of the Director it is submitted by Mr. Anthony Collins of counsel, having referred to s. 49 (2) and (3) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994 ('the Act of 1994') and s. 12 (1) (a) of the Act of 1994, that it does not appear to be in dispute that Garda Dunphy made a lawful requirement of the respondent under s. 12 (1) of the Act of 1994.

Counsel refers to the judgment of Egan J. in Director of Public Prosecutions v. Breheny (Unreported, Supreme Court, 2nd March, 1993) that for a legal requirement to be made under the corresponding provision of s. 12 (1) of the Act of 1961 as then in force, it had to be demonstrated that:-

(a) a person is in charge of a mechanically propelled vehicle;

(b) the person is in charge in a public place, and

(c) the Garda was of opinion that the person concerned had consumed intoxicating liquor.

Counsel submits that no issue therefore arises as to the admissibility of the evidence adduced as a consequence of the respondent's compliance with the demand made of her.

In Director of Public Prosecutions v. Breheny (Unreported, Supreme Court, 2^nd March, 1995) Egan J. indicated that in considering the nature of the opinion to be formed by a member of An Garda Síochana prior to making a requirement under s. 12 (1) of the Road Traffic Acts, proof is not required that the person had consumed intoxicating liquor as a matter of fact. The opinion of the Garda to that effect sufficed provided it was genuinely and reasonably held.

Counsel refers to Hobbs v. Hurley (Unreported, High Court, 10^th June, 1980) where Costello J. at pp. 5 and 6 indicated with regard to the opinion formed by a member of An Garda Síochana that an offence under s. 49 has been committed:-

"The Oireachtas has therefore permitted an arrest to be made when an opinion is arrived at that an offence under the section has been committed – an opinion which does not depend on a conscious determination based on scientific evidence that the statutory limit of alcohol in the blood or urine of the arrested person has been exceeded. The opinion arrived at must, of course, be a reasonable one, and must be one which results for an honest belief come to after facts have been ascertained and considered … In reaching a conclusion that the offence under the section had been committed Garda Hobbs was entitled to rely on his own observations alone, or on his own observations aided by a positive finding on the alcolyser test. The fact that he had no positive scientific knowledge as to the extent of the concentration of alcohol in the suspect's urine does not in any way vitiate the opinion which otherwise he had reached."

In Director of Public Prosecutions v. Gilmore [1981] I.L.R.M. 102, Henchy J. stated, inter alia, at p. 104:-

"It is clear from the …Act …that the breathalyser used was designed merely to indicate the presence of alcohol in the breath. If its use gives a positive result, that necessarily confirms the Garda's earlier opinion that the person tested has consumed intoxicating liquor. If the result of the test is negative, the contrary is not true; it merely establishes that the amount (if any) of alcohol indicated in the breath by the breathalyser is not of such a level as to call for a scientific determination of the actual concentration of alcohol in the blood or urine."

Later at p. 105 he continued as follows:-

"Once the breathalyser test had proved positive, and one, as a result of that, the Garda formed the opinion (unjustified though it was) that the defendant had committed the offence of driving while he was under the influence of an intoxicant to such an extent that he was incapable of having proper control of the vehicle, it follows that the Garda must also have formed the opinion, and justifiably so on the basis of the breathalyser test, that the defendant had, in breach of s.s.(2) or s.s.(3), driven where there was an excessive concentration of alcohol in his blood or in his urine. Before making a lawful arrest under s.s. (6), the Garda cannot be expected to opt, in forming his opinion, for either an offence under s.s.(2) or an offence under s.s. (3), because he cannot anticipate whether the driver, or would-be driver, will choose between giving a specimen of blood and providing a specimen of urine. But if, as was the position here, after the breathalyser test proved positive and the Garda formed the opinion that the defendant had consumed so much alcohol that he was incapable of exercising proper control of the vehicle, that opinion must have encompassed the further opinion that an analysis of a sample of his blood or urine would prove that the had exceeded the blood alcohol or urine-alcohol levels permitted. In other words, the Garda, after he carried out the breathalyser test and before he arrested the defendant, must have formed the opinion that the defendant had committed an offence under s.s. (2) or s.s. (3). I read Part III of the 1978 Act as indicating a statutory intent that a positive result of a breathalyser test is sufficient to justify an opinion on the part of the Garda who carried out the test, albeit an opinion that may later turn out on a more scientific analysis to have been wrong, that an offence under s.s. (2) or s.s.(3) had been committed. And, considering that the Garda had formed the opinion that the defendant's alcoholic condition had deprived him of the capacity to drive properly, the Garda must a fortiori have formed the opinion that the defendant had committed an offence under s.s. (2) or s.s.(3)."

Counsel submits that applying this approach to the facts as found in the instant case, Garda Dunphy had formed the opinion that the respondent had consumed alcohol prior to requiring a specimen of breath under s. 12 (1). It is submitted that the alcolyser test which was subsequently performed confirmed the existence of alcohol in the respondent's breath. The fact that the latter test might have been potentially unreliable does not destroy the reasonableness of the opinion formed by Garda Dunphy. Counsel concedes that prior to invoking s. 12 (1) a member of An Garda Síochána must form a genuine and reasonably held opinion that the person in question has consumed an intoxicant. Having formed that opinion and having lawfully invoked that provision, it is submitted that a positive result of a subsequent breathalyser/alcolyser test is sufficient, whether viewed together with or separately from, the observations made by the arresting member, to justify an opinion on his/her part that an offence has been committed under s. 49, even if that opinion is subsequently proved by scientific analysis to have been incorrect.

On behalf of the respondent it is submitted by Mr. Ó Briain that once the alcolyser test was known to be unreliable, the opinion formed was neither rational nor reasonable. Counsel refers to Director of Public Prosecutions v. Brady [1991] 1 I.R. 337 where O'Hanlon J. held that in a prosecution for driving at a time when the concentration of alcohol in the blood exceeds the permitted limit, it is only necessary that the arresting garda gives evidence that he formed the opinion that an offence under s. 49 of the Act of 1961 had been committed prior to arrest; since such evidence had been given in this case and since the garda had not claimed that his opinion was based in whole or in part on the result of the breath test, and there was significant additional evidence on which he had been entitled to rely in forming his opinion, the evidence concerning the taking of the breath test did not constitute a necessary proof in the case against the defendant.

In the course of his judgment in that case, O'Hanlon J. at p. 340 of the report stated, as follows:-

"In the present case there was additional evidence "of an observational nature" on which the Sergeant was entitled to rely in forming his opinion that the defendant was unfit to drive a mechanically propelled vehicle due to the consumption of intoxicating liquor, and the case does not contain a finding that the opinion was based in whole, or in part, on the outcome of the breathalyser test, or whether the test merely served to fortify an opinion already formed.

Accordingly, I conclude that the evidence concerning the breath test did not form part of the evidence which was necessary in the circumstances of the present case to lead to a conviction of the defendant on the charge brought against him and I am not prepared to hold that the failure to give formal proof of the opinion of the Sergeant that the defendant had consumed intoxicating liquor at the time when he asked him to submit to the breath test, invalidated all the steps subsequently taken to establish the guilt of the defendant."

Counsel submits that the opinion in the instant case was flawed as the garda was aware of the potential reliability of the alcolyser test. Based upon this submission, counsel says that the entire of the prosecution evidence subsequent to the test must fall.

Counsel refers this court to the decision of the House of Lords in Director of Public Prosecutions v. Carey [1970] A.C. 1072.

This case concerned the application of the alcolyser test in England. The report of the case shows that the manufacturer's instructions supplied with the alcolyser stated that at least 20 minutes should elapse between the consumption of alcohol and using the device. In that case the accused was required by the police to provide a breath sample and did so and when the same proved positive he was arrested and brought to a police station where a fresh breath test was provided together with a specimen of blood. It was found in the trial of the offence in question by the St. Alban's justices that the respondent had consumed alcohol within 20 minutes preceding the test and the information was dismissed.

The Director of Public Prosecutions was given leave to appeal on the question whether it was necessary that the instructions accompanying a device approved by the Home Secretary for carrying out a breath test to the effect that it was essential that at least 20 minutes should elapse between the drinking of alcohol and using the device had to be strictly complied with before a police officer had a power of arrest under the relevant enactment in England.

Counsel acknowledges that a garda cannot require a person to say when they last consumed alcohol. Nevertheless, counsel submits that if there is reason for a garda to suspect that the alcolyser test might be unreliable the garda should ask the person concerned when they last consumed alcohol.

Counsel refers to portion of the judgment of Viscount Dilhorne in Director of Public Prosecutions v. Carey [1970] A.C. 1072, where at p. 1085 he stated, inter alia, as follows:-

"My conclusion is that in the absence of knowledge of and in the absence of reasonable cause to suspect the consumption of alcohol within the preceding 20 minutes, a police officer is not to be regarded as failing to carry out the instructions, if he does not delay carrying out the test. I do not think it is incumbent upon him to establish the negative, that no alcohol has been consumed within the 20 minutes.

On the other hand, if he does know or has reason to suspect the consumption of alcohol within the time, to comply with the instructions, he must delay the test. If for instance he sees a driver consume alcohol after having been stopped, he should delay the test."

Counsel submits that if a garda is aware of the potential unreliability of the alcolyser test he should ascertain when the person concerned last consumed alcohol.

In reply to these submissions Mr. Collins refers to portion of the judgment of Diplock L.J. in the same case where he stated, inter alia, at p. 1097:-

"Since the only duty of the constable carrying out a breath test is to act bona fide, unless the circumstances actually known to him at the time that he administers the test are such as to make it appear to him probable that the suspect has in fact been drinking within the last 20 minutes, there is, in my view, no obligation upon him to inquire. The suspect is under no legal obligation to reply to such inquiry or, if he does reply, to give a true answer; and it would, in my view, be casting an unrealistic burden upon police officers called upon to administer the Act to hold that they were under a duty to conduct in every case what might well be a futile interrogation as to the precise time at which the suspect last consumed alcohol or an aromatic drink (whatever that may be) or used a mouth spray. So long as the constable bona fide believes at the time that he administers the test and obtains a positive result that the indication of blood alcohol level given by the device is not falsely high the fact that it is proved at the trial that the accused had in fact consumed alcohol less than 20 minutes before the test was carried out will not make the arrest unlawful or invalidate a subsequent conviction for an offence under section 1 of the Act if the blood test shows that the proportion of alcohol in the accused's blood did in fact exceed the prescribed limit."

Counsel further refers to the judgment of Viscount Dilhorne at pp. 1084-1085 where he stated, inter alia, as follows:-

"To follow the instructions, a police officer must assemble the device correctly. If he knows or has reason to suppose that the suspect has consumed alcohol within the preceding 20 minutes, then it is, in my opinion, necessary for him to wait until he is satisfied that 20 minutes have elapsed before he carries out the test. But if he does not know and has no reason to suppose that alcohol has been consumed within 20 minutes of the time of the test, has he simply to comply with the instructions and to carry out a correct test, to find out when the last drink was consumed? In this case it is found as a fact that the police officer who made the first test did not ascertain when the respondent had last drunk alcohol. He therefore did not know at the time of the carrying out of the test that the respondent had consumed alcohol between 10 and less than 20 minutes before. The case stated does not indicate that he had any reason to suppose that that had been the case. On what was known to him at the time he carried out the test, there was no reason for him to delay taking it.

If the suspect is not prepared to give the information, in the vast majority of cases it will be impossible for the police officer to find out when he last had a drink and so to find out whether he should delay the test. If the suspect says that he has not had a drink within the 20 minutes or discloses that he has had one within that time, the police officer, in my opinion, is entitled to rely on what he has said even if it be subsequently proved that it was a lie.

If, acting bona fide and reasonably on what is known by him at the time and when he has no reason to suspect the consumption of alcohol within the 20 minutes, the police officer does not delay the carrying out of the test, that test is not, in my view, invalidated by proof at the hearing of the information that he had had a drink within that time; nor, in my opinion, does such proof convert an arrest under section 2 (4) into a wrongful arrest.

I express no opinion on whether a police officer should ask a suspect when he had his last drink. I see no reason why he should not do so, but bearing in mind the possibility of arrest under s. 6 of the Act of 1960 and of a charge under that Act, of an arrest under that section and a charge under s. 1 (1) of the Act of 1967, and of his answer being used in evidence against him, it may be that most suspects would refuse to answer.

It suffices to say that neither explicitly nor implicitly does the Act require a constable to make such an inquiry. The manufacturer's instructions do not do so."

While counsel for the accused submits that the garda was under a duty to wait 20 minutes, counsel for the director submits that no factual basis is disclosed on the case stated to show a potential flaw. Counsel submits that the matter might be different if there was some reason to suspect alcohol had been consumed by the accused within the previous 20 minutes.

Counsel submits that in the instant case there is no basis for invalidating the arrest of the accused and that the court cannot do so.

With regard to the case of Director of Public Prosecutions v. Brady [1991] 1 I.R. 337, it is submitted that this authority does not support the accused's case. It is submitted that there is no evidence of a requirement under s. 12 in the instant case.

Conclusions:-

It is clear that this case must answer the question posed by the learned judge of the District Court on the basis of the material contained in the case stated itself. The case stated does not disclose that the garda had any material to show that the test was unreliable. While the possibility averted to by the learned District Court judge in this case must always exist, it is clear from the facts of the case stated that the garda was not furnished with any information in relation to the accused which would indicate that he had knowledge of, or reasonable cause to suspect that the accused had consumed intoxicating liquor within the period of 20 minutes prior to administering the alcolyser test. In these circumstances, I am satisfied that there is no material in the case stated to suggest that the opinion formed at the time by Garda Dunphy was anything other than a bona fide opinion.

While Garda Dunphy might have asked the accused when she last consumed intoxicating liquor there was no obligation on the accused to answer the question and any answer given might have been untrue.

I believe that the approach taken by the House of Lords in Director of Public Prosecutions v. Carey [1970] A.C. 1072 is the appropriate approach, namely, unless the garda knows or has reason to suppose that the suspect has consumed alcohol within the preceding 20 minutes, then there is no necessity for him to await the period of 20 minutes before he can form a bona fide opinion based on the alcolyser test. As indicated by Viscount Dilhorne at p. 1085:-

"If, acting bona fide and reasonably on what is known by him at the time and when he has no reason to suspect the consumption of alcohol within the 20 minutes, the police officer does not delay the carrying out of the test, that test is not, in my view, invalidated by proof at the hearing of the information that he had had a drink within that time; nor, in my opinion, does such proof convert an arrest under [the section] into a wrongful arrest."

I am satisfied that the learned District Judge had no basis of knowing whether the accused had or had not consumed intoxicating liquor within the previous 20 minutes. I believe that the standard applied by the learned judge was incorrect in law as it is not sufficient to hold that the test was potentially unreliable especially where this conclusion was based upon the fact that the garda had failed to enquire whether the respondent had consumed alcohol within the period of 20 minutes prior to the administration of the test. As indicated, the garda had no authority to compel any person to answer a question as to when they last consumed intoxicating liquor.

In reaching my conclusion I am fortified by the decisions of the Superior Courts in this jurisdiction in the cases of Director of Public Prosecutions v. Breheny (Unreported, Supreme Court, 2nd March, 1993), Director of Public Prosecutions v. Gilmore [1981] I.L.R.M. 102, Director of Public Prosecutions v. Brady [1991] 1 I.R. 337 and Hobbs v. Hurley (Unreported, High Court, 10^th June, 1980).

Accordingly, I am satisfied that the learned judge of the District Court erred in law in his determination. With regard to the particular question posed in the case stated, I am satisfied that the same should be answered in the positive. The issue is not whether the result is reliable but rather whether the opinion formed by the garda upon which the arrest is made is a bona fide opinion which is reasonable. I am satisfied on the basis of the material in the case stated herein that there was no basis upon which the learned judge of the District Court could have concluded that the opinion formed was other than a reasonable and bona fide opinion.