H327
Judgment Title: Dpp -v- John Bourke Composition of Court: Quirke J. Judgment by: Quirke J. Status of Judgment: Approved |
Neutral Citation Number: [2005] IEHC 327 THE HIGH COURT [2005 No. 530 S.S.] IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED BETWEENPURSUANT TO SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS AMENDED AND EXTENDED BY THE PROVISIONS OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 THE DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT AND JOHN BOURKE RESPONDENT
This is an appeal by way of Case Stated by Judge Mary C. Devins 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 of the appellant who was dissatisfied with the determination of the learned District judge as being erroneous in point of law. FACTUAL BACKGROUND 1. The respondent appeared before the learned district judge at Castlebar District Court on 20th November, 2002, charged with the commission of an offence contrary to s. 49(4) and (6)(a) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act 1994. 2. The charge arose out of an incident on 4th August, 2005, when the respondent was arrested by Garda Martin McHugh who had formed an opinion that the respondent was committing or had committed an offence under s. 49(2), (3) or (4) of the Act of 1961. 3. Having complied with all relevant statutory requirements Garda McHugh, pursuant to the provisions of s. 13(1)(a) of the Road Traffic Act 1994 required the respondent to provide two specimens of his breath. The respondent complied with that request. The Intoxilyzer which records the concentration of alcohol present in human breath printed two identical statements indicating that there was a concentration of 39 microgrammes of alcohol per 100 millilitres within the breath sampled. 4. The terms of s. 17 of the Road Traffic Act 1994 were then fully complied with by Garda McHugh. The respondent acknowledged receipt of the statements by placing his signature upon each and by returning one statement to Garda McHugh. 5. At the hearing before the learned district judge on 20th November, 2002, the evidence adduced on behalf of the appellant included and was reliant upon the printed statement produced pursuant to the provisions of s. 17 of the Act of 1994 and signed by the respondent. The statement provided inter alia that both breath specimens provided by the respondent pursuant to s. 17 of the Act of 1994 had been provided at 2.14 am on the 4th August 2005. 6. At the conclusion of the evidence adduced on behalf of the appellant the respondent’s solicitor requested the learned district judge to dismiss the charge submitting that it was not possible for the Intoxilyzer to analyse two specimens of breath and to purge the machine within a 60 second period. He further submitted that if that was possible, then the printed statement should have recorded, on its face and shown in minutes and in seconds, when each precise function was performed by the machine. 7. At the request of the appellant the learned district judge adjourned the proceedings to enable the appellant to adduce additional evidence. On 20th October, 2003, a Ms. Catherine Pauline Leavy from the Medical Bureau of Road Safety testified in the proceedings. She provided the court with details concerning the supply, approval, and testing of the Intoxilyzer. 8. In evidence she indicated that the Bureau’s scientists had, at her request, carried out tests on 28th January, 2003, in controlled laboratory conditions. These tests had demonstrated that it was possible to obtain two breath specimens in under 60 seconds. She indicated that this allowed a minimum of 7 or 8 seconds for the provision of the first specimen, a further 30 seconds which she described as a “clearing period” and the further 7 or 8 seconds for the provisions of the second specimen. She confirmed that the machine was not programmed to report times in minutes and seconds. 9. Having heard further submissions and considered the evidence the learned district judge decided that “…there was sufficient rebuttal of the presumed ‘prima facie’ evidence on the face of the statement supplied pursuant to s. 17 of …” the Act of 1994. She dismissed the charge. 10. She has sought the opinion of this court as to whether or not she was correct in law in so doing. RELEVANT STATUTORY PROVISIONS Section 17 of the Act of 1994 identifies the procedure which must be followed after provision of a breath specimen pursuant to s. 13 of the Act. It provides (at subsection 2 thereof) that:
Once the statement has been proved in evidence the onus of proof shifts from the prosecution to the accused (see Director of Public Prosecutions v. Tony Corcoran), (Unreported, High Court McCracken J., 22nd June, 1999). In Director of Public Prosecutions v. Collins [1981] I.L.R.M. 447 an accused person was convicted in the District Court of an offence pursuant to the provisions of s. 49(2) of the Road Traffic Act 1961 as amended – i.e. driving a mechanically propelled vehicle in a public place when the concentration of alcohol in his blood exceeded the permitted level. He appealed to the Circuit Court where the judge stated a case for the opinion of the Supreme Court. He asked inter alia:
The mere suggestion of Counsel for the defendant that the unspecified white substance could possibly have produced a false analysis to the extent of showing the offence charged to have been committed, when in fact it had not been committed, is not sufficient to discharge the evidential burden of proof which lay on the defendant as to this issue. To suggest that something may have happened, or may have produced a particular result, is one thing; to adduce evidence pointing in the direction of that possibility is another matter. The law acts on the latter, but not on the former. Where, as in this case, the prosecution has adduced evidence showing the existence of all the evidence necessary for the commission of the offence, and the defence wish to controvert or cast the necessary doubt on the prosecution case by suggesting the existence of a factor which would justify the acquittal the evidential burden as to that factor passes to the defence.” He continued:
On its face it identified the respondent and continued:
The learned district judge dismissed the charge preferred against the respondent on the ground that “…the face of the statement supplied pursuant to s. 17…” of the Act contained “sufficient rebuttal of the presumed ‘prima facie’ evidence …”. It was not open to her to dismiss the charge on that ground. The only information contained on the face of the certificate was information comprising evidence consistent with and supportive of the appellant’s case against the respondent. It has been argued on behalf of the respondent that the evidence adduced by Ms. Catherine Pauline Leavy on behalf of the appellant was sufficient to raise a doubt within the mind of the learned district judge sufficient to displace the presumption created by s. 21 (1) of the Act of 1994. I do not accept that contention. The Case Stated by the learned district judge does not indicate that the evidence adduced by Ms. Leavy was in any respect inconsistent with the information contained upon the face of the certificate or cast doubt upon the accuracy of that information. Mr. Crowley on behalf of the respondent submitted that it was not possible to analyse two specimens of breath within a 60 second period. That was no more than a suggestion. As such it was insufficient to displace the presumption created by s. 21 (1) of the Act of 1994. The suggestion was not accepted as valid by Ms. Leavy when she testified. The evidence of Ms. Leavy cannot accordingly be deemed to have displaced the presumption and indeed in the Case submitted the learned district judge did not say that it did. She concluded that she should dismiss the charge by virtue of the provisions on the face of the statement. I do not believe that such a conclusion was warranted. It is important to add that the displacement of the presumption created by the s. 21 (1) of the Act of 1994 will not automatically result in an acquittal. In cases where the presumption has been displaced the court must then go on to consider all of the evidence adduced by the parties and may convict if satisfied of the accused’s guilt on the evidence and beyond a reasonable doubt. It follows from the foregoing that it is the opinion of this court that the learned district judge was not correct in law in dismissing the charge. Accordingly the case will be remitted back to the District Court. |