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Cite as: [2000] 2 ILRM 68, [1999] IESC 59

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O'Regan v. D.P.P. [1999] IESC 59; [2000] 2 ILRM 68 (20th July, 1999)

THE SUPREME COURT

236/98 & 272/98

BARRINGTON J

MURPHY J

BARRON J

BETWEEN:

PAUL O’REGAN

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE UINSINN MACGRUAIRC

RESPONDENTS

Judgment of Murphy J delivered the 20th day of July, 1999 [Nem. Diss.]

1. In the written submissions to this Court made on behalf of the Appellant the issue raised by the appeal was identified in the following terms:-

“Whether in a criminal prosecution the Director of Public Prosecutions is under a duty to call as a witness or tender for cross-examination all available witnesses who can give evidence directly material to the issues in the prosecution; and, in particular, to call Dr Prendiville as a witness, or tender him for cross-examination, in the instant prosecution, and whether, the Director of Public Prosecutions having failed to do so, the learned District Court judge should have called the doctor as a witness to allow him to be cross-examined on behalf of the applicant.”

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2. The circumstances in which that and associated issues arose are as follows. By a summons dated the 5th day of December, 1996 the Appellant was charged with offences under section 49(2) of the Road Traffic Act, 1961 (as amended) and section 51(A) of the Road Traffic Act 1961 (as amended). In summary, these were charges alleging that the Appellant had an excessive concentration of alcohol in his blood and drove a mechanically propelled vehicle in the City of Cork without reasonable consideration on the 18th May, 1996.

3. The trial of those charges was heard by Judge Uinsinn MacGruairc, the secondly named Respondent, in a trial which commenced on the 13th March, 1997. The Appellant was represented by Mr Denis O’Sullivan, Solicitor. Evidence was given by four members of the Garda Siochana as to the manner of the Appellant’s driving: the suspicions aroused, his arrest and the circumstances in which and the times at which blood samples were taken from the Appellant by Dr Prendiville. Evidence was given by Garda Kilroy that he forwarded one blood sample by registered post to the Medical Bureau of Road Safety and that subsequently he received from that Bureau a certificate showing a concentration of 221 mg of alcohol per 100 ml of blood. That certificate was handed into Court. Neither Dr Prendiville nor any witness from the Bureau was present in Court or tendered as a witness on behalf of the prosecution.

4. At the conclusion of the prosecution case, the solicitor on behalf of the Appellant sought a direction on the grounds that there had been delay in the issue and service of the summons. That application was refused.

5. Apart from that application, the cross-examination by Mr O’Sullivan of the garda witnesses had indicated a variety of challenges to the prosecution case. In particular it was put

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explicitly to the Gardai that the Appellant was arrested in or about 11.15 pm and not at or about 12.50 am as sworn by the arresting officers. It was put bluntly to Garda Quinn that he had committed perjury and that he had placed the time of arrest at a later hour so as to bring the taking of a sample within the three hour period from the time of driving required by the Road Traffic Act. It was clearly established - and not disputed - that the sample was taken by Dr Prendiville at 2.15 am. Again, it was put to Garda Mullane, who was the observer in the car driven by Garda Quinn, that the record made by him of the time of arrest had been falsified. The cross-examination raised two further issues which were emphatically denied by the prosecution witnesses. First, that an effort had been made by Garda Kilroy, who was on duty as station orderly of the Mayfield Garda Station on the evening in question, to contact a Dr O’Callaghan with the implication that some time elapsed or was wasted in an abortive effort to contact a doctor of that name. Secondly, it was contended that the evidence of Garda Kilroy to the effect that he had offered one of the two blood samples to the Appellant was untrue. It was put to Garda Kilroy that no such sample was offered to the Appellant or accepted by him.

6. When the application on behalf of the Appellant for a direction was refused it was argued on behalf of the Appellant that Dr Prendiville was a necessary and material witness. An adjournment was sought on the specific ground that a witness from the Medical Bureau of Road Safety would be material to establish that both blood samples had been sent to the Bureau and that such a witness and the wife of the Appellant (who opened the communication from the Bureau addressed to the Appellant) would be able to establish that both blood samples had been sent to the Bureau and thus confirm the Appellant’s account that no sample had been offered to or accepted by him.

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7. The trial Judge agreed to adjourn the trial for one week to the 20th March, 1997 but expressly ruled that evidence could not be given by Dr Prendiville.

8. On the 19th March, 1997 the Appellant sought and obtained leave to apply for Judicial Review in the nature of an Order of Prohibition against the Respondents proceeding further with the trial and obtained such leave on the following grounds:-

“ 1 That the first named respondent refused to call as a witness one Dr Prendiville who can give evidence directly material to issues in the trial as established in the evidence.

2 That in such circumstances the learned second-named respondent refused to require the first named respondent to call the said Dr Prendiville as a witness, and, in default of the first-named respondent in so doing, failed on his own motion to call the said Dr Prendiville as a witness.

3 That the learned second-named respondent ruled that he will not allow the Applicant to call the said Dr Prendiville as a witness in the said proceedings.”

9. In the Statement of Opposition dated the 8th day of July, 1997 the relief claimed by the Appellant was contested but, in relation to the ruling by the trial Judge that the Applicant was not entitled to call Dr Prendiville, an admission was made in the following terms:-

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“To the extent that the rulings of the second named Respondent indicated that the Applicant should not be permitted to call a particular witness during the course of his defence the first named Respondent herein does not seek to oppose the calling of such witness and that upon the matter coming once more before the second named Respondent herein it will be submitted that the Applicant may call such witness as he may wish.”

10. Clearly the trial before the Judge of the District Court on the 13th March, 1997 was vigorously contested. This may explain the error of the trial Judge; for error it undoubtedly was. The defence was entitled to call Dr Prendiville as a witness if they wished. On the hearing of the application before her, Mrs Justice McGuinness in her judgment rightly summarised the position in the following terms:-

“...[I]t is quite clear that the Respondent acted correctly in admitting that the District Judge erred in refusing to permit Dr Prendiville to be called as a witness for the defence. The Applicant, if he so wished, clearly had the right to call the doctor as a witness in an endeavour to substantiate the Applicant his own account of the events which transpired at the Garda Station.”

11. In the Order made by her on the 9th July, 1998 Mrs Justice McGuinness made a declaration affirming the right of the Appellant to call Dr Prendiville as a witness in the proceedings in the District Court but refused the Order of Prohibition. In relation to costs, the learned Judge

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awarded the Appellant the costs of the exparte proceedings together with fifty per cent of the costs of the inter parte proceedings when taxed and ascertained.

12. The Appellant has appealed to this Court from so much of the order as refused the application for prohibition and the Respondents have cross-appealed the award of any costs against them other than those incurred in relation to the ex parte application.

13. The Appellant was not satisfied to resume the trial before Judge MacGruairc on the basis that he, the Appellant, could call Dr Prendiville as a witness on behalf of the defence. It was contended on behalf of the Appellant that constitutional justice, and indeed the proper presentation of the Defendant’s case, required that Dr Prendiville should be called by the prosecution (or the trial Judge) as a witness on behalf of the prosecution so as to permit cross-examination of him by Counsel on behalf of the defence. This Court would like to make clear that it does not share Dr White’s easy assumption that an expert witness such as Dr Prendiville would not reveal the whole truth on the matters in issue in the case to the Court unless subjected to cross-examination.

14. As a matter of law it was contended, first, that by completing a prescribed form in accordance with and for the purposes of section 18 of the Road Traffic Act, 1994 (which was subsequently produced in evidence) Dr Prendiville had become a witness for the prosecution and it followed - subject to whatever adjournment might be necessary to procure his attendance - that he was liable to cross-examination by the solicitor acting on behalf of the Appellant. Alternatively, it was argued that Dr Prendiville had made an informal statement or report (the existence of which was disclosed in the affidavit of discovery made on behalf of the Director of Public Prosecutions for the purposes of the judicial review proceedings) and

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that there was an established rule of law or a requirement of justice that persons by whom statements of evidence had been made should be called or, at least, tendered as witnesses to facilitate cross-examination by the Defendant.

15. Whilst the production in Court of a form completed by a designated doctor in accordance with section 18 of the 1994 Act does make available to the Court information emanating from the designated doctor which discharges a particular burden of proof which would otherwise fall on the prosecution, this does not constitute the doctor being a witness in the proceedings. Quite the contrary. The purpose of the procedure authorised by section 18 in relation to the taking of blood samples and that authorised by section 19 of the same Act in relation to the determination of the concentration of alcohol in the specimen by the Bureau is to obviate the necessity for calling a witness whose attendance in Court would otherwise be required.

16. In my view the argument that Dr Prendiville was or should be deemed to have been a witness in the case and as such available for cross-examination because a form completed by him was put in evidence is not supported by precedent nor sound in principle.

In Joseph Francis Oliva [1965] 49 Cr App Rep 298 the Court of Criminal Appeal in England reviewed at some length the historical development of the duty imposed upon the prosecution to call or tender for cross-examination witnesses who gave evidence at the committal proceedings and whose names appeared on the back of the indictment. That Court held that the prosecution was bound to procure, in so far as possible, the attendance in Court of all such witnesses and certainly emphasised the obligation on the prosecution to exercise “the utmost candour and fairness” but did not conclude that there was not an obligation on the prosecution to call all such witnesses. In practice I think it would be recognised - and for the

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purposes of this appeal I would be prepared to accept - that the general and well-accepted practice in this country is for the prosecution to call or tender for cross-examination all witnesses whose names are included in the Book of Evidence. However, that is the high water mark of the practice to be adopted in proceedings heard on indictment. There can be no comparable procedure in relation to summary proceedings where no Book of Evidence is delivered or prepared. That is not to say that in summary procedures the rights of the accused are ignored or attenuated. Different procedures are adopted to ensure the attainment of justice. In DPP v. Doyle [1994] 1 ILRM 529 this Court had to consider the question raised by James Paul McDonald, a Judge of the District Court, namely:-

“Where an indictable charge is being disposed of by summary trial in a District Court, is there a general obligation on the prosecution to furnish, on request, the statements of the proposed witnesses for the prosecution?”

17. In delivering the judgment, with which the other members of the Court agreed, Denham J said (at page 53 8):-

“I am satisfied that where an indictable charge is being disposed of by way of summary trial in the District Court there is no general obligation on the prosecution to furnish, on request, the statements of the proposed witnesses for the prosecution. The trial is summary, it is not a halfway house between an indictable and a summary trial. Thus, the answer to the first question is in the negative. However, the appellant retains at all times his constitutional rights to fair procedures and if he requires, and it is in the interests of justice, that he be furnished with statements, or indeed other

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documents held by the prosecution, which will be in evidence in his trial, then he is so entitled. It is a matter for the trial judge to determine in each case.”

18. Mrs Justice Denham went on to explain the procedure which should be adopted in such cases in the following terms:-

“Without deciding on the procedure which at all times will be for the district judge to determine, the procedures adopted in this case would appear appropriate i.e., a letter requesting the statement (or whatever document is being requested) and if this is not furnished that the matter be listed before the district judge to determine the issue.”

19. In the absence of a direction by the Judge of the District Court there is no obligation on the prosecution to furnish to the defence, statements of evidence taken by the prosecution for the purposes of summary proceedings. Less still is the Director bound to call as a witnesses or tender for examination persons by whom such statements were made or even to procure the attendance in Court of such persons. Subject to the overriding consideration that the prosecution must not mislead the Court or suppress any material evidence which might be of assistance to the defence, it is a matter within the discretion of the Director as to what evidence he will call in support of the charge laid by him.

20. In addition, it is contended on behalf of the Appellant that the learned High Court Judge erred in ruling that the trial should continue before the secondly named Respondent. It was contended that the trial - insofar as it had proceeded - was so fundamentally flawed that the

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21. Court should not “countenance the concept of the judge having acted outside jurisdiction when returning to act within his jurisdiction “.

22. It has been accepted that the refusal of the trial Judge to permit the defence to call Dr Prendiville as a witness was an error. I have no doubt that if the proceedings had been concluded and the Appellant convicted without that error being corrected the conviction would have been quashed by an order of certiorari. In that context the error of the trial Judge would have been correctly described as “a fundamental flaw “. But that is not now the position. The error has been corrected. Indeed it may be that if the case had proceeded the mistaken ruling would have been corrected by the trial Judge. In my view the application for judicial review was premature in any event. The case has not been made, nor is there any evidence to support an implication of bias, subjective or objective, in the trial Judge which would render him unfit to complete the trial. So far from it, it would seem that the adjournment granted by the trial Judge was an indulgence to the Defendant to enable him to procure and present further evidence which had not been available on the date fixed for the hearing.

23. As to the cross-appeal, I can see the force in the argument made on behalf of the Director of Public Prosecutions that no costs should have been awarded to the Appellant in the High Court against the Director from the date on which he conceded in his statement of opposition that he was not standing over the decision of the District Court Judge refusing permission to the Appellant to call Dr Prendiville on a witness on behalf of the defence. Nevertheless it seems to me that the order of the High Court Judge, awarding the entire costs of the exparte application and fifty per cent of the subsequent proceedings in the High Court against the

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24. Director, was a proper exercise of the judicial discretion vested in her and accordingly should not be set aside. In the circumstances, I would dismiss both the appeal and the cross-appeal.

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