Supreme Court of Ireland Decisions

 
THE SUPREME COURT

Keane C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

443/03

BETWEEN/

DAVID WHELAN

Applicant/Appellant

and JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents/Respondents

[Judgments delivered by Geoghegan J. & Fennelly J.; Keane C.J., Denham J. & Hardiman J. agreed with both judgments]

JUDGMENT of Mr. Justice Geoghegan delivered the 1st day of March 2004

This is one of a number of appeals from the refusal of the High Court (Ó Caoimh J.) to grant judicial review arising in turn out of the refusal by the first above-named respondent Judge Kirby of an application for prior inspection of an intoximeter situate at Dun Laoghaire Garda Station the printout from which was to be used in connection with prosecutions of each of the appellants for alleged offences under s. 49(4) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994. Essentially the main issues in each of the appeals are identical and in so far as there are slight differences I will return to them in due course. I am intending that this judgment should be taken as my judgment in each of the appeals. I have thought it appropriate to select the David Whelan case for the formal title of the judgment as this brings the appeal into line with the practice followed by Ó Caoimh J. in the High Court.

The other appeals are brought by Tara Henry, Dympna Stack, Jason Moffatt, Ciaran Fitzpatrick, Larry Clarke and Eoin Mulhall respectively. The respondents in each appeal are identical.

In his statement grounding the application for judicial review the appellant, David Whelan, sought as his primary relief:

"An order for judicial review in the form of an order of certiorari quashing the order made by the first-named respondent herein on the 1^st of November 2001, whereby he refused to grant an order in favour of the applicant directing/permitting/authorising inspection, including examination, facilities of the Intoximeter EC/IR situate or located at Dun Laoghaire Garda Station in the county of Dublin, which said Intoximeter had been used to obtain a sample of breath from the applicant in proceedings brought against the applicant by the second-named respondent for an alleged offence under section 49(4) and 6(a) of the Road Traffic Act, 1961, as inserted by section 10 of the Road Traffic Act, 1994."

The relevant grounds in relation to that relief sought were set out as follows:

"(i) The first-named respondent acted in excess of jurisdiction and contrary to the principles of natural and constitutional justice in refusing to accede to an application brought on behalf of the applicant on the 1^st of November 2001 for an order directing/permitting/authorising inspection, including examination, facilities of the Intoximeter EC/IR, in circumstances where the said inspection was required by the applicant in order to properly prepare his defence to the criminal proceedings brought against him.

(ii) The first-named respondent acted in excess of jurisdiction and contrary to the principles of natural and constitutional justice in refusing to properly entertain applications brought on behalf of the applicant on the 1^st and 5^th of November, 2001directing/permitting/authorising inspection facilities of the Intoximeter EC/IR situate at Dun Laoghaire Garda Station, when such inspection was required by the applicant for the purposes of properly defending the criminal proceedings brought against him.

(iii) The first-named respondent acted in excess of jurisdiction and contrary to the principles of natural and constitutional justice in refusing to adjourn the said criminal proceedings on the 5^th of November 2001 in circumstances where such inspection facilities had not been made available to the applicant as aforesaid.

(iv) The first-named respondent acted in excess of jurisdiction and contrary to the principles of natural and constitutional justice in failing to have due regard to the entirety of the correspondence entered into by the solicitor for the applicant with the second-named respondent's servants or agents and/or the Medical Bureau of Road Safety for the purposes of securing such inspection facilities aforesaid.

(v) ……

(vi) In refusing to grant such inspection facilities to the applicant and/or to adjourn the said proceedings so that such inspection facilities could take place and/or proceeding with the hearing of the criminal proceedings in circumstances when such inspection facilities had not been made available to the applicant, the applicant was deprived of his right to a fair trial by the respondents."

For reasons which will become apparent in this judgment, I am satisfied that in none of the cases did the learned District Court judge properly entertain the application brought before him relating to the inspection facilities. Having formed that view, I do not consider it appropriate to express any opinion as to whether if the applications had been properly entertained any particular order or direction ought to have been made.

Having formed that view there is consequentially a slight problem which arises in relation to the documentation. Although what happened in court appears to have been identical in each case, for some curious reason the second of the above listed grounds of relief in the David Whelan case, that is to say, the refusal properly to entertain the applications is expressly included in the statements of grounds in only three of the cases namely those of Dympna Stack, Eoin Mulhall and David Whelan. The first of the above mentioned grounds i.e. the refusal to accede to the application is included in the grounding statements in each of the cases. Having given careful thought to the matter, I have come to the conclusion that the omission of the express ground of a failure properly to entertain the application in some of the cases is not in any way fatal to the applications of those applicants. A ground for relief always has to be considered in conjunction with the surrounding facts and context in which it arose and, therefore, in my view the first ground i.e. the refusal to accede to the application is wide enough to embrace the concept of failure to entertain it. Therefore, if in all the circumstances the failure to entertain the applications would be sufficient grounds for certiorari, I am satisfied that each of the appellants would be entitled to that relief having regard to the first ground set out in each of their grounding statements. Technically and for a reason which I will explain the ground on which Tara Henry is entitled to succeed is differently worded.

I intend now to deal with the circumstances leading up to the applications to the District Court judge and what happened on the making of those applications. It is established by affidavit that the appellant, David Whelan, received a summons returnable for the 6^th of April, 2001. On that date the State sought and obtained an adjournment to the 13^th of September, 2001. The State was ready to proceed on that date but Mr. Ronald Lynam, solicitor for the appellant informed the court that he was seeking an inspection of the apparatus used in the Garda Station by a suitably qualified expert and that this expert had been sourced. The case was then adjourned to the 23^rd of October, 2001 for mention only. Several other similar cases came to be adjourned to that date including all but one of the remaining cases the subject of appeal to this court. When the cases were called Mr. Lynam informed the judge that the question of inspection of the apparatus was still being pursued and that the matter had progressed to the stage that there was now a firm of solicitors representing the Medical Bureau of Road Safety. The judge indicated that he was not prepared to wait any longer, that he had afforded ample opportunity for the inspection to take place and that he intended to proceed to hear the various cases. Mr. Lynam then informed Judge Kirby that it had taken "an extraordinary length of time" for the State to adequately address the inspection requests and that he had no authority to enter the Garda Station with a suitably qualified expert and proceed to inspect the apparatus without all necessary arrangements having been put in place. He invited the judge to read all of the correspondence which he had entered into in respect of these cases but the judge did not take up the offer. Instead, the judge fixed hearings for the 5^th of November, 2001. Mr. Lynam explains in his affidavit that after the date had been fixed, as a matter of courtesy he handed in to the learned District Court judge two letters one from Hayes and Sons, solicitors for the Medical Bureau, dated the 28^th of September, 2001 and a copy letter from his firm to Hayes and Sons. These letters were returned to Mr. Lynam on the following day with no comment. The history of that correspondence is as follows:

On the 3^rd of April, 2001 Mr. Lynam wrote to the Superintendent, Dun Laoghaire Garda Station requesting certain documentation and also an examination of the intoximeter by a suitably qualified expert. The letter read as follows:

"Re Garda Declan Kelly v. David Whelan

Dear Superintendent the above section 49 prosecution is listed for Dun Laoghaire District Court on the 6^th inst. at 11.00 a.m.

We understand that the operator of the intoximeter is supplied with an operator's manual which contains information which has a direct bearing upon the workings of the apparatus. This information is directly relevant to this prosecution and we would be obliged if you would furnish us with a full and complete copy of this documentation by return to enable us to adequately take our client's instructions. In addition our client has instructed us to request an examination of the intoximeter at Dun Laoghaire Garda Station by a suitably qualified expert. To enable this to take place our client's expert will require the following information to be furnished immediately:-

(a) Full details of when the intoximeter was calibrated between the date of the intended test and the date of our client's original test which was the 13^th of May 2000.

(b) Full details of any parts, components or software of the device which have been altered, serviced or replaced between the relevant dates.

Please let us have full disclosure of this information at the earliest possible moment so that we may be in a position to advise you of the access and testing requirements of our client's experts.

We await hearing from you as soon as possible.

Yours sincerely"

That elicited a formal holding letter in reply stating that the request had been sent to the Chief State Solicitor for advice. Having heard nothing more Mr. Lynam sent a letter of reminder to the Superintendent on the 10^th of April, 2001. A further holding letter was written in reply but not until the 13^th of June, 2001. Again it was merely informing Mr. Lynam that the request had been forwarded to the Chief State Solicitor for his decision. The next letter was dated the 2^nd of August, 2001 and was sent to the appellant's solicitors by Inspector McCahey of the Garda Síochána in Dun Laoghaire. That letter related to four prosecutions two of which were of appellants before this court namely, David Whelan and Jason Moffatt. The letter was in the following terms:

"Dear Sirs

The Chief State Solicitor has responded to queries concerning the supply of the Garda Training Manuals to the defence in intoximeter prosecutions.

He states that the DPP now directs that the Garda Training Manuals dealing with training and supervision be supplied to the defence. He further directs the inspection facilities be extended also subject to there being an expert from the Medical Bureau present at the same time.

It is further stated that the Medical Bureau will

(1) provide expert evidence for either side and

(2) that the machines handbooks are the subject of copyright and can be made available by the manufacturer if the defence write to them.

I have nominated Sergeant Tim Walsh of this station to supply the Training Manuals and you may liaise with him if inspections are required.

Yours faithfully"

It is clear from that letter that the State authorities had no objection in principle to the proposed inspection.

By a letter of the 8^th of August, 2001 Mr. Lynam in relation to the David Whelan case wrote to Sergeant Timothy Walsh of Dun Laoghaire Garda Station requesting him to address the issues raised in his letter of the 3^rd of April, 2001 addressed to the Superintendent and cited above and he further pointed out that he had already requested certain specific information which would be necessary to furnish to any qualified expert intended to carry out the inspection. The sergeant replied to that letter and included in it the following:

"Requests for documentation and information relating to approval, supply and testing of EBT instruments should be directed in writing to the Director of the Medical Bureau of Road Safety, Department of Forensic Medicine, Earlsfort Terrace, Dublin 2.

Similarly, request for information of a scientific nature and request for access to the instruments should be directed in writing to the Director."

It would appear that in the context of this same solicitor acting for a number of defendants who were in exactly the same position and standing adjourned for trial in the same District Court before the same District Court judge separate identical letters were not necessarily written in each case. The letter from the gardaí of the 2^nd of August, 2001 had as I have indicated related to four of these clients of Mr. Lynam, David Whelan and Jason Moffatt being two of them. The next relevant letter dated 3^rd of August, 2001 is technically headed "Garda Michael Gregg v. Jason Moffatt" but has in practice been treated by Mr. Lynam as part of the correspondence in the David Whelan case. In all the circumstances this does not seem unreasonable. Nor have any technical objections in relation to any of this been made. The letter was addressed to the Director of the Medical Bureau of Road Safety and it enclosed a copy of a letter dated the 30^th of May, 2001 written in the Moffatt case to the Chief State Solicitor and in so far as it dealt with an inspection of the intoximeter was in identical terms to the letter of the 3^rd of April, 2001 in the David Whelan case cited above. Enclosed also was a copy letter written to the Superintendent in Dun Laoghaire pointing out that the issues of the request had not been addressed and requesting attendance to them as a matter of urgency. Also enclosed was a letter from Inspector Clarke of the Dun Laoghaire Garda Station dated the 25^th of July, 2001 stating that the Medical Bureau had sole responsibility for the upkeep etc. of the intoximeter and that they were a totally independent body from An Garda Síochána. The inspector went on to state that the gardaí did not have authority to allow any person to inspect the apparatus as it remained the property of the Medical Bureau. He suggested that Mr. Lynam would redirect his request to have an independent expert examine the intoximeter to the Director of the Medical Bureau.

That letter elicited a reply from the Medical Bureau dated 9^th of August, 2001. It read as follows:

"Dear Mr. Lynam

… I acknowledge receipt of your letter dated 3^rd of August 2001 in which you have forwarded copies of letters to the Chief State Solicitor, Superintendent of Dun Laoghaire Garda Station and letter from the Superintendent's office.

I refer you to correspondence dated 18^th of July, 2001 from the Director providing all dates of testing, an additional test was carried out on the 19/04/01.

In relation to your request that the expert retained by your client be granted access to the Intoximeter EC/IR in Dun Laoghaire Garda Station, I would be obliged if your expert would clarify exactly what they require and what they would propose to do so that your requirements can be addressed as helpfully as possible and in accordance with law.

The Bureau as the independent statutory body with duties and functions set out under the Road Traffic Acts and with particular responsibility for the forensic integrity of the instrument, would be very pleased to provide independent scientific witness if summoned in the usual way by either the

prosecution or defence in relation to any matter properly arising in accordance with law before the court.

Yours sincerely

CP Leavy, Chief Analyst"

That letter was replied to by letter of the 7^th September, 2001 (again technically headed DPP v. Jason Moffatt). The letter read as follows:

"Dear Sir

We acknowledge receipt of your letter of the 9^th ult. and in particular to (sic) paragraph 3 thereof concerning an examination of the intoximeter by a suitably qualified expert. We are informed by our expert that he will need 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 test 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 clients' original tests.

(d) Full details of any parts, components or software of the device that has been altered, serviced or replaced between the two relevant dates.

Our expert confirms that he will not be 'tampering' with the intoximeter EC/IR. He will purely be running standard evidential procedures on the device.

For your information the date of the test in this case was the 9^th of November 2000.

We await hearing from you as soon as possible.

Yours sincerely"

At this stage the Medical Bureau of Road Safety brought in their solicitors, Hayes and Sons, and they wrote a letter to the appellant's solicitors dated 28^th of September 2001. It is not necessary to quote it in full but can be summarised as follows. It began by stating that they had considered with their client, Mr. Lynam's request for the examination of the intoximeter and that it appeared to them that a court order would be required in respect of the request. The letter went on to point out that under the Act "there is a presumption in favour of the Statutory Certificate printed by the Evidential Breath Testing Instrument, in this case the Intoximeter." The letter went on to express concern that the Medical Bureau had statutory duties in relation to the maintenance and forensic integrity of the instruments and that the Bureau would require that any such test as was sought would have to be supervised by a member of its staff and possibly also by a representative of the manufacturers of the instrument. Hayes and Sons again reiterated that while their client did not wish to create unreasonable difficulties a court order would appear to be necessary and that for this purpose a proper application should be made to the court with the Bureau as a notice party. They added that the court order would have to deal not only with the question of the test but also questions of costs which would be incurred by the Bureau in supervision and retesting etc.

Mr. Lynam replied by a letter of the 9^th of October 2001 in which he set out the legal position as he saw it. That letter read as follows:

"Dear Sirs

We acknowledge receipt of your letter of the 28^th ult. and note what you say.

Having regard to the content of your letter under reply it would appear that we are, at least agreed upon the proposition that there are two parties to this prosecution, with the State on the one hand and the accused on the other.

The State, in bringing this prosecution relies, of necessity, on a number of the agencies of the State including the Medical Bureau of Road Safety which have certain statutory obligations concerning the Testing Instrument. The obligation rests upon the State to address the issue of access to the instrument itself as the party with direct responsibility for the prosecution of the offence.

The accused's request to have a suitably qualified expert examine the apparatus and carry out certain scientific comparison tests should be a matter of agreement between the parties unless there is a good substantial and legally justifiable reason for refusing. If such a reason does exist then same should be disclosed immediately. In the event that one does not exist then an agreement should, quite easily, be reached between the parties in the proceedings concerning such issues as access, persons in attendance and reasonable costs.

We look forward to hearing from you or alternatively, from the solicitors representing the State in this prosecution namely the Chief State Solicitor's Office.

Yours faithfully"

By letter of the 12^th of October, 2001 Hayes and Sons made it clear that they could add nothing to their already stated position and they believed that a court order would be appropriate. Technically that letter was written in the Dympna Stack case but clearly Mr. Lynam reasonably treated it as a statement of final position by the Bureau. After consulting with counsel he issued a notice of application to the District Court in relation to the appellant, David Whelan's proceedings which same application was brought in the Larry Clarke, Ciaran Fitzpatrick, Jason Moffatt, Eoin Mulhall and Dympna Stack cases also. The application was made on notice to the Chief State Solicitor, Garda Declan Kelly and Messrs Hayes and Sons, Solicitors for the Medical Bureau of Road Safety. In his grounding affidavit, Mr. Lynam describes in some detail what happened when the matter came to court. It is appropriate to set out his own words in this regards.

"I attempted to open the application for the first-named respondent. I informed the first-named respondent that the application was being made on notice to the various parties as it had been specifically requested by Hayes and Sons, in particular as a result of a letter from Hayes and Sons dated the 3^rd of October 2001.

The first-named respondent replied by stating:

'I cannot get involved in this. The law is the law. It is going on far too long'."

I informed the court that I was applying for a 'Gary Doyle' type order and that I believed that the application had merit. The first-named respondent replied:

'I am sorry, the application is refused'.

The hearing of the substantive proceedings against the appellant, David Whelan, took place on the 5^th of November, 2001. Mr. Lynam explains in his affidavit that at the outset he renewed his application on behalf of the appellant for the court to allow a suitably qualified expert on behalf of the applicant to carry out an inspection and examination of the intoximeter apparatus situate at Dun Laoghaire Garda Station or alternatively an order permitting such an inspection or examination to take place. He informed the District Court judge that the appellant had a fundamental right to defend himself against the allegation before the court and he believed that his client was entitled to such an opportunity. This further application was refused by the learned District Court judge, the first-named respondent and the case proceeded to hearing and conviction. Similar applications and similar refusals were made at the other hearings. Formal orders of refusal were drawn up and have been exhibited in each of the cases except Tara Henry.

In my view, the facts as above recited clearly demonstrate that the first-named respondent, the District Court judge refused to entertain the application regarding the inspection of the intoximeter. I can see no basis for suggesting that he entertained the application but then refused it though in point of form the orders were refusals. The question of whether such a refusal even if wrong was an error within jurisdiction does not arise. I am quite satisfied that the District Court judge simply refused to entertain the application. It is true that the judge does refer to the matter going on "far too long" but he was well aware at that stage that there was active correspondence and communications with the prosecuting authorities and the Medical Bureau. Yet he appeared unwilling to consider that correspondence. It must be remembered that this was at a stage when essentially there was agreement in principle that an inspection could be carried out provided reasonable terms and arrangements were fixed by agreement and that (a stipulation required by the Medical Bureau) the court actually made some kind of an order authorising the inspection. The remark "I cannot get involved in this. The law is the law" would seem to represent a view taken by the District Court judge that he could not get involved in the application at all presumably because of the act providing for intoximeters and the statutory presumptions arising from the printouts therefrom.

I am satisfied that the appellant had an arguable case that an inspection was reasonable given the relative novelty of the machine in particular and the fact that for all practical purposes he could be convicted on the say so of a printout. What the first-named respondent may have overlooked is that that printout gives rise only to a rebuttable presumption.

Section 17(2) of the Road Traffic Act, 1994 provides as follows:

"(2) Where the apparatus referred to in section 13(1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 49(4) or 50(4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with two identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus".

Section 21(1) of the 1994 Act then provides as follows:

"(1) 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, 1961-1994, 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 section 17(2) of such statement."

The fact that the certificate is rebuttable has significance having regard to the decision of this court in Maher v. Attorney General [1973] IR 140. Originally in relation to prosecutions arising out of specimens of blood or urine under the Road Traffic Act, 1968 the equivalent certificate gave rise to an irrebuttable presumption. That provision was held to be unconstitutional by this court in Maher's case. The court held that the administration of justice in a criminal trial was confined by the Constitution to the courts and judges constituted and appointed in accordance with the provisions thereof and therefore that the essential ingredients of the offence with which an accused was charged was necessarily reserved to such courts and judges. Once the certificate was conclusive the judicial power of the District justice was infringed and this could not be valid having regard to the Constitution. It can be argued with some validity that apart from cases with very unusual facts the presumptions arising from the certificates in the intoximeter cases are for all practical purposes irrebuttable notwithstanding the statutory provision to the contrary if there are no circumstances where an accused can be permitted through an independent expert of his own to investigate the reliability of the apparatus or at the very least if it is not generally known in what circumstances (if any) such apparatus can be unreliable.

In a case such as these where in practice there was no objection to such an inspection on agreed terms provided that the court authorised it the argument is that much stronger. The court at the very least should have entertained and considered the application in the interests of ensuring that the defendants were not unfairly handicapped in their defence. I am reluctant to call such an application a "Gary Doyle" application though undoubtedly there are analogous features. A court of summary jurisdiction is a creature of statute and at common law can only make orders permitted by statute. But that common law principle is subject in this jurisdiction to the overriding requirement of fair procedures under the Constitution. Counsel for the Director of Public Prosecutions, Mr. McDonagh S.C., seemed to suggest that even in relation to "Gary Doyle" applications the court cannot and does not make an order as such. It simply gives some kind of informal directions. I would respectfully disagree with that. There is jurisdiction in the District Court to make any order that would be necessary for the fulfilment of the constitutional obligation of a fair trial and fair procedures. Formerly, in summary jurisdiction there was no right given to a defendant to have furnished to him statements of evidence taken. Still less was there any right to have notice of intended evidence which might never have been committed to writing. There had been cases challenging that proposition prior to Gary Doyle (DPP v. Doyle [1994] 1 ILRM 529) with some conflicting results as I pointed out in my judgment in the High Court in Gary Doyle. The Supreme Court in the judgment of Denham J. confirmed that there was no absolute right to obtain statements taken on summaries of intended evidence but the District Court could decide that they be produced if it was necessary in the interests of a fair trial. I think that the inspection applications sought in these cases were of a different nature from a "Gary Doyle" application but they were based on the exact same constitutional principle and I see no reason why the District Court would not have jurisdiction to rule on whether and in what circumstances the intoximeter could be inspected. Such orders could only be made against the DPP but if as a consequence of non cooperation by the Medical Bureau or for any other reason the District Court order could not be complied with, it would be open to the District Court to refuse to proceed with the trial. However, it seems probable that the Bureau is concerned only with protecting its apparatus and would be likely to abide by any informal recommendation by the court as suggested in the written submission of the applicant.

The other line of authority which has been relied on in this case is the line of cases relating to preservation of evidence such as Braddish v. DPP [2001] 3 IR 122, McGrath v. DPP and Bowes v. DPP (both in a

common unreported judgment of this court - Hardiman J. 6^th February 2003). Also cited was McKeown v. The Judges of the Dublin Circuit Court, a decision of this court contained in a judgment of McCracken J. (unreported) delivered the 9^th of April, 2003. These cases are essentially dealing with the preservation of evidence available or which obviously should be available. There was no preservation of evidence problem in the cases the subject of these appeals. But as in the case of Gary Doyle these authorities are based on the constitutional requirement of a fair trial.

The preservation of evidence cases are also relevant to one of the main arguments relied on by the DPP in resisting the applications for judicial review. It is clear from those cases that a court will only be concerned with the preservation of evidence if such evidence could possibly assist a defendant in his or her defence. Normally, therefore, a basis would have to be laid before a relevant complaint of non-preservation or refusal of permission to inspect was made. Mr. McDonagh argues that all the preliminary correspondence and discussions whether with the gardaí, the DPP or the Medical Bureau are irrelevant because the District Court judge would have been precluded at any rate from making any order of the kind sought as there was not going to be any evidence put forward as to what might have been determined by an inspection which would be helpful to the defence. In the second last page of their written submissions the appellants have answered this suggestion as follows:

"The learned trial judge seems to suggest that there is an onus on the applicants to inform the court what the results of an inspection or examination of the intoximeter might have been. With respect, it would be impossible for an applicant, or a suitably qualified expert, to predict what an examination of a machine might reveal in any given case. The fact that the inspection of a machine is not a contemporaneous one would not, presumably affect its result if, for example, a design fault were noted. There may be many other instances where a liability of the machine might be called into question, notwithstanding that the examination thereof is not contemporaneous."

I find myself in agreement with that statement. It would seem to me that from the defence point of view the request for the examination might be regarded as reasonable (which does not necessarily mean that it would have to be acceded to) and the reasons for the request would be self-evident.

It would be wrong for me to speculate as to what particular order the District Court judge might or ought to have made if he had properly entertained the applications and it would be equally wrong to make any assumption that if the District Court had permitted the inspection it would not have yielded an arguable defence. In refusing to entertain Mr. Lynam's application the judge was cutting off the appellants of any possibility of rebutting the statutory presumption. Furthermore, he was doing so in circumstances where there was in principle no objection to such inspection by the prosecution. The unfairness of the procedure adopted by the first-named respondent is in my view, fatal to the conviction of the appellant, David Whelan and that conviction should be quashed on certiorari on the grounds that the application was unfairly refused in the context that it was never entertained. Similar orders should be made in the other cases for the same reasons.

Unless there are exceptional circumstances indicating abuse of the process of the court constitutional fairness of procedure requires that a pre-hearing application to a judge of the District Court for an order requiring the production of documents and/or a request for inspection of equipment permitted to be used by statute for the purpose of producing a statement of facts deemed to be true unless rebutted and essential to the prosecution case ought to be entertained. It will then be within the discretion of the judge as to whether he or she accedes to the request or not. Nothing that I have said should be taken as suggesting that in any or every circumstance an inspection of an intoximeter should be permitted. But the learned District Court judge in this case was wrong not to have entertained the application and properly considered it. It is important to emphasize that these applications to the court to enable one independent inspection of the intoximeter were made in the context that the intoximeter was at the material time a novelty and was a machine which effectively could by its own printout convict an accused without there being in reality any opportunity to rebut notwithstanding that under the Act the presumption is rebuttable.

Although the Tara Henry case was not included in the application to the court already referred to the position in relation to that case is not different in any material respect. In it Mr. Lynam has sworn an affidavit in which he explains that he wrote a number of letters to the gardaí to which he received no reply. These were all with a view to an inspection of the intoximeter apparatus. He had still received no reply as of the date of hearing which was the 14^th November, 2001. Mr. Lynam, on that day, informed the first-named respondent that he was applying to the court for an order permitting or authorising an inspection and examination of the intoximeter in that case. He informed the District Court judge that he had corresponded with Garda O'Brien in that regard and he reminded the judge that the issue had been aired in previous cases without success. The learned District Court judge interrupted and indicated that Mr. Lynam should get the sergeant to arrange an inspection. Mr. Lynam then explained to the judge "with respect" that this observation did not address the issue and that a court order would be required if the Medical Bureau of Road Safety was to be satisfied having regard to the correspondence in the other cases. At that point the judge indicated that he was proceeding with the case. In his affidavit Mr. Lynam goes on to deal with the correspondence he had with the Medical Bureau etc. in the other cases the subject matter of this appeal.

There are two other special aspects of the Tara Henry case which I should mention. The first is that in that particular case the court has sight of the order of the High Court (McKechnie J.) giving leave for the judicial review and he considerably narrowed down both the reliefs and grounds contained in the statement of grounds which were to be permitted. I think it unnecessary to go into this because I believe that McKechnie J. was simply attempting to fix appropriate reliefs and appropriate grounds to deal with the real issue in the case. It was legitimate and, indeed, it was in fact the case that in reality the same relief and the same ground was argued before Ó Caoimh J. in the Tara Henry case as in any other.

The other special point relating to that case is that a time defence was raised in the statement of opposition. However, I am satisfied that that objection was adequately answered in the supplemental affidavit of Mr. Lynam. A delay arose in the bespeaking of the relevant order.

A further ground of certiorari arises in four of the cases that is to say, Dympna Stack, Ciaran Fitzpatrick, Eoin Mulhall and David Whelan. The certified copies of the orders made in the District Court bespoken in each case by Mr. Lynam contained an order imposing a penalty but no order indicating conviction. For some reason however which required explanation, when the Chief State Solicitor's Office bespoke certified copies of the respective orders certified copies produced to them contained the words "be convicted of the said offence and" inserted in pen after the words "it was adjudged that the said defendant" in the printed form of order. In a case where clearly a serious conflict of fact on the official record itself arose and especially in the context that the appellant's certified copies were produced first, it is surprising that the DPP did not see fit to explain the discrepancy by affidavit. Instead of that an affidavit exhibiting a certified copy order in different terms was blandly presented to the court without any explanation. There was some vague suggestion at the hearing of the appeal that the "slip rule" might have been availed of but that was pure speculation and the procedures for implementing the slip rule were not properly considered. Without more information the natural inference to draw is that a handwritten correction was made when the error was noticed and that that was then treated as the original recorded order for the purposes of future certified copies. On this aspect of the case I am in complete agreement with the judgment of Fennelly J. and particularly with the significance he attaches to section 14 of the Courts Act, 1971. I also agree with the order he proposes.

I would allow the appeals in each case on the grounds of procedural unfairness and in the said four named cases on the grounds also of error on the face of the record and I would substitute for the order of the High Court an order of certiorari in each of the seven cases.

THE SUPREME COURT

Keane C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

443/03

BETWEEN

DAVID WHELAN

Applicant/Appellant

and JUDGE BRIAN KIRBY AND THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondents/Respondents

JUDGMENT delivered on the 1st day of March 2004 by FENNELLY J.

I fully agree with the judgment of Geoghegan J insofar as he deals with the refusal of the first-named respondent to consider the application of the applicants for facilities to inspect the intoximeter. I deal separately only with the issue concerning the form of the order of the District Court.

As Geoghegan J points out, this point arises only in the cases of Dympna Stack, Ciaran Fitzpatrick, Eoin Mulhall and David Whelan. In each of those cases, one of the grounds upon which leave to apply for Judicial Review was granted was:

"The Order of the First Named Respondent made on 10^th December 2001 is bad in law in that it fails to show jurisdiction on its face."

In his grounding affidavit in each of these cases, Mr Lynam exhibited a certified copy of the order and stated: "As appears therefrom, same does not record that the Applicant was convicted of any offence, but purports to impose the aforesaid penalties."

The exhibited order in each case records the hearing, on a specified date, of the complaint made pursuant to the relevant statutory provisions and proceeds to record that "it was adjudged that the said defendant shall pay for penalty a fine…," as well as the consequential disqualification from driving. It does not record any conviction. It appears on its face to be signed by the first-named respondent and to be certified by the Clerk of the District Court on a date different from the date of the hearing. The certificate states that "the above is a true copy of the original which is held in my custody."

A responding affidavit sworn, in each of the four cases, by a Principal Legal Executive in the Office of the Prosecution Solicitor exhibits also a document described as a copy of the order. In each case, it is stated that this document was received on 12^th November 2002, some ten months after the date of the original copy orders. This document differs from that exhibited on behalf of the applicant in that, after the words, "it was adjudged that the said defendant," there appears a manuscript interpolation of the words: "be convicted of the said offence." This affidavit does not otherwise address or even refer to the complaint of the applicant regarding the omission of any reference to the conviction; nor does it explain how or when the words in manuscript were interpolated.

The Statement of Opposition in each case denies that the order "fails to show jurisdiction on its face."

The applicants submit that the orders are clearly bad on their face, since they do not record that they were convicted of any offence.

The learned High Court judge acknowledged that there had been an error in drawing up the orders. He said that he was satisfied that the "fresh certified copy Orders in question represent the reality of what occurred in the District Court and …[that this had] not been disputed in these proceedings."

The applicants rely principally on section 14 of the Courts Act, 1971, which provides:

"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 rules of court) relating to a decision of a justice of the District Court in any case of summary jurisdiction".

They emphasise the absence of any explanation for the discrepancy between the forms of certified order and submit that the order which is the first in time is the one to be relied upon.

No argument was addressed to the court suggesting that the failure to record the fact of conviction would be otherwise than fatal to the validity of the order. That is not, therefore, an issue for decision. Counsel for the second-named respondent argued strenuously, however, that the burden of proof lies on the applicant to establish error on the face of the record. Where, as here, there are two purported certified orders, it thus falls, it is said, to the applicant to establish which is the authentic one.

It can be seen, therefore, that the issue is a fine one. I am satisfied that section 14 of the 1971 Act is the proper starting point for this analysis. The solicitor for the applicants acted properly in bespeaking a copy of the order to be exhibited in the affidavit grounding the application for leave to apply for Judicial Review. He was furnished with certified copies which recorded no conviction, but nonetheless proceeded to set out penalties which had been imposed. Having regard to section 14, I do not think the learned High Court judge was correct to conclude that the fresh certified orders represented the reality of what occurred. In the literal sense that is, no doubt, true. However, section 13 of the Courts Act, 1972 declares the District Court to be a court of record and section 14 requires the court to have regard to the record.

Here there are two candidates for the office of record. The second-named respondent has simply produced a second certified copy order without any attempt to explain the discrepancy.

I am satisfied that, in the circumstances of this case, the applicants had discharged, to the required extent, the burden of proving the record of the court. The burden of proof had shifted to the second-named respondent. It might well have been possible to discharge that burden by proof that there had been some error in transcription of the original order, but that the corrected copy truly replicates the original. Both are, after all, in principle copies of an original, which exists in electronic form. The insertion of the crucial corrective statement by a manuscript interpolation clearly calls for some explanation. It would clearly be reprehensible to insert such an interpolation for the purpose of correcting an error in an order already made. No evidence has been produced that the new copy was established by virtue of the slip rule in the District Court Rules.

Some assistance may be obtained from the judgments of this Court in the more remarkable case of Brennan v Windle [2003] 2 ILRM 520. The applicant in that case came to be incarcerated in Mountjoy prison on foot of District Court warrants. It was there that he learned, for the first time, of his conviction by the District Court of an offence of driving without insurance. His evidence that the summons had never been served upon him was not contested. Hardiman J discussed the matter in the following terms:

"This summons was issued at the behest of the third-named respondent as prosecutor. The Garda who swore the principal affidavit supporting the notice of opposition was present in court throughout the proceedings which led to the applicant being sentenced. Notwithstanding this, the respondents have elected to say nothing whatever about the question of proof of service even though they do not deny the applicant's averments that he was unaware of the hearing at which he was sentenced. They rely on a submission as to the onus of proof. They say the applicant has not gone far enough, and that he is required to prove positively that there was not proper evidence of service before the learned District Judge.

I must say that I regard this submission with distaste. This applicant has already spent three weeks in custody on foot of a sentence imposed after a hearing of which, it is not disputed, he had no actual notice. That fact, in my view, establishes a prima facie case that the hearing before the learned District Judge was fatally flawed by reason of a failure to observe one of the two basic rules of natural justice, audi altrem partem. In answer to this the respondents, whose representative must know precisely what occurred at the District Court hearing, elect to maintain a studied silence and to say that it is for the applicant, who does not know what happened because he was not present, to prove that there was not sufficient evidence of service before the learned District Judge.

I would reject this submission with as much emphasis as I can. In my view the applicant has done quite sufficient to shift the onus of proof on the question of whether there was sufficient evidence of service of the summonses before the learned District Judge".

In my view, the applicants, in the present cases, had satisfied the prima facie burden of showing that there was an error on the face of the record, by producing a record of the District Court order to which section 14 of the 1971 Act applies. The second-named respondent has failed to produce any evidence to displace that record. Accordingly, if it were necessary, I would grant an order of certiorari on this additional ground in the four cases where this issue arises.