Judgment of Mr. Justice William M. McKechnie, delivered the 31st day of July, 2014.
Introduction:
1. This is an appeal from the judgment of O’Keeffe J. delivered on the 27th April, 2009, in which the learned judge dismissed an application for an order of certiorari quashing a conviction recorded against the applicant on the 7th December, 2007. That conviction related to the driving by him of a mechanically propelled vehicle in a public place whilst under the influence of an intoxicant such that, he was incapable of having proper control of same, contrary to s. 49, sub-ss. (1), and (6)(a) of the Road Traffic Act 1961 (“the 1961 Act”) as inserted by s. 10 of the Road Traffic Act 1994 as subsequently amended to the relevant date (“the 1994 Act”). The trial judge imposed a custodial sentence of six months imprisonment, disqualified him from driving for a period of two years and endorsed his licence to reflect these events.
2. The applicant challenged his conviction by way of an application for judicial review, with Peart J. granting leave, on the grounds contained in the statement grounding the application, on the 3rd March, 2008. The applicant also lodged a notice of appeal but did not pursue this alternative remedy. The substantive application came on for hearing before O’Keeffe J. who, in a written judgment delivered on the date above mentioned, refused all reliefs. From that decision and resulting order, the applicant served a notice of appeal to this Court on the 14th day of July, 2009. This is my judgment on the issues raised on that appeal.
Background:
3. On the 30th October, 2006, the applicant was stopped at a check point by one Garda Duane, of Tuam Garda Station and a short time afterwards was arrested on suspicion of having committed an offence(s) under s. 49(1), (2) or (3) of the 1961 Act as amended. At the Garda Station to which he was conveyed, he opted to provide a blood specimen to the designated doctor, who was called to the station for that purpose. That sample was duly divided into two parts with each part being placed into a separate container, which was then sealed, with one being given to the applicant. The other was posted to the Medical Bureau of Road Safety (“the Bureau”) for analysis on the day following this arrest. No issue arises regarding the arrest or the various steps taken in the police station, consequent thereon.
4. By certificate duly completed and in the prescribed form, dated the 13th day of November, 2006, and received by the gardaí on the 16th November, 2006 (“the first certificate” or “the alcohol certificate”), the Bureau duly certified a “nil” concentration of alcohol in the analysed sample. As required, a copy of this certificate was forwarded to the applicant. On receipt thereof, the applicant took the view that in light of the negative finding, he was free from any threat of prosecution, arising out of his arrest and accordingly disposed of that part of the sample which he had retained in his possession until then. However, much to his surprise, the Bureau issued a further certificate, received by the gardaí on the 10th February, 2007, which confirmed the presence of a “cocaine class” substance in the sample sent to it (“the second certificate” or “the drug certificate”). That finding prompted the issue of the summons containing the charge above mentioned. As part of the resulting prosecution, the second certificate was tendered and accepted in evidence by the respondent.
The Issues Founding the Application for Judicial Review:
5. In his affidavit grounding the application for judicial review, the applicant argued that this second, later certificate, being the only evidence adduced by the prosecution as to the presence of an intoxicant in his system, was not valid for the purposes of s. 19 of the 1994 Act (para. 32 infra). This argument was based on a number of grounds, including the following:
(i) that the Bureau’s seal was not affixed to it;
(ii) that the specimen which gave rise to the finding was not analysed “as soon as practicable” as required by that section; alternatively if it had been so analysed, the Bureau’s certificate was not forwarded to the gardaí “as soon as practicable”, also a requirement of the section; this conclusion followed in light of the time lapse between the receipt of the first certificate and the second, which in all involved a period of about three months;
(iii) that the said certificate was not, as a result, in the “prescribed form”; and
(iv) that the finding as certified, of the presence in his blood stream of a “cocaine class” drug, was not a finding of an intoxicant within the meaning of s. 19 of the 1994 Act, or indeed of any “drug” or substance known to Irish law.
6. The second issue raised centred on a suggestion that as the seal attached to the sample had to have been broken not later than the 13th November, 2006, there was a distinct possibility that between the actual date of its removal and the date of the drug testing, the state of the sample had become contaminated by some external cocaine like substance, thus giving rise to the finding as recorded. This possibility is entirely consistent with the applicant’s denial of having consumed any intoxicant on the day of his arrest.
7. In addition, it was further argued that the issue and subsequent use of the second certificate, at least without some forewarning, was unfair, as it was reasonable for the applicant to assume that, given the result in the first certificate, he was thereafter free from all threats of prosecution and so was justified in discarding his part of the specimen, which he did. Consequently there was a breach of fair procedures regarding this process, with the result that the conviction should be considered as null and void.
8. The material placed before the Court by the Director of Public Prosecutions (“the D.P.P.” or “the notice party”) in defending the judicial review application, asserted that no submission had been made to the trial judge regarding the bureau’s seal, the possibility of contamination, or the meaning of “cocaine class”, as found in the second certificate. Therefore the Court should decline to entertain any of these issues on the review application. Without prejudice to this contention, the overall position adopted by the notice party was that in reality, the application was an attempt to challenge the sufficiency and quality of the evidence, which was exclusively for the trial judge. Once evidence was adduced which was capable of sustaining the conviction, its assessment was solely for the court of trial. Therefore, the true nature of the complaint was of a type which was not amenable to evaluation by judicial review.
9. The submissions which were advanced in the High Court have been largely replicated on appeal and are set out at paras. 14 to 18 infra. As the decision of the High Court can be understood without any detailed consideration of these, I do not propose to reproduce them in this part of the judgment; but of course reference should be made to what later appears in that regard, if necessary.
The High Court Decision:
10. In his decision, O’Keeffe J., noted the regrettable “divergence of recollection” as to what submissions had been made in the District Court, but ultimately agreed with the notice party that the essence of the applicant’s argument pertained to the insufficiency of evidence. He instanced the following submissions, which were made partly before him and partly before the trial judge, as illustrating this point;
(i) that the applicant was only driving on the occasion in question, because he had been asked by the gardaí to go to Tuam Garda Station to resolve a particular problem (para. 17 infra): as this evidence was not challenged, his fitness to drive at the time could not therefore have been in issue;
(ii) that the description of “cocaine class” in the second certificate, did not confirm that a “sufficient degree” of such like substance had been found in the analysis, so as to render the applicant “incapable of having proper control of the vehicle”; and
(iii) that the evidence, when looked at from an overall perspective did not establish guilt beyond a reasonable doubt.
As can therefore be seen those were matters regarding the sufficiency of evidence: consequently and in accordance with the decision in Stokes v. District Judge Aidan O’Donnell, The Director of Public Prosecutions, Ireland and the Attorney General [1999] 3 I.R. 218 (“Stokes”) such could not form the basis for obtaining judicial review and therefore should be discounted.
11. The learned judge went on to hold that the Bureau was entitled to undertake the second analysis of the sample. Neither the opportunity to do so nor the issuance of the second certificate constituted unfair procedures. The gardaí never made any representation to the applicant that a further analysis would not take place. Moreover, by virtue of s. 19(4) of the 1994 Act it is to be presumed that sub-ss. (1) to (3) of that section have been complied with until the contrary is shown: in this context the applicant had not adduced sufficient evidence to rebut that presumption: The Director of Public Prosecutions v. Corrigan [1980] I.L.R.M. 145 (“Corrigan”). Finally it was unclear whether any complaint had been made in the District Court regarding the Bureau seal on the second certificate, but regardless, there was evidence now from Garda Duane who clarified the matter, thus removing any valid argument on this point.
12. In conclusion he rejected the submissions and dismissed the application.
The Appeal:
Notice of Appeal:
13. By notice of appeal dated the 14th July, 2009 it was claimed that the trial judge erred, in:
(i) concluding that the D.P.P. could rely on the statutory presumptions regarding the certificate and that he, the appellant, had not adduced any evidence to rebut those presumptions;
(ii) disregarding the legal consequences pertaining to the forwarding of the first certificate to the accused: in particular where the D.P.P. had failed to explain the delay between the respective certificates;
(iii) accepting that once the second certificate had been served within the six month time limit for the commencement of a summary prosecution, the time requirements, expressed in the provisions as being “as soon as practicable” had been satisfied and thus that s. 19 of the 1994 Act had been complied with;
(iv) finding that the circumstances surrounding the issue of the second certificate had not violated the appellant’s constitutional right to fair procedures; and
(v) holding that the appellant did not suffer any prejudice as a result of the failure to warn him of the possibility that his specimen may be further analysed and if so that a second certificate would issue at a later date.
Submissions:
14. The appellant argues that the delay in serving the second certificate was inherently unfair and unjust as the initial certificate led him to believe that no prosecution would be pursued and that being so, he destroyed the sample which he had retained up to then. Despite the absence of any express statement or action amounting to a representation by the prosecuting authorities, this was a reasonable conclusion for him to reach as members of the public would generally be unaware of any practice to conduct staggered analysis on such samples. This submission, he claims is in line with case law relative to an analogous situation, such as Eviston v. The Director of Public Prosecutions [2002] 3 IR 260 (“Eviston”) where the D.P.P. had expressly informed the accused that she would not be prosecuted, only to reverse such decision after further review. This was held to be a breach of fair procedures: likewise should the course of action pursued in the instant case, be so treated.
15. It is also said that the wording of s. 19(1) of the 1994 Act (para. 32 infra) does not permit the Bureau to carry out a second or further analysis. However, even if the legislation did not exclude this possibility, such a practice is contrary to the principles of fair procedures in particular where prejudice may arise, as here, with the discarding of the sample. The statutory entitlement to choose and retain part of the specimen is designed to protect the rights of the individual in question and must be supported accordingly.
16. The submission goes on to say that the trial judge erred in law in concluding that there was no evidence to support the contention that the second certificate was not furnished “as soon as practicable” as per s. 19 of the 1994 Act. Corrigan is distinguished as it is not only the lapse of time between the two certificates, which is in issue here, but also the additional fact that the first analysis produced negative results. Thus, the prosecution cannot rely on the presumption under s. 19(4) of the 1994 Act as the delay was in itself excessive and requires explanation.
17. Finally, no evidence was adduced in the first instance by Garda Duane to support what is an essential element of the charge namely, that the accused was incapable of properly controlling the vehicle on the occasion in question. This is particularly so in circumstances where he was asked to drive, by the gardaí, to Tuam Garda Station and was followed on this part of the journey by an unmarked Garda car. Furthermore, whilst the arresting Garda gave evidence as to capacity, he did not say that the accused was “high” when he stopped him. In any event, given the circumstances as just outlined, this could not have been a view shared by his other colleagues.
18. In all circumstances the appeal should be allowed.
The D.P.P.’s Submissions:
19. The D.P.P. submits that the trial judge did not err in either law or fact, and fully supports the reasons given by the learned judge for his decision. As a general point the D.P.P. reiterates that this is a case relating to insufficiency of evidence with the appellant in reality seeking to re-run his substantive defence to the s. 49 charge: thus the challenge is not befitting of judicial review; rather it logically is more suited to the appeal process which should have been pursued: see Stokes; Doyle v. Judge Connellan [2010] IEHC 287 (“Doyle”); and Dunne, Judicial Review of Criminal Proceedings (Dublin; Round Hall; 2011) at para. 2.16. The appellant however has not addressed this issue in his submissions.
20. It is also submitted that the appellant did not adduce any evidence to rebut the statutory presumptions contained in ss. 19 and 21 of the 1994 Act: Corrigan was cited in support of the consequences of such failure.
21. Significant reliance is also placed on the case of Power v. Judge Anthony Hunt and The Director of Public Prosecutions [2013] IEHC 174 where ss. 19 and 21 of the 1994 Act were discussed. O’Malley J. in that case, where the lapse of time between the two certificates was six weeks, was of the opinion that “there is nothing intrinsically wrong with having two certificates” (para. 29). Moreover, the emphasis placed by the learned judge on the nature and purpose of certificate evidence should also be noted: such permits the prosecution to prove evidence without having to call oral witnesses, which otherwise would be inadmissible as hearsay. This also supports the contention above made in para. 20 supra.
22. O’Keeffe J.’s determination that the appellant was not denied fair procedures is likewise reiterated. It is submitted that the circumstances of the instant case, that is, the issuance of the second certificate after the first certificate, is too far removed from the analogy which is sought to be drawn with Eviston in which a clear representation was made that a prosecution would not be pursued only then for the D.P.P. to reverse his decision. That situation has no parallel to the instant case.
23. Finally, the D.P.P. highlights that O’Keeffe J. also declined to grant the relief sought on the basis that a number of the grounds of appeal were not raised at first instance. This, it is said, was based on the doctrine of acquiescence/waiver and represents a correct statement of the law.
Scope of the Appeal
24. There is controversy in this appeal as to what issues the District Judge was addressed on by way of submissions made on behalf of the accused person. The affidavits of the presenting officers, Inspector Nicholson and Garda Duane, are focused and to the point, namely that no reference was made to the Bureau’s seal not having been affixed to the second certificate, that the possibility of the sample having been contaminated was never mentioned, and neither was the argument that the term “cocaine class” had no meaning in and was unrecognised by Irish law.
25. Notwithstanding those strong averments however, I am prepared to assume that some reference was made to the possibility of contamination, though I must confess, not without considerable misgivings. The affidavit of the solicitor who represented the accused person is, in respect of these matters, vague, imprecise and acutely tentative. This is in sharp distinction to the D.P.P. evidence. This conflicting situation put the High Court at a serious disadvantage as it was of course impossible for the judge to resolve these issues on affidavit, a difficulty which equally faces this Court. It is no answer to suggest that the deponents might have been cross-examined on their affidavits; these were legal submissions and should not have to be resolved in this manner. Surely it cannot be a difficult matter to note, at least in broad terms, what issues were so covered.
26. What I am not prepared to do however, is to permit the appellant to raise, as an appeal point, a ground which cannot be found in the notice of appeal, no matter how that document is viewed or interpreted. That notice lists five issues, in truth not more than two, namely;
27. On no possible reading of the notice can I find any reference whatsoever to the suggestion, which is now sought to be made, that the words “cocaine class” are incapable of being understood in Irish law and as a consequence the certificate in issue is legally meaningless. It is well-established law that a statement of the grounds of appeal should be specific and clearly stated: Hughes v. The Dublin United Tramways Company [1911] 2 I.R. 114. Just as the leave order, subject to any subsequent amendment, dictates the jurisdictional parameters of the review application, so also the notice of appeal serves a like or similar purpose before this Court: see McCormack v. An Garda Síochána Complaints Board [1997] 2 IR 489, Keegan v. Garda Síochána Ombudsman Commission [2012] 2 IR 570 and O. 87, r. 6 Rules of the Superior Courts. Consequently, this point, in my view, cannot be raised. This means that there are two broad issues for consideration, noting, that it is now accepted that the Bureau’s seal was in fact affixed to the original version of the second certificate, though this was not evident on the photocopy which the appellant received. In addition there is the third issue as to the suitability of pursuing the remedy of judicial review in the circumstances as disclosed. These matters will therefore be now addressed.
Lurking in the Background:
28. Lurking within this case are the immediate circumstances which in the first instance lead to the accused person driving his car on the occasion in question. It seems to be uncontroverted that some very short time before Garda Duane stopped him, colleagues of his, or at least one such colleague who in fact was identified by name in open court, went to his house and said that there was a problem, loosely later referred to as a “family problem”, which he had better go to Tuam Garda Station to resolve. The appellant therefore got into his car and drove for some distance before reaching the checkpoint manned by Garda Duane. He gave unchallenged evidence of this. He also gave unchallenged evidence that an unmarked Garda car followed him on this journey.
29. The D.P.P. in the affidavit sworn on her behalf, characterised the purpose which lay behind the giving of this evidence, as being an attempt to suggest that the checkpoint and arrest, were a “set-up” by the gardaí, but went on to immediately say that in any event, as Garda Duane was not aware of what had previously taken place, such a theory had no relevance and could be disregarded. I profoundly disagree.
30. This sequence of events seems quite extraordinary to me, and if the theory had been pursued, at least from my part, apparently unlike the trial judge who felt that such evidence was “neither here nor there”, I would have found it extremely disturbing and of necessity, would have demanded a full explanation for it. Whilst the judicial role is not, and correctly so, to be at the forefront of Garda behaviour, nonetheless, as the ultimate custodians of justice, it will not be found wanting in this regard if the necessity arises. In The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550 McCarthy J. made it quite clear that misconduct by the gardaí which affects an individual’s rights will not be dealt with solely by “a judicial rebuke, however severe”. Rather the rights in question will “be immediately enforceable without qualification and [regardless] of consequences…”. Hardiman J. in Lynch v. The Attorney General [2003] 3 IR 416 was likewise of the view that although the courts do not excercise a general disciplinary power over the executive, nevertheless they will not stand aside in face of unacceptable behaviour. Thus the courts will anxiously scrutinise any allegation in this regard.
31. However, the applicant disavowed any “set-up theory” in rendering such evidence: rather, the purpose was to suggest that since the garda in question evidently thought him fit to drive, this would be a significant piece of evidence in his favour regarding capacity. That being the situation, it is unnecessary to make any further comment on this issue.
The Delay Point - as a Breach of Statutory Provisions:
32. Section 19(1) of the Road Traffic Act 1994 as amended reads:
“19.- (1) As soon as practicable after it has received a specimen forwarded to it under section 18, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.
…
(3) As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which this specimen analysed was forwarded a completed certificate in the form prescribed for the purpose of this section and shall forward a copy of the completed certificate to the person who is named on the relevant form under section 18 as the person from whom the specimen was taken or who provided it.
(4) In a prosecution for an offence under this Part or under sections 49 or 50 of the principal Act, it shall be presumed until the contrary is shown that subssections (1) to (3) have been complied with.
33. Section 21(3) of the 1994 Act is also relevant in this context:
“(3) A certificate expressed to have been issued under section 19 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with the requirements imposed on it by or under this Part or Part 5 of the Act of 1968.”
34. As can therefore be seen, s. 19(1) obliges the Bureau to analyse the received sample “as soon as practicable”, with sub-s. (3) imposing a similar obligation as regards the requisite certificate in that the Bureau must forward the same, to the relevant Garda Station, and a copy to the individual in question, again “as soon as practicable”. These are the relevant time periods which the appellant says have been breached in his case. He claims that, from the respective dates of the first and the second certificates, such deduction can and should be made. Furthermore he asserts that the presumptions arising from the statutory provisions as quoted do not alter this conclusion in any respect.
35. In any prosecution taken under s. 49 of the 1961 Act, as that against the appellant, the D.P.P. can call in aid the presumption contained in s. 19(4) and also that specified in s. 21(3), of the 1994 Act. Under sub-s. 4, the presumption applies to all matters covered by s. 19(1) and 19(3). As pointed out, the time requirements in issue for both the analyses and the certificate are contained in those provisions. In any event, quite evidently, the presumption therefore applies to both of these events, the assessment of which is a question of fact. This in reality is not seriously contested.
36. The presumption under s. 21(3) of the 1994 Act has two aspects to it. Firstly, it declares that a certificate, duly issued, shall be sufficient evidence of the specific facts stated in the certificate until the contrary is shown: those facts relate to the name of the person who supplied the specimen, the nature of the specimen, when and where taken, the findings of the analysis, and the signature of the analyst. None of these matters are in issue and therefore this first aspect of this presumption is not material. The second part is much more general: it says that such a certificate shall be sufficient
(note, not conclusive), evidence of the Bureau’s compliance with its obligations as imposed inter alia by Part III of the 1994 Act and Part V of Road Traffic Act 1968. It therefore clearly includes, but evidently is not restricted to, s. 19 of the 1994 Act, nor is it confined to matters of fact. It extends to any requirement imposed on the Bureau, pursuant to the provisions, as mentioned. Accordingly, the situation is that s. 19 has the benefit of both presumptions which in part deal with separate matters but which in part also overlap to some degree. Moreover, the difference in wording between the presumptions might be noted, although the phrase “… until the contrary is shown …” is common to both.
37. Presumptions in law are many and varied in both form and substance, and can arise either from the common law or via statute. Simply stated, they are designed, at least for the most part, to ease the evidential burden on a party to either civil or criminal proceedings. They feed on proof of some basic fact(s) or proposition(s), which once established compels or allows a court to assume the existence of some other fact(s) or proposition(s). In this way, what can be inferred does not have to be established in a primary way, as the basic fact(s) or proposition(s) has to be.
38. The question which then arises is what effect such presumptions have? Given that there are many types, with variable views as to their proper classification and utility, it becomes necessary in discussing this question to confine our conversation to those arising in this case or to those which are analogous to them: otherwise the debate can be conducted only at the most general level.
39. The first thing to note is that the presumptions in issue are in statutory form and exist in the context of a criminal prosecution: therefore their wording must be strictly construed but will be influenced by the relevant rules of constitutional justice and fair procedures, as well as other principles such as the presumption of innocence and where the burden of proof rests. The importance of the latter can be seen in cases such as Hardy v. Ireland [1994] 2 I.R. 550 (“Hardy”) and O’Leary v. The Attorney General [1995] 1 I.R. 254 (“O’Leary”) which are two decisions of general importance for their interpretive conclusion on the effect of such presumptions.
40. Hardy related to offences under the Explosive Substance Act 1883 (“the 1883 Act”). Under s. 4 of the 1883 Act any person who knowingly has in his possession an explosive substance, in circumstances which give rise to a reasonable suspicion that he does not have it for a lawful object, shall be guilty of a felony unless he can show that his possession was for a lawful purpose. (Immaterial parts of the section omitted). It might be usefully observed that between the basic fact and the presumed fact, there is an intermediate requirement of a finding that the circumstances of such possession give rise to the suspicion mentioned: such requirements are sometimes to be found in presumptions, for example in s. 15 of the Misuse of Drugs Act 1977, as amended, and sometimes not. Their existence or absence is not material to the more general principles governing presumptions. Having been convicted under the s. 4 of the 1883 Act, Mr. Hardy argued that its provisions had the effect of changing the burden of proof so that he could be found guilty of the offence without that guilt having been proved beyond a reasonable doubt. As so viewed he claimed that the provision was not carried forward by Article 50 of the Constitution.
41. The Supreme Court rejected this argument. It held that the onus of establishing the guilt of the accused person, beyond a reasonable doubt, remained at all stages with the prosecution. Undoubtedly, on proof of possession with knowledge, and where the circumstances thereof gave rise to a reasonable suspicion that he did not have the substance for a lawful purpose, the evidential burden moved to the accused person. That burden could be displaced in any number of ways, such as cross-examination (O’Broin v. District Justice Ruane [1989] I.L.R.M. 732), submissions, or the giving of evidence by or on his behalf. However, at the end of the trial and before conviction the court must always be satisfied that the charge has been proven beyond reasonable doubt.
42. In the O’Leary case Mr. O’Leary was convicted of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939 (“the 1939 Act”), as amended. In its proofs before the Special Criminal Court, the prosecution relied on a presumption contained in s. 24 of the 1939 Act which provided that where it was established that the accused person had possession of an “incriminating document” relating to that organisation, such possession “… shall, without more, be evidence until the contrary is proved …” that he was such a member. His proceedings, which sought a declaration that the section breached his right to the presumption of innocence, were dismissed in both the High Court and on appeal by this Court. In rejecting a submission that the section imposed a burden on the accused person to prove that he was not such a member, the Supreme Court interpreted the provision as being referable to “evidence only” and thus its effect shifted the evidential burden, but did not disturb the legal burden.
43. In both of these case, once the basic fact was proved and once the intermediate requirement was established (Hardy), the wording of the provision appeared mandatory in form: Mr. Hardy “… shall, unless [he can show the lawfulness of possession], be guilty of a felony …”: with possession in Mr. O’Leary’s case having the effect that, “… it shall, without more, be evidence until the contrary is proved …” that he was a member of such organisation. It is important to recognise the very clear and definite distinction between mandatory legal presumptions and mandatory evidential presumptions. As made clear in both Hardy and O’Leary, the proper construction of s. 4 of the 1883 Act and s. 24 of the 1939 Act, given the constitutional context in which such provisions arise, is to regard them as evidentially focused, thus leaving untouched the legal burden with regard to the guilt or innocence of the accused.
44. Although Hardy and O’Leary dealt with specific statutory provisions, I have no doubt but that, unless clearly mandated by its specific wording, all such presumptions should likewise be construed; if necessary the double construction rule should be invoked: McDonald v. Bord na gCon [1965] I.R. 217. Otherwise constitutional issues will arise.
45. It is therefore the case that, once the basic fact(s) is established, the onus shifts to the opposing party to negative the existence of the presumed fact(s), proposition(s) or state of affairs; one can do so by producing evidence as to their non-existence. If successful to that end, the result, quite obviously, is that the presumption does not apply and in such circumstances, the party in whose favour the presumption existed, must establish the presumed fact in the normal way.
46. Two final matters of general importance might be mentioned. As the shifting of the evidential burden in the context under discussion does not relate to the question of guilt or innocence, there is therefore no question of the standard of proof being that of beyond a reasonable doubt. The standard in my view should not exceed the civil standard, which standard Egan and Murphy JJ. applied in Hardy. In fact I am not even convinced that contrary proof to such level is required. It may be that evidence, of a credible and plausible nature, which creates a reasonable doubt, would be sufficient to negative a presumption. However, as the point was not really addressed I defer in giving a definitive view on it.
47. The second is that all presumptions which impact on the exercise of judicial power are rebuttable: those, on a true construction, which compel a judge to arrive at a conclusion by a process which dictates how judicial power should be exercised cannot stand, as it impinges upon the provisions of Article 34.1 of the Constitution. Maher v. The Attorney General [1973] I.R. 140 and The State (McEldowney) v. Kelleher [1983] I.R. 289.
48. The presumptions specific to the 1994 Act have been looked at in a number of cases. In Corrigan, where the lapse of time between the sending of the sample and the receipt of the Bureau’s certificate was one month, Finlay P. said that the mere lapse of time without more, certainly given the period involved in that case, could not form the basis for shifting the presumption. In order to reach such a conclusion, it would be necessary, the President continued, for the Court;
“… to have before it material indicating the practical difficulties and surrounding circumstances under which either or both of these activities [analysis and forwarding of certificate] was carried out by the Bureau on the one hand, and the effect and consequence of any delay that occurred on the other. The onus of establishing the facts in which a court could draw conclusions on these two topics is clearly, having regard to the terms of the sections, upon the defendant”. (p. 148)
Although Corrigan concerned the Road Traffic (Amendment) Act 1978, the provision in issue was identical to s. 21(3) of the 1994 Act.
49. Finally, in The Director of Public Prosecutions v. Fennelly (Unreported, Supreme Court, 2nd December, 1998) O’Flaherty J. said, by reference to s. 21(3) of the 1994 Act, that a duly completed medical Bureau certificate “… really proves itself. It stands ‘until the contrary is shown’.”
50. In summary and at a general level the position regarding presumptions is as follows:
(i) Presumptions are creatures which assist a party, in either civil or criminal cases, in discharging the proof upon him, in respect of matters covered, and to the level as provided.
(ii) These are variable in both substance and form: some follow from the establishment of basic facts: some have added requirements: the wording of any particular one may differ from another: some directly address the court “the court shall …”: some do not “… it shall be presumed …”: the nature of what may be inferred can also vary, and they may arise either at common law or by statutory provision.
(iii) In the criminal context, almost all must be interpreted in light of basic legal and constitutional principles such as fair procedures and constitutional justice and what these may give rise to, in the context of any given case, for example the presumption of innocence, burden of proof, etc.. When so viewed, there will be very few indeed, if any, which are not confined to the evidential burden of proof: those which are suggested as affecting the legal burden will be scrutinised with great care as to their compatibility with such provisions.
(iv) When the onus shifts the standard of rebuttal is not at the criminal level: at most it is on the balance of probability: arguably an even less standard such as creating a reasonable doubt, could be sufficient.
(v) When that standard has been satisfied, the presumption is disapplied with the result that the obligation reverts to he upon whom the general onus of proof rests.
(vi) Any presumption, which forecloses on the exercise of judicial power, such as one being described as “conclusive” as to guilt, will be considered as an infringement on that power. It will, as a result, be stood down.
51. Before outlining my conclusion on this point, there is one further matter which was raised very much on the periphery by the appellant: it was to suggest that s. 19(1) of the 1994 Act permits the Bureau to test for alcohol or for drugs, but not for both. This was based on the use of the conjunction “or” on the third line of the provision. Such a view in my opinion is a misreading of the section. As properly understood, the conjunction signifies to me that the analysis and process differ, as between alcohol and drugs and that therefore there are separate steps of procedures involved, depending on which particular substance is being tested for. This is supported by the definition of “analysis” in s. 9(1) and by the definition of an “intoxicant” in s. 10, both of the 1994 Act. I therefore reject any such interpretation of the provision.
52. Against the background of the presumption of appropriate compliance and due regularity by the Bureau, of its obligations to test the specimen and to forward the required certificate within the timeframe as set out in s. 19 of the 1994 Act, the question is whether the appellant has discharged the burden of proof on him so that the notice party can no longer rely on the presumption. If he has, it will then become necessary to make an actual determination as to whether those steps have been carried out “as soon as practicable”: if he has failed to do so, such a determination will not be required.
53. The appellant called no evidence as part of his rebuttal to this presumption: nor were any questions asked of the gardaí in this regard: even if they had however, it is most probable that he would have had nothing useful to contribute. The entire basis of the challenge rests on the respective dates when the first and second certificates were received. Taking the first date as the reference point, it is claimed that the lapse of almost three months is in itself sufficient to discharge the burden. With respect, I cannot agree.
54. I come to this conclusion not merely on account of what Corrigan said, namely that “a mere lapse of time without any other evidence” would not be sufficient, as the gap in that case was only a little over a month, nor on the basis advocated by the learned trial judge, which if correct, would have the effect of substituting the period of six months for the phrase in issue, but rather on the following basis.
55. It seems clear that the test for drugs is different from the test for alcohol, and that each involves a separate process of analysis. Certainly in this case the analyst differed from one test to the other. In addition, the Regulations, the Road Traffic Act, (1994) (Part III) (Amendment) Regulations, 2001 (S.I. No. 173/2001), provide separate forms to record the result for alcohol and drugs: indeed this is quite apparent from the actual certificates issued in this case, the first in express terms certifying the concentration of alcohol with the second being referable solely to drugs. It therefore seems probable that a composite single test is not appropriate with the evident result that either one must follow the other. That being so, I do not think that it is necessarily correct to regard the date of the receipt of the first certificate as being the appropriate reference point from which the time period should be measured. There may be many reasons internal to the Bureau, for example, the practical difficulties and surrounding circumstances in which it carries out its activities (Corrigan), which fully explain the time period involved, or of course, there may not be. But in the absence of some evidence in this regard, the Court in effect is being invited, without any basis therefor, to conclude that no such reasons exist. This it cannot do.
56. The situation may be different in the case of a single sample, where the forwarding of the specimen may be regarded as a fixed and definitive date. That is not the case here. Moreover, one cannot even say what part of the time period passed before the analysis was done or what part expired, before the certificate issued. Consequently, in these circumstances, I cannot agree that the presumption has been stood down. Accordingly, it necessarily follows that the District Judge was correct in accepting the certificate as evidence and in relying upon it, in accordance with the relevant provisions of the 1994 Act.
57. Before I move to the next issue I should point out that no argument whatsoever has been made by either party as to what consequences might follow should the Court find that the time requirements had not been adhered to. It has been assumed that a failure to act “as soon as practicable” in either situation will be fatal to the legal utility of the Bureau’s certificate. That may well be the case but in the absence of argument and authority I hold my view on it.
Fair Procedures:
58. The second substantive argument advanced on behalf of the appellant is that, in the circumstances outlined, there has been a breach of fair procedures which can only be remedied by an order of certiorari quashing the above mentioned conviction. Eviston has been cited to support this proposition. In my view, this case has only marginal relevance to Mr. Sweeney’s position.
59. Mrs. Eviston had been the driver of a motor vehicle involved in an accident resulting in the death of a third party. After the criminal investigation had been concluded, the D.P.P. intimated to the investigating gardaí that no prosecution would result, which information was subsequently conveyed to the applicant via her solicitor. On becoming aware of this, the victim’s father made a representation to the D.P.P. for a review of that decision. The result was to charge Mrs. Eviston with dangerous driving causing death. This decision she successfully challenged on various grounds in the High Court, which the D.P.P. appealed therefrom to this Court.
60. Keane C.J. reviewed the general principles of law which apply to the D.P.P. in the discharge of his statutory functions. These can be summarised as follows:
(i) In deciding whether or not to prosecute, the decision of the D.P.P. will not be reviewable unless it was made male fides, influenced by an improper motive or governed by an improper policy, or where he has abdicated his functions (The State (McCormack) v. Curran [1987] I.L.R.M. 225). The Chief Justice also felt that the facts should not exclude the reasonable possibility of there being a proper and valid decision not to prosecute.
(ii) There is no obligation on the D.P.P. to give reasons for the making of such decision (H. v. The Director of Public Prosecutions and the Commissioner of An Garda Síochana [1994] 2 I.R. 589).
(iii) This is based partly on the fact that such decision does not involve the exercise of judicial power and secondly, save in the limited instances referred to at (i) above, that such decision is not reviewable.
(iv) Even though the two well known principles of audi alteram partem and nemo iudex in causa sua do not, strictly speaking, apply in the making of such a decision, nonetheless it is unquestionably the case that in the discharge of her statutory functions, the D.P.P. is bound to observe general constitutional requirements of fairness and fair procedures. This obligation encompasses much more than simply the two principles which I have mentioned.
61. On the facts of the case, the essential reason for injuncting the continuation of the summary proceedings was, in light of the communication not to prosecute, the reversal of such decision in the absence of any change of circumstances. On the facts it was held that the D.P.P. had acted in breach of fair procedures.
62. In addition to what is set out above, but also in a manner quite independently of it, it is quite evident at the level of principle that in the discharge of its statutory functions, the Medical Bureau must have regard to, and act in conformity with, the principles of natural justice and fair procedures. This was made clear, at the level to which I speak, in East Donegal Co-Operative Livestock Mart Ltd. & Ors. v. The Attorney General [1970] I.R. 317 where at p. 341, Walsh J., having referred to the presumption of constitutionality, went on to say:
“At the same time, however, [that presumption] carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
This statement of the law therefore has every application to the Bureau’s statutory functions under the Road Traffic Code.
63. As para. 61 supra indicates, the real unfairness in Eviston was the complete reversal of a decision not to prosecute, which had been expressly communicated to the applicant, without any change or alteration in the underlying circumstances. The situation here is quite different.
64. In considering the fairness issue in this case, it must be borne in mind that the s. 49 offence relates to an intoxicant, which by definition may be either alcohol or drugs, or a mixture or combination of both. As above stated, the test for either is different, with the regulations providing for two different forms on which the individual results are to be recorded. Those forms, in express terms, are classified either as relating to alcohol or to drugs, but not to both. The possibility therefore that two certificates could issue could not be reasonably regarded as being unusual: if anything, particularly where the first contains a negative finding, one might expect an analysis also for the other substance. In any event, on receiving the first certificate, the applicant must, or at least must be regarded as knowing that the certificate related solely to alcohol. Its contents therefore could not have amounted in any way to a representation either that a second certificate would not issue or that he was free from any prosecution threat arising out of his arrest.
65. The real issue in this context is I think the discarding of the specimen given to him in the Garda Station. But for that, he would have no point on this issue. However, his act in so doing must be looked at in the legal context of the statutory provisions which, by reason of his arrest, he was engaged with. By reference thereto, it is quite clear for the reasons which I have advanced that whilst free to make such decision, he cannot establish any basis for imputing some legal consequences as a result, to the notice party. Therefore, I do not consider that what occurred amounted to a breach of fair procedures.
The Appropriateness of Judicial Review:
66. The evidence at trial given by Garda Duane as to the appellant’s physical condition was that his eyes were bloodshot, glazed and dilated: he was, in conversation, disorientated as to speech and manner. It was, as the garda put it in his affidavit, as if the accused was “high”, though it is disputed if in fact he even used this particular description. The Garda went on to tell the District Judge that by reason of such matters he had formed the opinion that the appellant had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle. This evidence was of course supported by the certificate from the Medical Bureau.
67. In addition to cross-examining this witness, the appellant himself gave evidence, explaining the appearance of his eyes as relating to his job as a coal merchant. He denied consuming any drug substance, and pointed to the events which led up to his driving in the first instance, as supporting his capacity to drive on that occasion.
68. The District Judge was thus faced with evidence which might be considered as inconsistent, if not conflicting. Based on where such evidence rested, the appellant urged an acquittal, arguing that he had raised a reasonable doubt regarding his capacity to drive. The District Judge evidently had to make a decision on this: she rejected his submission, and convicted, having been satisfied on the prosecution’s evidence that each essential element of the charge had been established to the criminal standard. In my view she was perfectly entitled, as a matter of law and fact, to do so. It was her obligation to assess the quality and adequacy of what had been tendered for her consideration. Once there was sufficient evidence to sustain the conviction, it was entirely a matter for her to reach a decision on it. The issue, which confronted the judge, and one which the appellant wishes to re-litigate in these proceedings, is therefore clearly “an assessment of evidence” issue. That being so, I am quite satisfied that judicial review is an inappropriate remedy to address any such grievance which the appellant may have in that regard.
69. The case law fully supports this viewpoint. The High Court, when exercising its judicial review jurisdiction, is not a court of appeal, save as provided by statute, and should not lend this jurisdiction to second guessing the adequacy or sufficiency of the evidence given at trial: Murphy J. in Roche v. District Judge Martin [1993] I.L.R. M. 651 described the making of such a case “as virtually impossible”. Nor should the Court minutely comb the evidence as given to test the conclusions reached: Truloc Ltd. v. District Judge Liam McMenamin and Donegal County Council (Notice Party) [1994] 1 I.L.R.M. 151. Likewise, where it was suggested that there was a conflict in the evidence, such that a particular presumption could not apply; Stokes. Geoghegan J. in Buckley v. Judge Brian Kirby and The Director of Public Prosecutions [2000] 3 IR 431 stated, in relation to that case: “Since this is a case of an alleged incorrect assessment of the evidence or lack of it, an appeal is quite obviously the appropriate remedy” (p. 436). Finally, the issue in dispute in Doyle, was whether the prosecution had tendered evidence as to the driving incapacity of the accused on a charge under sub-ss. 49(1), and (6)(a) of the 1961 Act, as amended, which is almost identical to the real issue in the instant case. Kearns P. was quite adamant that the application could not succeed, and that the appropriate remedy was by way of an appeal. See also Flynn v. District Judge Kirby (Unreported, High Court, 19th December, 2000, O’Higgins J.).
70. I respectfully agree with these decisions and would only add the observation that in rare cases, it may be possible to mount a judicial review challenge, even where an appeal may be an option, where the proceedings have been so fundamentally flawed as to breach an important tenet of natural or constitutional justice: Sweeney v. District Judge Brophy and The Director of Public Prosecutions [1993] 2 I.R. 202. Nothing remotely of this kind has occurred in this case. In my view therefore, the appellant, having lodged a notice of appeal, should have pursued that remedy, and should not have embarked upon these proceedings.
71. For the above reasons I would dismiss this appeal.
