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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Weir -v- D.P.P. [2008] IEHC 268 (29 July 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/H268.html Cite as: [2008] IEHC 268 |
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Judgment Title: Weir -v- D.P.P. Composition of Court: Judgment by: O'Neill J. Status of Judgment: Approved |
Neutral Citation Number [2008] IEHC 268 THE HIGH COURT 2007 No. 628 S.S.
BETWEEN MARY WEIR APPELLANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA FRANCIS J. GOODMAN) JUDGMENT of Mr. Justice O’Neill delivered on the 29th day of July, 2008 This case came before this Court as an appeal by way of case stated pursuant to s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1951, the case having been stated by Judge John Brophy, a judge of the District Court. The relevant facts as proved or admitted or agreed and as found by the learned District Judge, in summary, are as follows:- On the night of 9th November, 2006, at Charterschool Lands, Longwood Road, Trim, County Meath, the appellant was stopped by Garda Francis Goodman, at a garda checkpoint set up pursuant to s. 4 of the Road Traffic Act 2006, (the Act of 2006) and a roadside breath test was performed on her. The appellant failed the test. Garda Goodman formed the opinion from the result of the test and from his observation of the appellant that she was under the influence of an intoxicant to such an extent as to render her incapable of operating a mechanically propelled vehicle in a public place and that she had committed an offence under subs. (1), (2), (3) or (4) of s. 49 of the Road Traffic Acts 1961-2006. Garda Goodman informed the appellant of his opinion and that he was arresting her under s. 49(8) of the Road Traffic Acts 1961-2006. The appellant was arrested at 9pm and was brought to Trim Garda Station. A further breath test was carried out there by Garda Eric McGovern using the Lion Intoxilyser 6000 IRL. Garda McGovern furnished the appellant with a signed statement pursuant to s. 17 Road Traffic Act 1994 (the Act of 1994) which contained a reading of 48 microgrammes of alcohol per 100 millilitres of breath. The appellant was charged at 10.15 pm with offences under ss. 49(4) and (6) (a) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994, as amended by s. 23 of the Road Traffic Act 2002, as set out on charge sheet number 557818. The appellant was released from custody at 10.53 pm. Pursuant to a "Gary Doyle" order made in the District Court on 24th November, 2006, a letter was sent to the appellant's solicitor enclosing statements of four gardai, a copy of the charge sheet, a copy of the evidential breath certificate and a copy of the custody record. The documents furnished to the appellant's solicitor did not include a written authorisation pursuant to s. 4(3) of the Act of 2006. At the subsequent trial, Garda Goodman gave evidence that on the night of 9th November, 2006, he and a colleague had been directed to operate a mandatory alcohol breath test checkpoint under s. 4 of the Road Traffic Act 2006, and that the checkpoint had been authorised by an inspector. In the District Court, at the close of the prosecution case, Mr. Dwyer B.L., counsel for the appellant, sought a direction of no case to answer on the grounds that a written authorisation to set up the checkpoint was a required proof in a case involving a mandatory roadside breath test, in circumstances where it led to the deprivation of the appellant's liberty. The learned District Court Judge refused this application and held that it was sufficient that Garda Goodman had given oral evidence that the checkpoint had been authorised. At no stage was an application made by the respondent to re-open the case nor was there any application to adjourn the case so that the written authorisation could be produced. After hearing the evidence from Garda Goodman and Garda McGovern, the learned District Court Judge convicted the appellant. He imposed a fine of €500 on her and disqualified her from driving for one year. Arising out of the foregoing, the learned Judge posed the following two questions for the opinion of this court:-
(4) A member of the Garda Síochána, who is on duty at a checkpoint, may stop any mechanically propelled vehicle at a checkpoint and, without prejudice to any other powers (including the powers under section 12 (inserted by the Act of 2003) of the Act of 1994) conferred on him or her by statute or at common law, may require a person in charge of the vehicle (a) to-
(ii) accompany him or her or another member of the Garda Síochána to a place (including a vehicle) at or in the vicinity of the checkpoint and there to provide, by exhaling into such an apparatus, a specimen of his or her breath, or
(ii) move it to a place in the vicinity of the checkpoint, and keep or leave it there until the person has complied with a requirement made of him or her under paragraph (a).
(b) without reasonable excuse, refuses or fails to comply immediately with a requirement under subsection (4)(b)(ii) or such a requirement in a manner indicated by a member of the Garda Síochána under subsection (5) is guilty of an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months or both.
(8) In a prosecution for an offence under this section, section 49 or 50 of the Principal Act or Part III of the Act of 1994 it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide a specimen of breath pursuant to this section is an apparatus for indicating the presence of alcohol in the breath. (9) An. authorisation or a copy expressing itself to be such authorisation, shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961 to 2006, of the facts stated in it, without proof of any signature on it or that the signatory was a person entitled under subsection (2) to sign it. (10) Section 13(1) of the Act of 1994 is amended by substituting ‘section 12(4) or section 4(6) of the Road TrafficAct 2006,’ for ‘or section 12(4)’ (inserted by section 3 of the Act of 2003).” Section 109 of the Principal Act, as amended by the schedule to the Road Traffic Act 1968, gave the gardaí the power to operate checkpoints. It provides as follows:-
(a) has consumed liquor, (b) is or has, with the vehicle, been involved in a collision, or
With respect to common law powers of arrest, this Court (Carney J.) held in D.P.P. (Stratford) v. Fagan [1993] 2 I.R. 95, that a garda could stop a vehicle at a checkpoint without first suspecting that the particular driver had committed an offence under the drink driving laws in certain circumstances. This was confirmed by the Supreme Court in the same case at [1994] 3 I.R. 265. The common law powers to stop a vehicle were identified by Finlay C.J. (Egan J. concurring) at p.268 as being:-
(b) a youth driving a particular type of car which having regard to his appearance and the type of car concerned gives grounds for suspicions that he might have stolen it; or (c) that it coincided with a make or type of car reported as having been used as a getaway car after the commission of a crime. From the above it is clear that s. 4 of the Act of 2006 represented a new departure in the law governing arrest for drink driving offences. It authorises a garda to carry out a random breath test at a checkpoint, without the need for that garda to form any opinion about a particular driver or vehicle and to arrest or detain for that purpose. It is against this backdrop that the issues in the instant proceedings must be considered. The first issue which falls to be determined is whether or not s. 4 of the Act of 2006 requires that the authorisation of the checkpoint be proved in criminal proceedings as an essential proof. A useful exercise is to consider the legal consequences if there was in fact no written authorisation as required by s. 4(3) of the Act of 2006. Whilst the stopping of a vehicle could be lawful if reliance could be placed on one or other of the statutory or common law powers set out above, the demand on the appellant to undertake the roadside breath test and the carrying out of that test and the detention of the appellant for that purpose, in the absence of the formation of the requisite suspicion or opinion for other forms of arrest, would undoubtedly be unlawful and as a consequence the State could not be permitted to enjoy the fruits of that intrusion on constitutional rights. That being so, the result of the roadside breath test would have to be excluded as a basis of a legitimate suspicion or opinion that a person had committed an offence under s. 49(8) of the Principal Act. It follows that the necessary ingredient for a lawful arrest under s. 49(8) of the Principal Act would be missing. Assuming for the purpose of the above exercise that there was no authorisation in the present case, it would be unreal in the present case, in the context of the random roadside breath to consider that the “observation” of Garda Goodman, was a sufficient basis for a lawful arrest under s. 49(8) of the Principal Act even if it could be detached from the unlawfully obtained fruits of the invasion of the appellant's constitutional right to liberty. Hence, in my opinion, if there was no written authorisation in the present case, the arrest pursuant to s. 49(8) of the Principal Act in this case would have to be regarded as unlawful. There can be no doubt, but that s. 4(3) of the Act of 2006, requires that there be a written authorisation. The necessity for proof of the existence of this authorisation is not in contest. It is an essential proof because the burden of proving all matters essential to establish the prosecution case rests on the prosecution and without proof of compliance with ss. 4(2) and 4(3) of the Act of 2006, the court could not be satisfied beyond a reasonable doubt that the primary evidence to establish the guilt of the appellant i.e. the statement issued by the intoxilyser machine, was obtained in accordance with law. The written authorisation under s. 4(3) of the Act of 2006 can be considered to be the legal act which makes lawful (where no other power of arrest is invoked) the stopping of drivers at the side of the road which, in turn, makes lawful the demand on someone to blow into the apparatus designed to indicate the presence of alcohol in breath which, in turn, makes lawful that person’s detention for the purpose of performing the roadside breath test. The potential breach of a person's constitutional right to liberty under Article 40.4.1 of Bunreacht na hÉireann necessitates that there must be strict compliance with the requirements of s. 4 of the Act of 2006. In order to establish the lawfulness of the entire process proof of the existence of a written authorisation is essential. The question arises as to whether the oral evidence of the garda in this case, to the effect that the checkpoint was authorised by a garda inspector is sufficient, in the absence of contradictory evidence, to prove compliance with s. 4 of the Act of 2006? The nature of the evidence which proves the existence of a written authorisation to establish a checkpoint, under s. 4 of the Act of 2006 is probably self explanatory. The best evidence is the document itself, although s. 4(9) contemplates that a copy of the authorisation will suffice as proof of the written authorisation. This best evidence rule was summarised by O'Flaherty J. in Primor plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 at p.518 as follows:-
Section 4(9) of the Act of 2006 dispenses with the need for a garda inspector to attend court to give oral evidence to prove, in the ordinary way, the written authorisation to establish a checkpoint. Oral evidence was given by Garda Goodman at trial that the checkpoint had been authorised by Garda Inspector Martin Smithers. His evidence appears to have been to the effect that the checkpoint was authorised but he does not appear to have said that the authorisation was in writing, which of course is what s. 4(3) requires. No explanation was given by him at trial as to why the original or a copy (if it existed) was not tendered in evidence. No evidence was given to the effect that the original written authorisation or a copy of it had been lost or destroyed or for some reason, it was physically or legally impossible to produce the original or a copy. No explanation whatever was given for the absence of the written authorisation or a copy and the respondent does not contend that there was no need for the garda to prove the checkpoint was authorised at all. I am satisfied that in the absence of exceptional circumstances, which do not exist in this case, the written authorisation to set up the checkpoint under s. 4 of the Act of 2006 was a necessary proof. As discussed above, the arrest and detention of the appellant pursuant to s. 49(8) of the Principal Act and, hence the admissibility of the results of the intoxilyser breath test are premised on the existence of a written authorisation establishing a checkpoint. If evidence is obtained in breach of the constitutional right to liberty, the exclusionary rule applies, meaning that the evidence obtained thereafter is excluded, unless as explained by O'Hanlon J. in DPP v. Spratt [1995] 2 I.L.R.M. 117 at p.123:-
In this context, proving the written authorisation is obviously essential having regard to the onus on the prosecution to prove all facts necessary to establish the guilt of the appellant. It is axiomatic that this burden of proof includes establishing the lawfulness of the steps taken to acquire the necessary evidence. It was submitted by counsel for the respondent that the appellant ought to have challenged the evidence of Garda Goodman by cross-examination and in the absence of such challenge, the learned District Judge was entitled to accept his evidence as sufficient to establish that there had been a valid authorisation for the purpose of s. 4 of the Act of 2006. I cannot agree with that submission. If it were correct, in effect, the burden of proving an essential prosecution proof would have been shifted to the appellant, which of course cannot be right. In any criminal prosecution, an accused person is entitled at the close of the prosecution case to seek a direction of no case to answer on the basis that the prosecution has failed to prove the case against him. There is no onus on an accused person to intervene by way of cross examination to fill gaps in the prosecution case. In this case the prosecution did not put in evidence the original or a copy of a written authorisation and did not explain by evidence why it was legally or physically impossible to produce in evidence either the original or a copy of the authorisation. Hence, the prosecution were not entitled to avail of an exception to the best evidence rule. In any event, the evidence of Garda Goodman, even if admissible, could not have proved an essential feature required by s. 4(3) of the Act of 2006 namely, that the authorisation was a written authorisation. For the reasons set out above, I would answer both questions posed by the learned District Court Judge in the negative. |
