Court allows breath test statements despite garda signing error, finding no trial unfairness.

THE DISTRICT COURT DISTRICT COURT AREA OF LIMERICK DISTRICT NO 13 DIRECTOR OF PUBLIC PROSECUTIONS PROSECUTOR

- AND - DARIUSZ GORECKI ACCUSED Judgment of Judge Brian O’Shea at delivered at Limerick District Court on the 23rd day of January 2019

1. This is an application for a direction at the close of the prosecution case. The accused is charged with driving a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol on his breath exceed the statutory limit.

2. The evidence established that the apparatus designed to measure the concentration of alcohol on the breath printed two identical statements in accordance with section 13 of the Road Traffic Act 2010 as amended. The garda presented both statements to the accused. He required the accused to sign both statements and warned him that it is an offence not to comply. The accused signed both. The garda then signed both statements, offered the accused either of the two, and the accused retained one.

3. The issue for determination is whether the fact that the garda omitted to sign the section

13 statements before furnishing them to the accused for signing renders the statements inadmissible as evidence.

4. The statutory and regulatory framework associated with the procedure dictates that where the apparatus determines the specimen exceeds the legal limit a garda must immediately supply the accused with two identical statements, automatically produced by the apparatus in the prescribed form and duly completed by the garda in the prescribed manner, stating the concentration of alcohol in that specimen as determined by the apparatus. “Due completion” requires the garda to sign the statements following their production by the apparatus. The accused must then acknowledge receipt by signing both statements and returning one to the garda.

5. The accused argues that the section 13 statements were not “duly completed” within the meaning of the regulation at the time that the accused signed them because the garda should have signed them before presenting them to the accused for signing. Further, he argues that this error in the statutory procedure causes an illegality, arising from which the statements are inadmissible as evidence. In support of his contention he relies upon the decision of DPP v Freeman [2009] IEHC 179.

6. In Freeman the evidence established that the garda furnished the two identical statements to the accused, who signed both before the garda signed them. The judge of the District Court determined that the statements were not “duly completed”. The prosecutor appealed by way of case stated. In the High Court, MacMenamin J accepted that what had occurred was a mere technical omission. He described the argument as “wafer thin”. He noted that no substantive injustice had been perpetrated. However he held that to be “duly completed” a form signed by an accused had to have been already completed in accordance with the legislation, and therefore had to contain the garda’s signature. The DPP appealed the decision to the Supreme Court where the appeal was dismissed and the order of the High Court affirmed.

7. The facts in Freeman are indistinguishable from the instant case but that is not the end of the matter. While Freeman is binding on this court so too is the more recent decision of the five-judge Supreme Court delivered by O’Malley J in DPP v Avadenei [2017] IESC 77.

Avadenei is also is a drink driving case. The principal issue in that case was whether a section 13 statement adduced in evidence was in the form prescribed by the regulations and, if not, whether it should nonetheless be admissible evidence as to the truth of its content.

8. In Avadenei O’Malley J conducted an extensive review of drink driving cases. She distilled the defences that arise from flaws in the implementation of statutory procedures in such cases into four categories, as follows (page 41, paragraph 87 of the judgment): “ … the analysis of the authorities cited above demonstrates that in principle a flaw in the implementation of the statutory procedures will invalidate the evidence produced under the statutory regime if: (i) A precondition for the exercise of the power to require a specimen has not been met, as where there has not been a lawful arrest; or (ii) The power purportedly exercised was not a power conferred by the statute, as where a demand was made in circumstances where the driver was under no obligation to comply;

or (iii) The power is exercised without full compliance with the statutory safeguards for the defendant’s fair trial rights; or (iv) The power is erroneously exercised, or procedures are erroneously followed, in such a fashion that the evidence proffered as a result does not in fact prove what it was intended to prove. [Emphasis added].

9. In relation to category (iii) however, O’Malley J opines (page 42, paragraph 90 of the judgment) that in such instances there should be an analysis of: “the actual effect of the procedural error, or flaw in the documentary proof, on the fair trial rights of the defendant. If a breach of the statutory procedure is established, but it has no consequences in that no unfairness, prejudice or detriment can be pointed to, then the normal standards applicable to criminal trials would indicate that the evidence is admissible.

10. She continues: “My own view, therefore, would be that … Freeman should be regarded as being at the far end of the spectrum of insistence upon the letter of the statute … it is correct to say that in Freeman the form proffered to the defendant for signature was not, at that point, a “duly completed” form. After all, the form would have no evidential status if not signed by the garda. If the defendant had refused to sign it unless the garda did so first, it is difficult to imagine that he could have been prosecuted for such refusal.

However, in circumstances where the garda signed it immediately after the defendant, it is again hard to see any impact upon the fairness of the trial of the offence with which the defendant was charged. I bear in mind here the consideration, which obviously influenced MacMenamin J., that a person in this situation signs the form under pain of prosecution in the event of a refusal to sign. However, it is important to note that the signature is simply for the purpose of confirming receipt. It cannot be held to amount to approbation of the contents – the defendant is neither accepting nor warranting the accuracy of the content of the statement. The fact that there is a legal compulsion to sign does not, in my view, necessarily relate to or justify a conclusion that a flaw in the form means that it should be excluded.”

11. While Freeman is directly on point in terms of the facts of the instant case Avadenei is a more recent decision. Further, the range of cases critically analysed is considerably more extensive than in the affirmation by the Supreme Court of the High Court decision in Freeman. Avadenei mandates that where a flaw is identified in the implementation of the statutory procedure the trial court must engage in an analysis of the actual impact of that flaw on the fair trial rights of the accused. If the evidence is to be excluded then there must be some unfairness, prejudice or detriment. This conclusion appears obvious yet has never been stated with such clarity prior to Avadenei. As Avadenei is later in time than Freeman it is unsurprising that the process now mandated by Avadenei was not applied in full in Freeman. Freeman must now be read in the light of Avadenei.

12. Turning to the instant case. This court accepts that on the evidence there was a clear breach of the express statutory provision. The flaw in the implementation of the statutory procedure arose from the omission by the garda to sign the two identical statements before furnishing them to the accused for signing. The accused is not being prosecuted for refusing to sign the statements; if he was then different considerations would apply. The reason the accused was required to place his signature on the two identical statements was to acknowledge receipt of them rather than agreeing to the veracity of their content. As a matter of fact the accused signed both statements. The garda then signed both statements. The accused was given the choice of retaining one of the statements, which he did.

13. On any reasonable analysis of this sequence of events there is no consequences in terms of the fair trial rights of the accused as there is no unfairness, no prejudice and no detriment. Consequently, to use the words of O’Malley J, the normal standards applicable to criminal trials indicates that the statement is admissible.

14. Accordingly the application for a direction is refused.