Court held evidential burden on accused in breath test cases can be discharged by direct and cross-examination evidence.

[2011] IESC 46

THE SUPREME COURT

201/2007

Murray J

Hardiman J.

Macken J.

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA ELAINE ROWAN)

Prosecutor

and

FRANK ENNIS

Accused

JUDGMENT of Mr. Justice Hardiman delivered the 6th day of December, 2011.

1. On a date in 2007, not unfortunately readily legible in the documentation before this Court, His Honour Judge Terence O’Sullivan

stated a case for the opinion of this Court in relation to certain points of law which will be set out below.

2. Judge O’Sullivan was hearing appeals from the District Court and there came before him the appeal of the defendant, Frank Ennis,

from his conviction on the 14th February, 2006, for an offence contrary to s.49 (4) and (6) (a) of the Road Traffic Act, 1961 as

inserted by s.10 of the Road Traffic Act, 1994 and as amended by s.23 of the Road Traffic Act, 2002.

3. In the Circuit Court, according to the case stated and signed by the learned Circuit Judge, the evidence on the hearing of the

appeal followed the familiar pattern of evidence in breath/alcohol cases. That is to say, the evidence was not directed at establishing

that the defendant was unfit to drive a mechanically propelled vehicle by reason of drunkenness, but rather that he did in fact drive a

car 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 in [his] breath exceeded a concentration of thirty-five micrograms per hundred millilitres of breath”.

4. Accordingly, the proofs required of the prosecution were: that the accused was driving a car in a public place at a particular time;

that he had been lawfully arrested under a relevant section of the Road Traffic Acts, had been brought to a garda station; that a

lawful demand to provide a specimen of his breath had been made of him pursuant to s.13 of the Road Traffic Act, 1994; that the

specimen was duly taken from him within the relevant time; and that the machine used to take the specimen had produced a “duly

completed statement” taken in accordance with the Road Traffic Act, 1994 (s.17) Regulations, 1999 and that this “duly completed

statement” indicates a concentration of alcohol in the breath greater than the permitted level. Proof of this latter matter may be

adduced by means of a “statement” by virtue of the provisions of s.21 of the Road Traffic Act, 1994. It is convenient to set out the

provisions of s.21(1) at this stage:

“A duly completed statement purporting to have been supplied under s.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 s.17(2) of such statement.” (Emphasis

added)

5. The effect of this is that the concentration of alcohol in the defendant’s breath may be proved by a “duly completed statement”

produced by the machine which conducts the analysis and permits the inputting of information in any particular case by a member of

the gardaí. The subsection just quoted also provides a presumption in favour of the prosecution in relation to the due performance of

the obligations of a member of An Garda Síochána in relation to the taking of an evidential breath specimen.

6. Those obligations are contained in the Regulations referred to above, statutory instrument 326 of 1999, and will be, so far as

relevant, set out below. The significance of compliance with these regulations is that it is only “a duly completed statement” which

has the evidential effect mentioned in the subsection. This ability to prove the central fact of the case by certificate is a statutory

innovation which greatly favours the prosecution.

7. For present purposes the relevant parts of the Regulations mentioned are Articles 4 and 5 which provide as follows:

“(4) The statements to be produced, pursuant to s.17 of the Act of 1994, shall be in the form set out in the schedule to

these Regulations.

(5) For the purpose of completing the statements referred to in Article 4 the member of the Garda Síochána who

required the arrested person to provide two specimens of breath shall:

(a) Prior to the provision of the specimens input the following information into the apparatus referred to in s.13(1)

of the Act of 1994 -

(i) the name and address of the person providing the specimens,

(ii) the section of the Road Traffic Act, 1961, which it is alleged the person contravened,

(iii) his or her name and number and

(b) Following the automatic production of the statements by the apparatus, sign the said statements.” (Emphasis

supplied)

8. There are four things which require to be noted about Regulation 5:

“(a) It requires a garda to input the Section of the Road Traffic Act, 1961 which it is alleged ‘the person contravened’ into

the analysing machine.

(b) The garda who is to do this is ‘the member of the Garda Siochána who required the arrested person to provide two

specimens of breath’.

(c) The inputting is to be done ‘prior to the provisions of the specimens’ i.e. between the requirement and compliance

with it and

(d) The inputting of the information mentioned, and certain other information, is to be done ‘for the purpose of completing

the statements’.”

Relevant facts.

9. Only certain of the facts set out in the case stated are relevant and need be recapitulated here. There was evidence that, on the

relevant date, the defendant had been accosted by a member of the Garda Síochána while he was driving a car in a public place in

Terenure, Dublin. As a result of observations made by the guard the defendant was arrested. In relation to this arrest the learned

Circuit Judge found as follows:

“I was not satisfied that at the time of the arrest Garda Rowan specifically said to the accused ‘I am arresting you under

s.49(8) of the Road Traffic Act’. I was satisfied that it was her intention to rely upon the powers given to her under

s.49(8) of the Road Traffic Act to effect an arrest but she did not in fact invoke the statute at the time of the arrest.”

10. There was further uncontested evidence that the defendant was brought to a garda station where another guard subsequently

made a demand of him for the production of a specimen of breath. This was done pursuant to the power conferred by s.13 of the

Road Traffic Act, 1994 which provides as follows:

“(1) Where a person is arrested under s.49(8) or 50(10) of the principal Act or s.12(3), or where a person is arrested

under s.53(6), 106(3A) or s.112(6) of the principal Act and a member of the Garda Síochána is of opinion that the person

has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Station, at his discretion, through either or

both of the following -

(a) Require the person to provide, by exhaling into an apparatus for the purpose of determining the concentration of

alcohol in the breath, two specimens of his breath, and may indicate the manner in which he is to comply with the

requirement,

(b) [irrelevant]

11. It thus appears that the power to demand an evidential breath specimen depends on the person of whom the demand is made

having been arrested under a specific Section, and not otherwise.

12. There was evidence in the present case that the defendant provided the specimens as he was required by law to do. This was

the evidence of a Garda Dooley who produced a s.17 statement in Court. This statement was the subject of objection by the defence

with the result that, according to the case stated:

“A copy of this s.17 statement, the original of which was tendered but nor formally admitted into evidence by reason of

the issues raised as to compliance with Article 5 of the 1999 Regulations, is attached at annex B…”.

13. The case stated also records that the defence cross-examined Garda Dooley by asking him whether the account he had given in

evidence as to the procedures followed by him in connection with the taking of the specimens was a full and complete account of the

procedures followed by the witness. He replied “yes”.

Questions posed by the trial Judge.

14. The learned Circuit Judge sought the opinion of this Court on the following questions:

(a) Where a member of An Garda Síochána has in mind arresting a person under s.49(8) of the Road Traffic Act and then

arrests that person whilst explaining to the person that the arrest is for “drink driving” without however expressly invoking

either the Section or the Act under which the person is being arrested, can such an arrest be lawful?

(b) In relation to Article 5 of the 1999 “Section 17 Regulations” (SI 326 of 1999) was I, as trial Judge, entitled to hold

that the evidential burden resting on the accused by virtue of the provisions of s.21 of the 1994 Road Traffic Act, in

relation to the issues of compliance with the said Regulations, was capable of being discharged by the combination of

the direct evidence of Garda Dooley, his evidence in cross-examination, and the statutory presumptions.

(c) If the presumption under s.21 of the Road Traffic Act, 1994 is deemed to be rebutted, what is the effect of same on

the status of the s.17 statement? (Emphasis in original)

The first question.

15. The first question appears to me, in its terms, to be governed by the decision in this Court in D.P.P. v. Mooney [1992] IR 548. In

that case Blayney J. followed the well known English case of Christie v. Leachinsky [1947] AC 573 as to the requirements for a valid

arrest. I would also follow that case in its assertion of the general principle that a policeman arresting without a warrant “ must in

ordinary circumstances inform the person arrested of the true grounds of arrest”.

16. That judgment went on to state:

“The requirement that he should be so informed does not mean the technical or precise language need be used. The

matter is a matter of substance and turns on the elementary proposition that in this country a person is, prima facie,

entitled to his freedom and is only required to submit to restraints on his freedom when he knows in substance the reason

why it is claimed that the restraint should be imposed”.

17. Having cited the English case, Blayney J. continued:

“It is clear from the fourth of these propositions [that just quoted above] that a garda in making an arrest does not have

to use technical or precise language. Provided the arrested person knows in substance why he is being arrested the

arrest is valid. So telling the respondent that he was being arrested for an offence of drunk driving was a sufficient

communication of the reason for his arrest since in my opinion it could mean any of the three offences under the Section.

He told the respondent in substance why he was being arrested”.

18. The facts of that case, insofar as relevant, seem substantially similar to those of the present case. Accordingly I am bound to

hold, and would in any event hold, that the arrest was a lawful arrest.

19. But in the prosecution in the District Court, and in the Circuit Court on appeal, the State required to prove not merely that the

arrest was a lawful arrest, but also that the person of whom the requirement for a breath specimen was made, was a person arrested

under one of the specified Sections set out in s.13(1). Whether this has been established is a matter which the learned trial judge

may, if necessary, have to consider, and it is a different question to that raised in paragraph (a) of the case stated.

20. The authorities cited above establish that it is sufficient for a lawful arrest if the ground of the arrest is communicated in ordinary

language. That is sufficient to dispose of the question as to the legality of the arrest. But if a statutory scheme positively requires

that an arrest be under a specific Section or subsection, or one of a number of specific Sections, then it is manifest that proving the

legality of the arrest may or may not involve proof that the arrest took place under one of the specified Sections.

21. The answer to the first question, accordingly, is “Yes”.

The second question.

22. In D.P.P. v. Kemmy [1980] IR 164 it was stated by O’Higgins C.J. that:

“Where a statute provides for a particular form of proof or evidence on compliance with certain provisions, in my view it is

essential the precise statutory provisions be complied with. The Courts cannot accept something other than that which is

laid down by the statute, or overlook the absence of what the statute requires. To do so would be to trespass into the

legislative field. This applies to all statutory requirements; but it applies with greater general understanding to penal

statutes which create particular offences and then provide a particular method for their proof”.

23. Whether or not it has been established that the provisions of a statute or statutory instrument have in fact been complied with is

of course a matter for the learned trial judge. Normally, as in this case, the application to him in this regard will be made at the

conclusion of the State’s evidence. The learned trial judge is of course entitled to consider all of that evidence, including anything

which has transpired on cross-examination, or any part of the State’s evidence which may favour the defence. Equally, where there is

an evidential burden resting on the defendant, he may discharge that burden by relying on any part of the State’s evidence which is

favourable to him, or any answer or answers elicited in cross-examination.

24. I would also hold, following the decision of Lynch J. in O’Broinn v. Ruane [1989] ILRM 732, that a question in the very general form

posed by counsel in this case is quite admissible, for the reasons given by Lynch J.

25. I would therefore answer the second question in the affirmative: any evidential burden resting on the accused is indeed capable

of being discharged by a combination of the direct evidence of Garda Dooley, his evidence in cross-examination and any relevant

statutory presumptions. Whether or not the State’s evidence generally, or any part of it does in fact discharge any evidential burden

resting on the accused is of course a matter for the learned trial judge.

The third question.

26. I would answer the third question by saying that, if the presumption under s.21 is rebutted, then the s.17 statement will be

without evidential effect as regards any statement of fact or matter to which the rebuttal applies.

27. I would therefore remit the case to the learned trial judge to be considered in accordance with the foregoing findings.