Court of Appeal dismissed appeal where missing procedural evidence was formal, not merits-based, and judge's witness recall was minor.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 31

Appeal No. 2014/499

[Article 64 Transfer]

Ryan P.

Finlay Geoghegan J.

Hogan J.

BETWEEN/

JAMES O’KEEFFE

APPLICANT/RESPONDENT

AND

DISTRICT JUDGE JOSEPH MANGAN

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS/RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered 21st day of May 2015

1. I have had the opportunity of reading in draft the judgment which has just been delivered by Ryan P. and I gratefully adopt his

summary of the facts and issues.

2. Two issues would appear to be central to this appeal. First, were the prosecution obliged to prove compliance with the

requirements of s. 18(2) of the Road Traffic Act 1994 (“the 1994 Act”)? Second, was the District Judge entitled of his own volition to

recall the prosecution witness, Garda Barriscale, to give evidence on this very issue after the prosecution case had closed? I propose

to consider these issues in turn.

The obligation to comply with s. 18(2) of the 1994 Act

3. Section 18 of the 1994 Act deals with the obligations imposed on members of An Garda Síochána and the designated doctor

following the taking of blood or urine specimens at a Garda station after an arrest on suspicion of committing the offence of drunk

driving under s. 49 of the Road Traffic Act 1961 (as amended). Section 18(1) of the 1994 Act requires the designated doctor to divide

the specimen in two and then “place each part in a container which he shall forthwith seal and complete the form prescribed for the

purposes of this section.”

4. Section 18(2) of the 1994 Act then provides that:

“Where a specimen of blood or urine of a person has been divided into 2 parts pursuant to sub-section (1), a member of

the Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating

that he may retain either of the containers.”

5. Section 18(3) of the 1994 Act then provides for the onwards transmission of the retained sample to the Medical Bureau of Road

Safety for the purposes of analysis. The Bureau’s statement as to the level of alcohol in the blood or urine is obviously a critical

feature in any subsequent prosecution under s. 49 of the 1961 Act should such materialise.

6. The obligation which was placed on the member of An Garda Síochána by s. 18(2) of the 1994 Act was obviously considered by the

Oireachtas to be an important safeguard which was designed to ensure that the arrested person was expressly informed of his right

to retain one of the split samples and, implicitly, the possibility of securing an independent test of the relevant blood or urine sample.

It must be recalled that s. 18 is a vital part of an overall procedure prescribed by statute whereby the prosecution of drunk driving

offences is facilitated through the admission of a statutory certificate as to alcohol levels in the blood or urine of the arrested person.

In effect, therefore, the 1994 Act allows for the admission by statute of the certificate of blood (or urine) alcohol limits issued by the

Medical Bureau, provided, of course, that the safeguards for the accused person prescribed by the Act have been substantially

complied with.

7. The fact that the Oireachtas, subsequent to the events which are at the heart of the present appeal, has had something a change

of heart and no longer considers that the requirement that the arrested person should be informed in writing of his or her right to

retain one of the samples is irrelevant to the issue under consideration in this appeal.

8. As it happens, s. 15(2) of the Road Traffic Act 2010 (“the 2010 Act”) now provides:

“(2) Where a specimen of blood or urine of a person has been divided into 2 parts under subsection (1), a member of the

Garda Síochána shall offer to the person one of the sealed containers and inform the person that he or she may retain

either of the containers.”

9. It will thus be seen that the obligation to inform the arrested person of his or her right to retain a sample for independent testing is

thus preserved. The only substantive change effected by s. 15(2) of the 2010 Act is that there is no longer an obligation to give a

statement to this effect in writing.

10. This appeal thus presents once again the age old problem of how a court should approach failure to comply with a mandatory

statutory provision, not least where, as here, there is probably no real prospect that the result would have been any different if the

accused had, in fact, been informed in writing of his entitlement.

11. The locus classicus on this issue is, of course, the Supreme Court’s decision in Monaghan UDC v Alf-a-Bet Promotions Ltd [1980]

I.L.R.M. 64. Here Henchy J., dealing with the issue of whether there had been sufficient compliance with the terms of the then

applicable planning regulations in a given case, articulated a general test in the following terms ([1980] I.L.R.M. 64, 69):-

"In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations,

nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de

minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as

necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must,

before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so

peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that

matters, the prescribed obligation has been substantially, and therefore adequately, complied with."

12. Viewed from that perspective, I find it hard to characterize that which had been prescribed by the Oireachtas in 1994 – and, as

we have noted, recently re-affirmed in 2010, albeit that the information must be conveyed orally and not (as heretofore) in writing –

as trivial or peripheral or insubstantial. The Oireachtas clearly sought to prescribe an important statutory protection for arrested

persons and this statutory requirement cannot be regarded as mere surplusage. Rather, it has been deemed by the Oireachtas to

represent an important protection for those persons who have been obliged by law to give a blood or urine sample. If it were thought

that the scope of these protections is thought to be burdensome or unnecessary, than arguments directed along these lines should

be addressed to the Oireachtas and not to the courts. As happened in 2010, the Oireachtas can elect, should it think fit, to vary or

otherwise alter the scope of these statutory protections, subject only, of course, to adherence to basic constitutional standards of

trial in due course of law and basic fairness of procedures, the protection of which is the solemn duty of the judicial branch to uphold.

13. This is not a question of the courts being difficult or seeking to place unnecessary obstacles in the way of the effective

prosecution of road traffic offences. It is rather a case of the judicial branch giving effect to the policy choices expressly enshrined in

legislation - including the safeguards provided for arrested persons – by that branch of government which is directly answerable to

the people in a democracy, namely, the Oireachtas. As I have indicated earlier, if it is thought that compliance with these safeguards

has proved to be excessively burdensome or that such compliance would frustrate the effective enforcement of the road traffic

legislation or that such safeguards are no longer necessary in practice, this would, in principle, at least, represent a policy choice to

be determined by the Oireachtas in accordance with Article 15.2.1 of the Constitution and not by an unelected judiciary.

14. It follows, therefore, that, proof of compliance with the requirements of s. 18(2) of the 1994 Act was an essential prosecution

proof. It is true that s. 18(4) of the 1994 Act creates a presumption that there was such compliance in the absence of proof to the

contrary. But where – as here – the key prosecution witness is called upon in cross-examination to demonstrate compliance with the

requirements of s. 18(2) of the 1994 Act, it was necessary for her to show that she had given the accused person the necessary

written form in the manner which the sub-section required.

15. This is, in effect, the conclusion which Kelly J. reached in McCarron v. Groarke, High Court, 4th April 2000, where he held that

failure to comply with the requirements of s. 18(2) of the 1994 Act was fatal to the validity of the ensuring conviction:

“It is not a flaw of no significance or one which could not work an injustice. It is not in accordance with the purpose and

objects of the legislation to fail to provide the statement in writing to the accused. In fact, it is in discord with the

purpose and object of the legislation.”

16. I entirely agree with the conclusions of Kelly J. and the reasons which he gave for them.

17. Indeed, in Verdon v. Downes, Supreme Court, 29th July 1976 the Supreme Court had previously arrived at a similar conclusion in

respect of an earlier version of those procedures which had been prescribed by Article 13 of the Road Traffic Act 1968 (Part V)

Regulations 1969. Those procedures were designed to ensure that the “appropriate person” at the Medical Bureau of Road Safety

opened only one sample at a time, thus eliminating the possibility of confusing two specimens. The Supreme Court held that

compliance with these procedures was a mandatory prerequisite to the admission in evidence of the statutory certificate emanating

from the Bureau showing the level of concentration of alcohol in either the blood or urine sample as the case might be. Griffin J.

stated that:

“In my opinion, in a prosecution under s. 49 or s. 50 of the 1961 Act, the prosecution must prove that the procedures laid

down by Article 13 have been complied with ……Although of a formal nature, the proof is nevertheless a necessary one.”

18. There may, of course, be cases where the failure to comply with the prescribed statutory requirements could be regarded as

essentially de minimis. The Supreme Court’s decision in another case involving a prosecution under s. 49 of the 1961 Act, Director of

Public Prosecutions v. Kemmy [1980] I.R. 160, may be regarded as one such example. In that case a copy – rather than the original –

of the form completed by the medical practitioner had been forwarded to the Medical Bureau of Road Safety. A majority of the Court

concluded that this amounted to sufficient compliance with the statutory provisions.

19. The Supreme Court’s decision in Director of Public Prosecutions v. Somers [1999] 1 I.R. 115 may also be regarded as being in this

vein. Here the designated doctor in the course of completing the statutory form omitted to state whether the sample taken was blood

or urine. Since, however, the doctor had deleted the reference to urine in another part of the form, there could be no doubt but the

form had conveyed the information that the sample taken was a blood sample. O’Flaherty J. described this as ([1999] 1 I.R. 115, 119)

“a tiny flaw…which flaw is of no significance and cannot possibly work an injustice to an accused.”

20. It is true that the defence accepted that the accused had, in fact, been given the sample by Garda Barriscale. It is clear from s.

18(2) of the 1994 Act, however, that this in itself is not enough: the Oireachtas sought to ensure that the accused was informed in

writing of his right to retain the sample, presumably so that he could have his sample independently tested, should he so wish. Absent

of such proof, there was non-compliance in a material respect with that which the Oireachtas had deemed essential. Such non-

compliance could not be regarded as peripheral or non-substantial in the sense described by Henchy J. in Alf-a-Bet Promotions or de

minimis in the sense envisaged by cases such as Kemmy or Somers.

Whether the prosecution witness could properly have been re-called by the trial judge of his own volition

21. We can next turn to the second question, namely, whether the judge could legitimately have re-called the prosecution witness

with a view to ascertaining whether she had, in fact, given the accused the written statement regarding the retained sample in the

manner required by s. 18(2) of the 1994 Act. It is not disputed that the District Judge directly asked Garda Barriscale whether she

had offered the accused the written statement regarding the right to have the retained sample independently tested to which she

had given an affirmative reply. The objection is that this question was posed – and the answer given - following an application for a

direction by the appellant’s solicitor, Mr. Herbert, on the grounds that the only prosecution witness, Garda Barriscale, had not supplied

a necessary proof.

22. It is clear from the case-law that while a judge retains such a power of re-call, it is a power to be exercised “sparingly”, especial

in criminal matters, “as otherwise it may appear that he is descending into arena and becoming partisan”: Magee v. O’Dea [1994] 1

I.R. 500, 507, per Flood J.

23. There are undoubtedly cases where the exercise by the court of its power to re-call witnesses would be improper. A good

example is supplied by the decision of Flood J. in Magee v. O’Dea [1994] 1 I.R. 500, a case to which I will later return. Another

example in a similar vein is provided by the judgment of Morris J. in Dineen v. Delap [1994] 2 I.R. 228, where the judge had made it

clear from the outset that he was prepared to allow the prosecution witnesses to be recalled in the event that it transpired that

there were any lacunae in the prosecution’s technical proofs.

24. It is also clear from another line of case-law that the court may allow – and perhaps even ought to allow - the prosecution

witness to be re-called where the missing proof is a purely formal one which is not “a matter of substance going to the question of

the defendant’s guilt in breaching the prohibition”: Attorney General (Corbett) v. Halford [1976] I.R. 318, 320, per Henchy J. But like

Ó’Caoimh J. in Bates v. Brady [2003] 4 I.R. 111, 120 I confess that I have not found “it entirely clear where the line is to be drawn.”

As Henchy J. himself had earlier acknowledged in The People (Attorney General) v. Griffin [1974] I.R. 416, 420, the “boundary

between what is and what is not a technicality is hopelessly blurred.” Even a perfunctory review of the case-law shows how the

application of this test is far from straight forward.

25. In Griffin Henchy J. indicated that it would have been open to the trial judge to allow the prosecution to prove the making of a

statutory instrument notwithstanding that the prosecution had already closed its case. A similar approach was taken by the Supreme

Court in Attorney General (Corbett) v. Halford [1976] I.R. 318. In that case an apprentice jockey who had travelled to Ireland from

the United Kingdom at a time when there had an outbreak of a virulent animal disease in the latter country had been convicted of a

breach of a prohibition of movement order which had been served on him by a veterinary inspector under Article 19 of the Foot and

Mouth Disease Order 1956 (S.I. No. 324 of 1956). The accused appealed his conviction to the Circuit Court which stated a case for

the opinion of the Supreme Court, the essential question being whether for the purposes of the offence the inspector was required to

give evidence of his belief that the accused had travelled from a place which may have been attended with the risk of infection from

the disease.

26. The Supreme Court agreed that such evidence was necessary, but all three members of the Court were of the view that as this

was purely formal evidence, it was now open to the prosecution to apply to have the evidence admitted. As Kenny J. stated ([1976]

I.R. 318, 324):

“The prosecution have closed their case and the question whether that evidence may now be given was not discussed in

argument. The decision of this Court in Attorney General v. McTiernan establishes that, in a prosecution in the District

Court, the District Justice may allow further evidence of formal matters to be given after the State's case has been

closed. He has a discretion in the matter; but he should not allow further evidence to be given if it relates to what Lord

Goddard has called ‘the merits’ (Price v. Humphries [1958] 2 Q.B. 353) while he should allow it if it relates to procedure

only. I think that proof that the veterinary inspector who signed the notice had reasonable grounds for his belief and that

he believed the matters I have mentioned was a matter of procedure only and that, if the prosecution wish to give it, the

Circuit Court judge should allow this evidence to be given when the matter is re-listed before him: Royal v. Prescott

Clarke [1966] 1 W.L.R. 788.”

27. The Supreme Court had previously adopted a similar approach in Attorney General v. McTiernan (1951) 87 I.L.T.R. 162. In that

case the District Judge had refused to allow the prosecution to supply documentary evidence following the close of its case to show

that the Revenue Commissioners had elected to claim a particular penalty. The Supreme Court held that this ruling was erroneous and

that for so long as the case was still at hearing the judge should have received all appropriate evidence.

28. It should also be noted that this issue was also addressed in passing by the Supreme Court in Verdon, a case which was decided

in July 1976 a few months after the earlier decision in Corbett. As we have already noted, Griffin J. held that under the terms of the

(then extant) 1969 Regulations it was essential that the “appropriate person” should give evidence of what had happened when the

sample arrived at the Medical Bureau. In that case, however, this necessary proof had not been given. Could, then, the District Judge

arrange to have the prosecution give such evidence after the prosecution case had closed?

29. In the words of Griffin J.:

“Although of a formal nature, the proof is nevertheless a necessary one. In the normal way, it might reasonably be

expected that a District Justice would adjourn a case so that the necessary evidence might be given. In this case,

however, the solicitor for the prosecution was alive to the difficulty which would arise in the absence of a witness from

the Bureau, and at the commencement of the hearing indicated that he might seek an adjournment to produce a witness

from the Bureau. In the event, he closed his case without either calling the appropriate person from the Bureau to give

evidence, or seeking an adjournment for that purpose, and he did not apply for the adjournment until after the absence of

this proof had been argued on the application of counsel for the defendant to have the complaint dismissed. The District

Justice had a discretion to allow the adjournment for that purpose (see Attorney General (Corbett) v. Halford [1976] I.R.

318 and the cases therein referred to). However, he exercised that discretion in refusing the adjournment. Having done

so, he was correct in law in dismissing the complaint and the question put by the District Justice in the case should be

answered accordingly.”

30. What is clear from Verdon is that the Court regarded the proof in question as a purely formal proof. It is true that this passage is

strictly obiter, since the Court was addressing the situation of what might have – but which did not, in fact – happen. It nonetheless

provides useful guidance on the application of the formal evidence/merits distinction in the context of a prosecution under s. 49 of

the 1961 Act.

31. By contrast, in Magee the issue was whether the applicant was, in fact, the person described in the extradition warrant. Both

sides were legally represented in the District Court in what was a difficult and sensitive extradition case. Flood J. found that at the

close of the prosecution case the District Judge was unsure whether the plaintiff’s identity – which was the principal issue raised

during the extradition hearing - had been established to his satisfaction. The District Judge had then retired and later returned to

court. He then spontaneously recalled the prosecution witness and questioned him on the identity issue before the proceeding to

order the extradition of the plaintiff.

32. Flood J. found ([1994] 1 I.R. 500, 506) that:

“...the District Court judge did not, prior to re-examining [the State witness], advise the plaintiff’s solicitor or the State

solicitor of the precise nature of what he intended to do and seek submissions in the context of his expressed intentions.”

33. Flood J. then stated ([1994] 1 I.R. 500, 507-508):

“…the District Court Judge at the conclusion of the evidence was not satisfied on the question of identity and, without

reference to any participant, returned to court, recalled evidence on identification and appears to have filled in any

lacunae that existed in the evidence.

It seems to me that the speed with which the matter was dealt with, the absence of any attempt on the judge’s part to

ensure that all valid considerations could be given to various aspects of the matter by the defence solicitor and his action

in failing to advise, inter alia, the plaintiff’s solicitor of his intention to recall evidence of identity, all appear to me to

amount to unfair procedures in a matter where strict proof is required.”

34. Viewed thus, this appears to be a case where the recall of the witness was regarded as a breach of fair procedures inasmuch as

the judge gave the impression that he was, in fact, descending into the arena. There was, as such, no suggestion that the recall of

the witness to give evidence of identity would in itself be improper, but it must be acknowledged that the case may not have been

argued on this basis.

35. In Bates v. Brady [2003] 4 I.R. 411 Ó’Caoimh J. addressed the question of recalling a witness the context of a public order

prosecution under s. 8(2) of the Criminal Justice (Public Order) Act 1994. An essential proof of the offence was that the alleged

offender be warned by a member of An Garda Siochána that if he failed to comply with the requirement, he would be committing a

criminal offence and that had not been done. The applicant sought to quash the convictions on the ground that the District Court had

erred in recalling the prosecution Garda to give evidence of this essential missing proof. Ó’Caoimh J. held that this was a matter going

to the merits ([2003] 4 I.R. 111, 120):

“It is clear that unless it could be shown that the accused was given the warning or otherwise knew that failing to comply

would constitute a criminal offence, the offence was not committed. On this basis I conclude that the evidence in

question related to the merits and on this basis alone, I am disposed to grant to the applicant the order of certiorari

which he seeks.”

36. The distinction between formal evidence and evidence going to the merits is admittedly not always straightforward or easy to

apply. This is especially the case where, as here, the prosecution for the offence of drunk driving essentially rests on the

presentation of various technical proofs. I find myself nonetheless driven to the conclusion that the missing evidence in the present

case fell into the former category. Unlike the decision in Bates, the missing evidence did not relate to the offence itself, but rather to

an essential precursor to the admissibility of an evidential certificate in accordance with a particular statutorily prescribed procedure.

It is true that this prosecution rested or fell on the admissibility of that certificate. It is also true that compliance with the

requirements of s. 18(2) of the 1994 Act was of importance precisely because that this was what the Oireachtas envisaged if,

indeed, the certificate was to be subsequently admitted in evidence. Yet, as signalled by the (admittedly obiter) observations of

Griffin J. in Verdon, this all points to the conclusion that the missing evidence relates to a formal proof which does not go to the

underlying merits in the sense just described.

Fair procedures

37. There remains the question of fair procedures. As in Magee there may be circumstances where the spontaneous recall of the

witness by the judge may give the impression that the judge has descended into the arena and be seen to have taken sides between

the prosecution and the defence. This is especially so where the judge (as here) takes it upon himself to address this question in

response to a specific submission from the defence solicitor after the conclusion of the prosecution case.

38. Judged from the affidavits filed by Mr. Herbert and Garda Barriscale, it would seem that Garda Barriscale had remained sitting in

the witness box following this dialogue between the judge and Mr. Herbert. Certainly, the judge did not invite submissions from the

parties as to whether he should seek the formal re-call of Garda Barriscale for the purpose of eliciting an answer to the question

which had just been raised.

39. In an ideal world, the judge should perhaps have invited Garda Barriscale to resume her seat as witness and invited submissions

from the parties (namely, the prosecuting Inspector and Mr. Herbert) on that question prior to making any formal decision to recall

Garda Barriscale for this purpose. Not without some misgivings, however, I consider that, given the pressures of business and the

slightly less formal atmosphere of the District Court, it would be unduly prescriptive – perhaps even formalistic - to require the District

Court to follow these exacting standards of formal procedure and propriety in every single case.

40. In these circumstances, I consider that while there may have been an inadvertent departure from appropriate court procedures, it

was nonetheless a minor departure which caused no real injustice to this appellant.

Conclusions

41. It follows, therefore, that, in my view, the appeal should be dismissed.