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D.P.P. v. Dempsey [1997] IEHC 113 (2nd July, 1997)
THE
HIGH COURT
1996
No. 65ss
IN
THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AND IN THE MATTER
OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MAURICE SHERIDAN)
APPELLANT
AND
PETER
DEMPSEY
RESPONDENT
Judgment
of Mr. Justice Kinlen delivered the 2nd day of July, 1997
1. This
is a case stated by Judge Timothy H. Crowley sitting at Dun Laoghaire District
Court in the County of Dublin and the Application in writing of the Appellant,
Garda Maurice Sheridan through the D.P.P. for the opinion of the High Court as
to whether the learned Judge of the District Court was erroneous in points of
law or not.
2. The
case stated reads as follows:-
"1. At
the sitting of the District Court at Dun Laoghaire District Court on the 20th
April, 1995, the Respondent appeared before me to answer the accusation of the
Director of Public Prosecutions, at the suit of Garda Maurice Sheridan, that
the said Peter Dempsey on the 10th December 1994 at Ulverton Road, Dalkey,
within the Dublin Metropolitan District, being the user of a mechanically
propelled vehicle, registered number 7580 DI, did give to a member of the Garda
Siochana, namely Garda M. Sheridan an address which was misleading when such
address was demanded of him under
Section 107 of the
Road Traffic Act 1961, as
amended, by the said member of an Garda Siochana, contrary to
Section 107 of
the
Road Traffic Act 1961, as amended by
Section 3 of the
Road Traffic
(Amendment) Act 1984, and secondly, that the said Peter Dempsey on the 6th
November 1994 at Summerhill Parade within the Dublin Metropolitan District
drove a mechanically propelled vehicle in a public place while there was
present in his body a quantity of alcohol such that within three hours of so
driving the concentration of alcohol in his blood exceeded a concentration of
100 millilitres of alcohol per 100 millilitres of blood, contrary to Section 49
(2) and (4) (a) of the
Road Traffic Act 1961, as inserted by
Section 10 of the
Road Traffic (Amendment) Act 1978, as amended by
Section 3 of the
Road Traffic
(Amendment) Act 1984.
The
second charge was amended so as to read "Summerhill Road", instead of
"Summerhill Parade" and so as to insert the registered number of the
mechanically propelled vehicle as 7850 DI.
The
Prosecution was represented at the said hearing by Mr. David Rafferty,
Solicitor, of the Office of the Chief State Solicitor, and the Respondent was
represented by Mr. Ronald Lynam, Solicitor, of Partners at Law, Solicitors, 8
Adelaide Street, Dun Laoghaire, County Dublin.
2. The
facts proved or admitted were as follows:-
(a) Garda
Maurice Sheridan, a member of An Garda Siochana, stationed at Dun Laoghaire,
was on uniformed duty as observer in the Dun Laoghaire Patrol Car on the 6th
November 1994. While driving along Summerhill Road, a public place, at
approximately 9.23 p.m. he observed motor car 7580 DI driving in the middle of
the road towards Dun Laoghaire. He put on the blue light and signalled the
driver to stop. The driver did so. The driver got out. He was unsteady on
his feet. Garda Sheridan spoke with the driver who gave his name as Peter
Dempsey of 3 Martello Avenue. During his conversation with the Respondent,
Garda Sheridan noticed that there was a strong smell of intoxicating liquor
from his breath and his speech was slurred.
(b) Garda
Sheridan formed the opinion that the Respondent has consumed an intoxicant to
such an extent as to be incapable of having proper control of a mechanically
propelled vehicle in a public place. He told him this and that he was
arresting him under
Section 49(6) of the
Road Traffic Act 1961 as amended.
Garda Sheridan explained that the Respondent was being arrested for drunken
driving. The arrest took place at 9.25 p.m. and was for an offence under
Section 49(1), (2) or (3). He had the Respondent conveyed to Dun Laoghaire
Garda Station, arriving there at 9.30 p.m.
(c) Garda
Sheridan contacted Dr. Hooper at 9.32 p.m. and he arrived at the Station at
9.46 p.m. He brought the Doctor and the Defendant to the Doctor's Room at the
Station where he introduced the Doctor to the Defendant as the designated
registered medical practitioner and explained that he was the Garda Doctor.
(d) At
9.49 p.m. he required the Respondent, pursuant to
Section 13(1)(b) of the
Road
Traffic (Amendment) Act 1978 to permit the Doctor to take from him a specimen
of blood or at his option to provide for the Doctor a specimen of his urine.
He
warned the Respondent that to refuse or fail to comply with his requirements
was an offence and he outlined the penalties. At 9.50 p.m. the Respondent
opted for urine and he handed a sealed box marked "U" and sealed jug to the
Doctor. The Respondent was unable to provide a sample. Garda Sheridan gave
the Respondent the option against at 9.55 p.m. The Respondent then opted for
blood. The Respondent provided a sample of blood at 9.56 p.m. The provisions
of
Section 21 of the
Road Traffic (Amendment) Act 1978 were complied with. The
Respondent was released at 9.57 p.m.
(e) Garda
Sheridan had the specimen posted by registered post to the Medical Bureau of
Road Safety on the 7th November 1994 and he had a receipt from the Marine Road
Post office. On the 9th November 1994 he received a certificate from the
Bureau Certifying that the specimen in question had a concentration of 180
milligrams of alcohol per 100 millilitres of blood.
(f) On
the 25th November 1994 Garda Sheridan received a letter from the Medical Bureau
of Road Safety stating that they were unable to effect service of the
certificate on the Respondent.
On
the 10th December 1994 Garda Sheridan was on duty and observed motor car 7580
DI driving along Ulverton Road, Dalkey. He stopped the vehicle and demanded
the production by the driver of his driving licence and certificate of
Insurance. The driver had not got them with him and he gave his name as Peter
Dempsey of Ardbrugh Road, Dalkey. This was the same man that Garda Sheridan
had arrested for drunken driving on the 6th November 1994 at 9.25 p.m. Garda
Sheridan queried him about this address and he stated that he used Ardbrugh
Road as a business address. Garda Sheridan stated that he also mentioned a
Guest House. Garda Sheridan then said that the Respondent had given him a
misleading address and he arrested him for same.
(g) Garda
Sheridan brought the Respondent to Dun Laoghaire Station where the Respondent
informed him that the name and address given on the first occasion were
correct. He was charged on Dun Laoghaire Sheet 734/94 with the charges
referred to at paragraph 1 above. The Respondent was released on £100
cash bail and was remanded to Dun Laoghaire Court on the 16th January 1995 at
10.30 a.m. for hearing. Before being released Garda Sheridan served the
Respondent with his copy of the certificate relating to the offence contrary to
Section 49(2) of the
Road Traffic Act on the 6th November 1994.
(h) Garda
Sheridan confirmed that he was present when the Member in Charge at the Garda
Station was taking all of Mr. Dempsey's details and also confirmed that the
custody regulations 1987 had been complied with.
(i) Garda
Sheridan handed into Court the certificate of posting, the Doctor's certificate
and the Medical Bureau's certificate, which was examined by the Defence.
(j) In
cross-examination Garda Sheridan accepted that the Respondent had a hut at
Ardbrugh Road.
3. Further,
it was accepted that shortly after the 12th January 1995, Garda Sheridan
received a letter, dated the 12th January 1995, addressed to him at Dun
Laoghaire Garda Station from Ronald Lynam, Solicitor for the Respondent. This
letter, inter alia, requested Garda Sheridan to provide to Mr. Lynam all
statements of evidence and exhibits upon which the Prosecution proposed to
rely. It further stated that Mr. Lynam would be obliged if Garda Sheridan
would furnish him with copies of Custody Records applicable to the Prosecution.
Garda Sheridan did not comply with the requests set out in the letter and
indicated that he had sent this letter to the Chief State Solicitor's Office.
4. A
further letter of the 20th January 1995, addressed to the Chief State
Solicitor's Office was put to Garda Sheridan. Garda Sheridan stated that he
had not been aware of the existence or contents of that letter. This letter
referred to the Prosecution scheduled for hearing before Dun Laoghaire District
Court on the 3rd March following, indicating that Garda Sheridan had been
requested to provide copies of all statements of evidence and exhibits and
further that he had been requested to provide copies of the Custody Record, and
that letter expressly differentiated between the requests for the statements of
evidence and exhibits which Mr. Lynam, Solicitor, appeared to be aware were the
subject matter of a decision entitled "
D.P.P.
-v- Gary Doyle
"
and the copies of the Custody Records.
5. A
further letter dated the 10th February 1995 from Mr. Lynam, addressed to the
Chief State Solicitor, was then put to Garda Sheridan, who indicated that he
had not been made aware of that letter nor of its contents. This letter
constituted a reminder in respect of the letter of the 20th January and
appeared to have enclosed a copy of that letter for the information of the
Chief State Solicitor.
6. A
further letter was then put to Garda Sheridan, dated the 21st February 1995,
from the Chief State Solicitor to the Solicitor for the Respondent. That
letter referred to a date, 16th January 1995, when the matter had been listed
for mention in Dun Laoghaire District Court and it referred to a request by Mr.
Lynam to Mr. Daly, Solicitor, of the Office of the Chief State Solicitor, for
copies of relevant statements etc. and to the fact that Mr. Daly had refused to
provide same. A reference was then made to the failure to make any subsequent
application to Judge Kirby for the furnishing of the relevant statements etc.
The letter concluded by informing the Solicitor for the Respondent that the
Prosecution would not be furnishing him with copies of all items requested in
the letter of the 20th January 1995.
3. Copies
of the said letters are annexed to the within Case Stated and form part thereof.
4. Mr.
Rafferty, Solicitor, indicated upon enquiry that he did not require formal
proof of the said correspondence.
7. At
the close of the prosecution case it was submitted on behalf of the Respondent
that a specific request had been made for copies of all relevant custody
records in the case and that it has been specifically pointed out to the
Prosecution that such a request was separate from the not related to the
request for statements of evidence and exhibits. It was accepted by Mr. Lynam
on behalf of the Respondent that the case of
D.P.P.
-v- Gary Doyle
(1991) IR provided that in a prosecution such as that before me there was a
discretion in the Trial Judge to direct that copies of all statements and
exhibits be provided to a Defendant. Mr. Lynam relied upon Article 24(2) of
the
Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda
Siochana Stations) Regulations 1987 . He submitted, that the two letters
written to the Chief State Solicitor and the letter written to Garda Sheridan
had been met with a conscious and deliberate refusal to make any documentation
whatsoever available, including the matter to which he was entitled as right.
5. Mr.
Lynam referred me to the Judgment of Mr. Justice O'Hanlon, delivered on the 8th
February 1995, in the case of the
D.P.P.
-v- Eric Spratt
.
He submitted that there had been a deliberate refusal by the State to make the
custody records available, which had denied the Defence access to documentation
which was directly relevant to the prosecution of the offences before the Court
and materially affected the preparation of the defence case.
6. Mr.
Lynam also referred to the decision of the High Court in the
State
(Walshe) -v- Murphy
(1981) IR 275 and to other relevant decisions regarding a failure on the part
of the State to make available, upon request, a copy of the Medical Bureau's
Certificate.
7. He
submitted that the Court had a discretion to dismiss the matters, following the
authority of
D.P.P.
-v- Eric Spratt
.
He submitted, therefore, that the Court should dismiss the charge. He further
argued that where there had been a conscious and deliberate breach of the
Respondent's rights, the Application to Dismiss was even more compelling.
8. Mr.
Lynam's second submission related to the fact that the Respondent gave a blood
sample after opting for, but being unable to give a urine sample, and this
second submission was rejected by me.
8. In
reply, Mr. David Rafferty, Solicitor, argued that the letter from the Chief
State Solicitor's Office referred to material covered by the decision in
D.P.P.
-v- Gary Doyle
only. It had to be seen in context where the Defence had previously sought the
Gary Doyle material and had been refused same, in the conversation refer to in
the said letter. In addition that letter was dated the 21st February 1995, and
the Defence had done nothing since. The case had been listed in Court on the
3rd March and no application had been made to the Court for the documentation
in question. The Defence could have sought this material prior to the hearing.
9. Mr.
Rafferty also submitted that the cases referred to above by the Defence dealt
with the Bureau Certificates and Doctor's Certificates and not Custody Records.
10. Finally
it was submitted that any breach of the Regulations would have to be material
to justify a dismissal of the charges brought.
9. I
made the following further finding of fact:-
1 (1) The
Defence had made all proper and reasonable requests for a copy of the custody
records as per the correspondence submitted in evidence and that there was no
obligation on the Defence to make application to the Court for a document to
which it was entitled as a right.
(2) The
letter from the Chief State Solicitor, dated 21st February, 1995 to the
Solicitor for the Respondent, was a conscious and deliberate refusal on the
part of the State to make the custody records available to the Defence. This
was a fundamental breach of Article 24(2) of the
Criminal Justice Act 1984
(Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987.
10. I
was satisfied on the evidence that there was not only a breach of the Custody
Regulations but a conscious and deliberate breach and that as a consequence I
was entitled pursuant to the decision in the case of
D.P.P.
-v- Eric Spratt
to exercise my discretion in favour of the Defence. I was further satisfied
that if I were to convict the Defendant of the charges before me, such
conviction must be dependent upon there having been compliance with the basis
requirements of natural justice. I was satisfied that not only had there not
been compliance with the basic requirements of natural justice on the part of
the State but that the lack of compliance had been material and had been
brought about by a deliberate act or omission on the part of the Prosecution
and that as a consequence a conviction could not be sustained. In the light of
those circumstances I dismissed the charges before me.
11. The
Appellant herein, being dissatisfied with the said determination in point of
law, has requested me to state for the opinion of the High Court the following
question:
(1) Whether,
in light of the aforesaid findings in relation to the breach of
Criminal
Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations)
Regulations 1987, and/or the non compliance on the part of the State with the
basic requirements of natural justice which had occurred in the present case, I
was correct in law in holding that I was entitled to dismiss the charges
brought against the Respondent?
11. Dated
the 10th day of January, 1995.
_________________________
TIMOTHY
H. CROWLEY
JUDGE
OF THE DISTRICT COURT
."
12. Ms.
Adrienne Egan, Barrister at Law appeared on behalf of the State, made a written
and oral submission. The case was very fully argued before me by Ms. Egan for
the D.P.P. and Mr. McDonagh for Mr. Dempsey. In argument the following cases
were opened in addition to the cases mentioned in the Case Stated, namely,
Walshe
-v- D.J. O'Boachalla
,
1991, 1 I.R. 56,
The
State (O'Regan) -v- District Justice Plunkett
,
1984, I.L.R.M. 347,
Clune
-v- D.P.P
.,
1981, I.L.R.M. 17,
Sweeney
-v- District Judge Brophy
,
1993, I.R. 202,
Healy
-v- O'Donoghue
,
1976, I.R. p. 325 at 348. In the case of
Walshe
-v- District Justice O'Boachalla
,
1991, 1 I.R. 56, Blayney J. summarises the need and position which follows:-
"That
evidence obtained following a deliberate and conscientious breach of an accused
person's constitutional rights must be excluded only if it had been obtained as
a result of that breach. In the absence of a causative link between the breach
and the obtaining of evidence such evidence was admissible (
The
People (D.P.P.) -v- Healy
,
1992 I.R. 73) and (
The
People (D.P.P.) -v- Shaw
,
1982 I.R. 1, considered)."
13. If
I might quote from Gannon J. in
Clune
-v- D.P.P
.,
1981 I.L.R.M. p. 17 at p. 19:-
"These
applications raise very serious and important issues in relation to the powers
and functions of this Court. The arguments in support of them are founded
almost exclusively upon the duty, as alleged, of all Courts to respect and
apply the principles of justice and fairness in procedure adumbrated in In Re.
Haughey, 1971 I.R. 217 and in
The
State (Healy ) -v- O'Donoghue,
1976 I.R. 325 and the duty, as alleged, of this Court to ensure that such
procedure will be followed notwithstanding the absence of statutory requirement
or regulation in the District Court. The concept of guiding, directing,
controlling, supervising or correcting lay magistrates which might have been
inferred from proceedings of certiorari and prohibition and mandamus prior to
the establishment of the State is not appropriate to the Courts established
under our Constitution. The Courts have limited jurisdiction established by
legislation pursuant to constitutional authority in that behalf are not in any
sense subject to direction, control or supervision by the Superior Courts
established by the Constitution. The statutory Courts are 'inferior Courts' in
the sense only that the range of their jurisdiction is limited and defined by
legislation. The Superior Courts are 'superior' in the sense only that their
authority derives directly from the Constitution and not from the legislature.
They are constituted as one Court of unlimited jurisdiction and one of final
appeal. The High Court has not only invested but inherent authority to ensure
the administration of the law in accordance with the principles of justice and
the requirements of the Constitution. It has the capacity and authority to
hear appeals from the Courts of limited jurisdiction and also to remedy errors
of abuse or excessive jurisdiction by any of such 'inferior Courts'. Many of
the procedures which were appropriate to the circumstances when the inferior
Courts were administered by lay magistrates have been adapted and adopted in
relation to our District Courts now administered by fully competent and
qualified lawyers, whose independence as Judges, not only from the executive
but even from their judicial colleagues, must be respected. The Justice
sitting in the District Court has the sole and exclusive authority to control
and supervise the conduct of proceedings in his own Court within the limits of
the jurisdiction conferred upon him. His independence and authority is secure
in his freedom not only from pressures of a political executive nature but also
from purported intervention, direction or control by any Superior Court. If
he should be in error it is in the interests of the parties to the suit whether
the public or private individuals which require the error to be corrected."
14. There
is no doubt that in the present case the Justice acted within his jurisdiction.
15. The
question must be, did he make an error in the exercise of that jurisdiction
which would justify that it was so fundamental as to warrant an Order of
Certiorari, the granting of which amounted to an acquittal? Gannon J. in
The
State (Healy) -v- O'Donoghue
,
1976 I.R. p. 325 at the bottom of p. 335 states:-
"Among
the natural rights of an individual whose conduct is impugned and whose freedom
is put in jeopardy are the rights to be adequately informed of the nature and
substance of the accusation to have the matter tried in his presence by an
impartial and independent Court or arbitrator, to hear and test by examination
the evidence offered by or on behalf of his accuser, to be allowed to give or
to call evidence in his defence and to be heard in argument of submission
before judgment be given. By mentioning these I am not to be taken as giving a
complete summary, or as excluding other rights such as the right to reasonable
expedition and the right to have an opportunity for preparation of the defence.
The rights I have mentioned are such as would necessarily have a bearing on the
result of a trial. In my view they are rights which are anterior too and do
not merely derive from the Constitution but the duty to protect them is classed
upon the Courts by the Constitution."
16. In
the Supreme Court it is held that the provisions of Article 38 of the
Constitution in requiring a criminal trial to be conducted in due course of law
imports the requirement of a fair procedure which furnish an accused with an
adequate opportunity to defend himself against the charges made. The Solicitor
for the Respondent requested statements of evidence and exhibits upon which the
prosecution proposed to rely and also copies of the custody records applicable
to this prosecution. Garda Sheridan, the prosecuting officer, did not furnish
a copy of the custody records but sent the letter to the Chief State
Solicitor's office. The Solicitor sent to further letters to the Chief State
Solicitor. Finally, a letter was received by the Respondent's Solicitor on the
21st February, 1995 stating as follows:-
"The
writer was present in Dun Laoghaire Court on the 16th January, 1995 last when
you requested from him a copy of the relevant statements etc., and he declined
to furnish you with same. The writer noted that you did not subsequently make
an application to Judge Kirby for the furnishing of the relevant statements
etc. Accordingly, we will not be furnishing you with copies of all items
required in your letter of the 20th ult."
17. At
the close of the prosecution case, it was submitted that there had been a
conscious and deliberate refusal to make any documentation available to the
defence including a copy of the custody record to which the defence was
entitled as of right.
18. It
is conceded that the State were in breach of the custody regulations by not
producing a copy of the custody record upon request by the Solicitor for the
Respondent. Normal compliance of the custody regulations does not of itself
derive to entitlement on the part of the District Judge to dismiss the charge.
Gannon J. states:-
"The
phrase 'of itself' is obviously an important one in the construction of the
statutory provisions and I interpret the subsection as meaning that
non-observance of the regulations is not to bring about automatically the
exclusion from evidence of all that was done instead by the accused person who
is in custody.
It
appears to be left to the Court of trial to adjudicate in every case as to the
impact of the non-compliance which the regulations should have on the case for
the prosecution.
"
19. It
has been argued verbally by Ms. Egan that the District Judge ought to have
applied his mind to the question of what effect that breach had on the
Respondent and in particular his ability to meet the charge brought against
him. However, he was entitled to see that document and if his lawyers were
equipped with it, it might promote several lines of defence. The Court has not
seen the relevant custody record nor it is necessary for it to do so. It was
previously indicated that the High Court would be very slow to interfere with
the learned District Judge in the course of his jurisdiction. He has heard the
evidence; he has assessed it; there was evidence to support his findings; the
State admit they deprived the Accused of documents to which he was entitled.
The fact that an Order was not sought from Judge Kirby but in fact there is
nothing prejudicial with his defence and the relevant custody records are both
irrelevant. The learned District Judge has obviously given the case
considerable attention while another Judge might have come to a different
conclusion. He was well within his jurisdiction to come to the conclusion
which he did over the evidence produced before him. It is found that the State
had non-compliance with the basic requirements of natural justice. In his
discretion he was entitled to dismiss the charges brought against the
Respondent.
© 1997 Irish High Court
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