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Cite as: [2002] IEHC 81

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D.P.P. v. Cliffford [2002] IEHC 81 (22 July 2002)
    [2001 N. 2085 SS]
    - and -
    Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 22nd day of July 2002.
    1.      This is an appeal by way of case stated from a decision of Joseph Mangan, a judge of the District Court assigned to District No. 16. The accused was prosecuted with a drink driving offence contrary to s. 49 (3) and (6) (a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994.
    2.      The case came before the District Court on 19 October 2000 at Newbridge, County Kildare when the appellant (hereinafter referred to as ‘the director’) was represented by Inspector Sean Lavin of an garda Síochána and the accused was represented by Mr. Conal Boyce, Solicitor of Boyce, Burns & Co., Solicitors of Newbridge, County Kildare.
    3.      It appears that when the case against the accused was called that garda Damien Anderson was called to give evidence for the prosecution. When he went to the witness box he had in his possession the prosecution file in the case and his notebook. He commenced to give evidence and, after commencing to give evidence of observing the car in question being driven at the place in question on the date in question, he was asked by Mr. Boyce what he was reading from. He immediately stated that he was reading from his garda notebook and showed it to Mr. Boyce. He was asked by Inspector Lavin if his notes were made contemporaneously with the events on the night of the arrest of the accused and he answered in the affirmative. Judge Mangan then told the witness that he had not sought the court’s permission to refer to his notes and the witness then asked could he refer to his notes. The judge replied that it was late to make such an application as he had already given crucial evidence.
    4.      While Judge Mangan asked the judge if he had an application to make he indicated that he had a point to raise later in regard to the registration of the vehicle and that the garda was aware of the point. Judge Mangan, then without being so requested, indicated that the accused was entitled to a dismissal on the ground that garda Anderson had given evidence from his notes without the permission of the court having been first obtained as a result of which Mr. Boyce asked to have the charge dismissed to which application Judge Mangan consented.
    5.      The opinion of this court is requested as to whether the learned judge of the District Court was correct in law in his decision to dismiss the charge against the accused in the circumstances.
    6.      Mr. Anthony M. Collins, counsel for the appellant, relies upon the decision of Gannon J. in the case of Director of Public Prosecutions v. McCutcheon [1986] I.L.R.M. 433 which concerned a prosecution contrary to s. 4 (4) of the Health (Family Planning) Act, 1947 and the fact that evidence was given by a garda sergeant of having entered the defendant’s premises at which point objection was taken that unless an order made by the Minister for Health pursuant to s. 96 (1) of the Health Act, 1947 was produced, his presence on the premises was unlawful and his evidence was thereby inadmissible. The District Justice then proceeded to dismiss the charge against the defendant. On appeal by way of case stated taken by the Director it was held by the High Court that the decision of the District Court was wrong in law. The issues raised were whether the evidence obtained in the circumstances was inadmissible and whether the charge should in the circumstances have been dismissed. In the course of his judgment Gannon J. observed, inter alia, at p. 437 of the report:
    “The effect of the ruling by the District Justice was that a person who observed the activity constituting the commission of an offence, who heard what was said and saw what was done in his presence, who was a participant in the activity, was not allowed to give evidence of these matters only because his presence at the place was unauthorised and the fact that it was unauthorised was known to him and was suppressed or disguised by him.”
    7.      Gannon J. referred to the decision of the Supreme Court in the case of The People (Attorney General) v. O’Brien [1965] I.R. 142 in which Walsh J. and Kingsmill-Moore J. addressed the issue of the admissibility of illegally obtained evidence. He also referred to the opinion of Lord Scarman in R. v. Sang [1980] AC 402 in which he stated, inter alia, that the law, not the judge’s discretion, determines what is admissible evidence and what defences are available to the accused. He also indicated that the judge may not by the exercise of his discretion to exclude admissible evidence secure to the accused the benefit of a defence unknown to the law. In the course of his opinion Scarman L.J. observed at p. 456 of the report that magistrates would be wise not to rule until the evidence is tendered and objection taken. Gannon J. observed that this is a reference to a trial judge who, before commencing the trial with a jury, permitted and heard an application to rule on admissibility of evidence on a statement of what evidence was intended to be given.
    8.      Scarman L.J. continued:
    “They must wait and see what is tendered; and only then, if objection be taken, rule. When asked to rule, they should bear in mind that it is their duty to have regard to legally admissible evidence, unless in their judgment the use of the evidence would make the trial unfair. The test of unfairness is not that of a game; it is whether in the light of the considerations to which I have referred, the evidence, if admitted, would undermine the justice of the trial. Any closer definition would fetter the sense of justice, upon which in the last resort all judges have to rely: but any extension of the discretion, such as occurred in R. v. Ameer and Lucas [1977] Crim. L.R. 104 - to which my noble and learned friends, Lord Diplock and Viscount Dilhorne, have referred with disapproval - would also undermine the justice of the trial. For the conviction of the guilty is a public interest, as is the acquittal of the innocent. In a just society both are needed.”
    9.      Gannon J. having cited the above statement of the law with approval, stated as follows at p. 440 of the report:
    “The District Justice upon the trial of a summary offence has not the opportunity which a judge presiding over a trial by jury has of considering in the absence of a jury the evidence to which objection is taken. He has to determine questions of fact and rule on legal submissions as to the admissibility of the evidence relative to the charge. His position is analogous to that of the judges of the Special Court. If circumstances arise requiring the exercise of his discretion as to whether or not to admit relevant probative evidence he must be sufficiently informed of the nature and substance of the intended evidence to put its probative value in the balance of fair trial in the public interest as against that of prejudice or unfairness. To exercise his discretion in a judicial manner he must find as a fact that the circumstances requiring the exercise of such discretion have arisen, and make the enquiry and assessment of the intended evidence in a judicial manner.”
    10.      The case stated before me does not suggest that any such assessment was made. However, it should be said that in reality this is not a case about the reception or otherwise of illegally obtained evidence. There is no suggestion whatsoever that the evidence was illegally obtained. What is in issue is whether the learned judge of the District Court was entitled to exclude the evidence of a garda in circumstances where the evidence before the court showed that the same was supported by notes made contemporaneously with the events the subject matter of the evidence, albeit in circumstances where no prior application was made the presiding judge for permission to refer to the note book.
    11.      In the first place it is clear that a witness may refer to a contemporaneous note to refresh his memory in circumstances which include the fact that the note in question was made by the witness. It may in fact be the case that in reality the garda was not actually refreshing his memory as opposed to swearing the accuracy of the facts recorded on the faith of a document (the note in the garda note book).
    12.      Cross on evidence quotes Hayes J. in a celebrated Irish case of Lord Talbot de Malahide v. Cussack (1864) 17 I.C.L.R. 213 at p. 220 where he said in reference to the expression ‘refreshing a witnesses memory’:
    “that is a very inaccurate expression; because in nine cases out of ten the witness’s memory is not at all refreshed; he looks at it [the document] again and again; and he recollects nothing of the transaction; but, seeing that it is in his own handwriting, he gives credit to the truth and accuracy of his habits, and though his memory is a perfect blank, he nevertheless undertakes to swear to the accuracy of his notes”.
    13.      I am satisfied that the facts as outlined in the case stated herein suggest that garda Anderson was entitled to refer to his notes as a matter of law and that this was not a matter in which the learned judge of the District Court had a discretion. I am satisfied that strictly speaking the garda should have indicated that he wished to refer to his notes and if necessary these could have been inspected by the accused’s solicitor and the learned judge. It is clear that as a judge sitting without a jury, even if a judge has an application made late, he is in a position to exclude certain evidence if inadmissible. In the instant case, the time when the fact that garda Anderson was referring to his note book was immaterial to the fact that he was entitled to refer to same to refresh his memory. I am satisfied that the learned judge erred in law in stating as he says that he told Mr. Boyce that his client was entitled to a dismissal on the ground that garda Anderson had given evidence from his notes without the permission of the court having been first obtained. I am satisfied that the learned judge did not in any event address what were the requirements of justice in the particular circumstances. Whether there was an obligation on the garda to produce his notebook depends on a fine distinction of law. In any event the notebook was produced in the instant case and nothing turns on this fact. I am satisfied that on the facts before me the garda was entitled to refresh his memory by reference to a contemporaneous note made in his note book and that the learned judge erred in law in treating as inadmissible the evidence of the garda on the basis that he had not sought the court’s permission to do what he did in advance of referring to his notes. I am satisfied that in proceeding to dismiss the case in these circumstances the learned judge erred in law in dismissing the charge against the accused. I will answer the question posed in the case stated in the negative.

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