S50 Sweeney -v- District Judge Fahy [2014] IESC 50 (31 July 2014)

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Cite as: [2014] IESC 50

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Judgment Title: Sweeney -v- District Judge Fahy

Neutral Citation: [2014] IESC 50

Supreme Court Record Number: 285/09

High Court Record Number: 2008 237 JR

Date of Delivery: 31/07/2014

Court: Supreme Court

Composition of Court: McKechnie J., Clarke J., Dunne J.

Judgment by: Clarke J.
Judgment by: McKechnie J.

Status of Judgment: Approved



THE SUPREME COURT
[Appeal No: 285/2009]

McKechnie J.
Clarke J.
Dunne J.
      Between/
Michael Sweeney
Applicant/Appellant
and

District Judge Fahy

Respondent
and

The Director of Public Prosecutions

Notice Party/Respondent

Judgment of Mr. Justice Clarke delivered the 31st July, 2014.

1. Introduction
1.1 This case involves a challenge to a conviction for driving while under the influence of a drug. The case has a lengthy history. It will be necessary to record at least some of that history so as to help identify the issues which remain for this Court to decide. However, there is a sense in which each of the points now relied on on behalf of the applicant/appellant ("Mr. Sweeney") stem, at least indirectly, from the fact that he was originally arrested on suspicion of drunk driving, received an initial certificate from the Medical Bureau of Road Safety ("the Bureau") indicating that there was a zero concentration of alcohol found but subsequently (over 13 weeks after the alleged offence) received a second certificate which indicated the presence of "cocaine class".

1.2 When charged before the District Court, a number of points were made on Mr. Sweeney's behalf to which reference will need to be made in due course. Having been convicted Mr. Sweeney sought to bring judicial review proceedings before the High Court. At least to some extent, different points were made on that judicial review application to those which had been urged on the respondent District Judge before whom Mr. Sweeney was tried. The High Court (O'Keeffe J.) dismissed the judicial review proceedings (Sweeney v Judge Fahy [2009] IEHC 212). Mr. Sweeney has appealed to this Court against that dismissal. Not all of the points made before the High Court were canvassed in the notice of appeal filed on his behalf.

1.3 As matters developed on the appeal, three points were relied on. First, it was said that Mr. Sweeney was entitled to consider himself exonerated of the offence for which he had been arrested when he received a certificate showing no concentration of alcohol. On that basis, he asserted before the High Court that he had discarded the second sample taken from him on the night of the alleged offence (which sample was, in accordance with the statute, given to him) on the basis of his view that he would not be charged. It is said that Mr. Sweeney was prejudiced in his defence by the fact that a second, and later, certificate, concerning the presence of cocaine, was issued after that time. Second, it is said that the second certificate was, in any event, late and did not comply with the statutory requirement that it be issued as soon as practicable. Third, and finally, it was argued that there was no evidence before the trial judge to enable a finding to be made that Mr. Sweeney was incapable of driving by virtue of the presence of the drug concerned. In that context, it is important to distinguish between a drug driving case and the majority of drink driving prosecutions which relate to an allegation of driving with a concentration of alcohol above the permitted threshold. In such cases, a person commits an offence simply by driving with a concentration of alcohol above the permitted level. No evidence of incapacity is, therefore, required. However, there is no equivalent threshold requirement in respect of drugs and it does, therefore, remain the case that the mere presence of a drug, without some evidence that the drug concerned rendered the driver incapable of driving, is insufficient to sustain a conviction.

1.4 Against those three points, counsel for the notice party/respondent ("the D.P.P."), in addition to arguing on the merits of the points themselves, raised two further broad arguments. First, it was said that all, or at least some, of the points made on behalf of Mr. Sweeney concerned the assessment of evidence before the District Court. In those circumstances, it was suggested that an appeal to the Circuit Court was a more appropriate remedy and that, therefore, judicial review did not lie. Second, it was said that the only points which could properly be relied on in a judicial review application were points which had been raised in the trial court. It was said that not all of the points now sought to be relied on were raised before the respondent District Judge. Against that brief description of the issues, I propose to turn first to a somewhat more detailed account of the facts.

2. The Facts
2.1 On the 30th October, 2006, Mr. Sweeney was arrested by Garda Paul Duane at Farranamartin, Tuam, Co. Galway, pursuant to s. 49(8) of the Road Traffic Act 1961, ("the 1961 Act") as amended, on suspicion of committing an offence under s. 49(1), (2) or the (3) of the 1961 Act. Mr. Sweeney was additionally told that he was being arrested for drunk driving. It appears that Garda Duane’s suspicion was based on Mr. Sweeney’s appearance and manner when stopped at a routine garda checkpoint. In a written statement which was produced in evidence in the High Court and which was sworn to have formed the basis of his evidence before the District Court, Garda Duane described Mr. Sweeney as being “disorientated in speech and manner” and his eyes being “bloodshot, glazed and dilated”, all of which were said to be indicia of being under the influence of alcohol or a drug. Mr. Sweeney was then taken to Tuam Garda Station where he elected to provide two samples of his blood to a designated doctor. As noted earlier, one sample was provided to Mr. Sweeney. The other sample was sent to the Bureau for testing.

2.2 Then, on the 16th November, 2006, Garda Duane received a certificate from the Bureau stating that the concentration of alcohol in Mr. Sweeney’s blood was nil milligrammes per 100 millilitres of blood. A copy of this certificate was also provided to Mr. Sweeney. As a result of this certificate, Mr. Sweeney gave affidavit evidence before the High Court that he was of the belief that there was no longer any necessity to retain the sample which he held and, therefore, that he disposed of it. A second certificate was provided to Garda Duane on the 10th February, 2007, stating that “cocaine class” was found in the specimen. A summons was then issued on the 26th February, 2007, charging Mr. Sweeney with an offence contrary to s. 49(1) and 6(a) of the 1961 Act, as amended.

2.3 Mr. Sweeney was tried in the District Court before the respondent District Judge on the 7th December, 2007. The second certificate was adduced in evidence on that date by the presenting officer, Inspector Francis Nicholson. The only two witnesses to give evidence were Mr. Sweeney and Garda Duane. Garda Duane was cross-examined by the solicitor for Mr. Sweeney, Ms. Dempsey. She put it to him that the reason Mr. Sweeney was driving was because he had been requested to travel to Tuam by other Gardaí. Garda Duane said he had no knowledge of this and further added that he was merely carrying out a routine checkpoint when Mr. Sweeney came to his attention. Garda Duane also stated that he was not in position to contradict an assertion that Mr. Sweeney was being followed by an unmarked police car. Mr. Sweeney gave evidence to the effect that he had been requested to travel to Tuam by members of An Garda Síochána, that he would not have otherwise driven at the time in question, and that he was being followed by an unmarked police car. Mr. Sweeney was not cross-examined. Mr. Sweeney was convicted and sentenced to six months imprisonment and disqualified from driving for two years.

2.4 As the broad issues relied on by the D.P.P. have the potential to influence the way in which it might be appropriate for this Court to approach the specific issues relied upon on behalf of Mr. Sweeney, I propose to address those issues first. I will, therefore, turn to the question of whether judicial review is appropriate.

3. Is Judicial Review appropriate?
3.1 As the authors of Hogan and Gwynn Morgan, “Administrative Law in Ireland” (4th Edition, 2010) point out, at para. 10 - 151, it has been frequently stated in judicial review proceedings that the High Court does not act as a court of appeal from decisions of other tribunals. The authors cite, in that context, Lennon v. Clifford [1992] 1 I.R. 382, at p. 386 per O'Hanlon J. and the express approval of that statement of O'Hanlon J. by this Court on appeal in the same case, Lennon v. Clifford [1996] 2 I.R. 590 at p. 593 per Murphy J. Various other comments to like effect are also cited.

3.2 It has sometimes been said that judicial review is concerned with whether the decision maker whose action is sought to be reviewed (be it a person or body exercising legal power or a court established by statute) has acted within its jurisdiction. In that context, it is also sometimes said that such a decision maker may exceed its jurisdiction if in breach of obligations such as the requirement to adopt constitutionally fair procedures, the need to consider all but only relevant factors and other issues which have been determined to effect jurisdiction. However, it may well be that the use of the term "jurisdiction" in such circumstances has, at least in some cases, been a cause of confusion. The term "jurisdiction" can also be used in a narrow sense. In that sense it means simply whether the person, body or statutory court concerned has a power to embark on the relevant decision making process at all. However, it is clear that, in the context of considering whether judicial review lies, the term "jurisdiction" is used in a wider sense and covers, amongst other things, the type of cases to which I have just referred.

3.3 It is in that sense that the phrase "error within jurisdiction" is used in the jurisprudence. That phrase is designed to emphasise the distinction between the types of issues which can give rise to judicial review, on the one hand, and those issues which can only be pursued by an appeal, on the other. Because the legal power to make decisions of a particular type is vested in a person, body or statutory court, then, prima facie, and provided that the circumstances which confer the power to make the decision in the case in question exist, a decision made by the relevant entity within the parameters of what the law allows is, prima facie, valid. While the legal power to make a particular decision may be given exclusively to some such entity, it remains the case that Article 34.3.1 of the Constitution confers on the High Court a full original jurisdiction over all questions "of law or fact, civil or criminal". Even where exclusive jurisdiction is conferred on some other person, body or court, it remains the case, as Henchy J. pointed out in Tormey v. Ireland and the Attorney General [1985] I.R. 289, that the role conferred on the High Court by Art. 34.3.1 can be invoked to ensure that "the hearing and determination will be in accordance with law" (see p. 297).

3.4 In the light of that observation, it seems to me that it may be more helpful to describe the overall role of the High Court in judicial review (and the role of this Court, and indeed the Court of Appeal, when it comes into existence, as appellate courts exercising constitutional jurisdiction on appeal from the High Court's judicial review jurisdiction) as concerned with whether a decision of a person, body or statutory court which affects legal rights (arising from the law conferring on that person, body or court the legal power to make a decision of a particular type) is lawful. On that basis, various categories of grounds on which judicial review can be granted can be seen to be examples of a finding that the ultimate decision made affecting legal rights is not lawful.

3.5 Such an analysis does not, of course, answer every question. It obviously leads to the next question as to just what it is that renders a determination affecting legal rights to be regarded as unlawful or, in the words of Henchy J., not "in accordance with law". In the particular context of this case, the question arises as to what type of error actually renders a decision of a statutory court unlawful as opposed to being merely regarded as being in error. The so called "error within jurisdiction" jurisprudence must be seen in that light. Some errors may be such as render the ultimate decision unlawful and thus capable of being quashed by way of judicial review. Some errors do not render the decision unlawful and are only capable of being corrected, if at all, by an available appeal. It should also, in that context, be recalled that there would be little point in making any distinction between a judicial review and an appeal if there were no difference in substance between the sort of issues which could be canvassed in the respective cases.

3.6 It is important, therefore, to emphasise that judicial review is fundamentally concerned with the lawfulness of decisions taken affecting legal rights whether by persons, bodies, or courts having statutory jurisdiction. Judicial review is not concerned with the correctness of those decisions. There may be some legitimate debate as to the type of error which can lead to a decision being regarded as unlawful rather than simply incorrect. However, the fundamental distinction between unlawfulness, which can give rise to a decision being quashed on judicial review, and incorrectness, which can not, remains.

3.7 It is in that context that the issue arises as to the extent to which it is ever appropriate to grant judicial review quashing a decision because of an alleged absence or inadequacy of evidence. It is clear that the absence of evidence of a fact which must exist for the court or tribunal to have jurisdiction in the first place may well provide a ground for judicial review (see for example State (Holland) v. Kennedy [1977] I.R. 193). But there is a clear logic in treating such a case as being one where judicial review lies. As already noted, judicial review is concerned with the lawfulness of a decision affecting legal rights. If the decision maker did not have jurisdiction to make the decision in the first place, then clearly the decision was unlawful. If a certain set of facts are necessary in order to establish that jurisdiction exists, then the absence of any evidence of the existence of those facts demonstrates that the decision maker has not been shown to have jurisdiction at all. There is, thus, a clear distinction between evidence of facts which are a necessary pre-condition to the exercise of any jurisdiction at all, on the one hand, and evidence of facts which are relevant to the way in which the decision maker exercises a jurisdiction which has been shown to exist, on the other. In a case such as this, where an accused is tried before the District Court on a charge of driving under the influence of a drug, the relevant District Judge clearly has jurisdiction in the narrow sense provided that the accused is properly summonsed to appear before the Court. Whether the accused is guilty is a question of fact (or, in many cases, a mixed question of law and fact) to be decided by the District Judge on the evidence. Save in an extreme case, it is not a matter for the High Court (or this Court on appeal), in considering whether to quash a conviction thus arising, to, to use the language of Keane C.J. in D.P.P. v. Kelliher [2000] IESC 60, inquire "… into the merits into the decision and inquiring whether on the facts before him the District Judge was right or wrong in the course that he took. That is not a course which is open to the Superior Courts to take in judicial review proceedings. It is tantamount to affording the Director a right of appeal in such a case and of course it must inevitably follow that such a right of appeal would have to exist also in the case of an accused person who conversely took exception to an order returning him or her for trial".

3.8 Thus, there are very significant limitations on the extent to which it is appropriate for the superior courts to exercise their judicial review jurisdiction arising out of allegations that the evidence before a lower court or other decision maker was insufficient to justify the conclusions reached rather than insufficient to establish that the decision maker had any lawful capability to make the relevant decision in the first place. Absence of a lawful power to make the decision would render the decision unlawful. Save in an extreme case, absence of sufficient evidence as to the merits would only render the decision incorrect and, thus, not amenable to judicial review.

3.9 But there is a further matter for consideration. That is the availability of an appeal. The default position on the invocation of judicial review as opposed to an appeal as a method of challenge in criminal proceedings is set out in the judgment of Hederman J. in Sweeney v. Brophy [1993] 2 I.R. 202 at p. 211, where he observed:

      “In my judgment certiorari is an appropriate remedy to quash not only a conviction bad on its face or where a court or tribunal acts without or in excess of jurisdiction but also where it acts apparently within jurisdiction but where the proceedings are so fundamentally flawed as to deprive an accused of a trial in due course of law. I take this opportunity of emphasising that certiorari is not appropriate to a routine mishap which may befall any trial; the correct remedy in that circumstance is by way of appeal.”
3.10 In Gill v. Connellan [1987] I.R. 541, Lynch J. held that the applicant had not received a satisfactory hearing before the District Court and the question was whether an appeal to the Circuit Court was an adequate alternative remedy. He held at p. 548 that it was not, stating:
      “In the present case however both facts and law are at issue. Neither the facts nor the law have been adequately heard in the District Court. On an appeal to the Circuit Court, therefore, the appeal could hardly be said to be by way of rehearing - the case would more truly be heard for the first time. The applicant and his solicitor would be deprived of the possible advantage of having gone over the whole facts and law and having heard the submissions and cross-examination by the prosecuting superintendent in the District Court.”
3.11 An early example in the context of administrative decisions is The State (Abenglen Properties Ltd) v. Dublin Corporation [1984] I.R. 381, where a conditional grant of planning permission was challenged by the grantee through judicial review proceedings, rather than through an appeal to An Bord Pleanála. In considering which avenue was the more appropriate, O’ Higgins C.J. stated, at p. 393:
      “The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the court's discretion. It is well established that the existence of such right or remedy ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question. In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate.”
In that case, this Court was satisfied that the appeal provided under statute to An Bord Pleanála was adequate as An Bord Pleanála had full jurisdiction to consider all aspects of the appeal and could also state a case to the High Court.

3.12 In McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497, Barron J. was faced with the question of whether a statutory appeal or judicial review was appropriate in circumstances where there was an allegation that a planning authority had breached the obligation to obey fair procedures by determining the matter in question on a version of the facts which had not been fully disclosed to the applicant. Barron J. identified the following as being the key considerations in any such determination, at p. 509:

      “The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind.”
Applying these criteria, Barron J. felt that, as the applicant had yet to receive a fair determination on issues of fact, an order of certiorari was appropriate in the circumstances.

3.13 Similar sentiments were again expressed in a criminal context in Nevin v. Crowley [2001] 1 I.R. 113. Here, a sentence had been imposed by the District Court without affording the accused an adequate opportunity to be heard. Despite the initiation of an appeal to the Circuit Court, an order of certiorari was nonetheless granted by the High Court and upheld by the Supreme Court. At p. 118-119, Murray J. stated:

      “Where a trial, whether summary or on indictment, has been conducted in such a way as to be in breach of a fundamental principle of constitutional justice, the mere existence of a right of appeal cannot be an obstacle to the granting of an order of certiorari .”
3.14 Thus, it is clear that a court may refuse to consider a judicial review application where it is apparent that the complaint made is one which is more appropriately dealt with by means of a form of appeal which the law allows. There can, of course, be cases where the nature of the allegation made is such that, if it be true, the person concerned will have, in substance, been deprived of any real first instance hearing at all or at least one which broadly complies with the constitutional requirements of fairness. To say that someone, who has been deprived of a proper first instance hearing at all, has, as their remedy, an appeal is to miss the point. In such circumstances what the law allows is a first hearing and an appeal. If there has, in truth, been no proper first hearing at all, then the person will be deprived of what the law confers on them by being confined, as a remedy, to an appeal. In such a case, judicial review lies to ensure that the person at least gets a first instance hearing which is constitutionally proper and against which they can, if they wish, appeal on the merits in due course.

3.15 Where, however, a person has had a constitutionally fair first instance hearing and where their complaint is that the decision maker was wrong, then there are strong grounds for suggesting that an appeal, if it be available, is the appropriate remedy.

3.16 It seems to me that while there may not be complete consistency between all of the authorities, the balance of the case law suggests that the following principles apply. First, judicial review is concerned with the lawfulness rather than the correctness of the decision sought to be challenged. Second, where the jurisdiction of the relevant decision maker to embark on the process of making the relevant decision is either not challenged or is established, an error by the decision maker in reaching the necessary conclusions to determine the appropriate decision to be made does not, of itself, necessarily render the decision unlawful. At a minimum, it requires a fundamental error to raise the prospect that the decision is not merely incorrect but also unlawful. It is unnecessary, for the purposes of this case, to attempt any exhaustive examination of what might be said to be the type of error which is sufficiently fundamental to render a decision unlawful in all types of cases. For present purposes, it can at least be said that issues concerning the adequacy of evidence before a decision maker (as opposed to a complete absence of evidence of a necessary matter) will not render a decision unlawful. Third, even if judicial review might otherwise lie, a court will not exercise its jurisdiction where the law allows for an appeal and where an appeal would be an appropriate remedy to deal with the complaint made. Thus, there may be circumstances where judicial review will not lie against a first instance or initial decision but where it might lie against a similar decision of a body from which no appeal or no further appeal lay.

3.17 I propose to apply those principles to each of the three points raised on behalf of Mr. Sweeney when dealing with the respective points themselves for it is easier to understand the application of those principles when the precise nature of each point has been fully explored.

3.18 Against that background, I next turn to the question of whether the points now sought to be relied upon on behalf of Mr. Sweeney were properly raised in the District Court.

4. Were the points raised in the District Court?
4.1 The first two points concern delay. First, the almost 14 week gap between the taking of the specimens on the 30th October, 2006, and the receipt of the second certificate on the 10th February, 2007, is said to give rise to a prejudicial delay as Mr. Sweeney believed that it was not longer necessary to retain the sample after he received the first certificate as to alcohol content. Thus, it is said that he no longer has any means of independently testing the sample for the presence of cocaine class or cannot eliminate the possibility of contamination. It is accepted by Mr. Sweeney that there was no statement made to the effect that there would be no prosecution following receipt of the first certificate. However, it was contended on Mr. Sweeney's behalf that it is reasonable for a member of the public to consider an investigation as at an end in such circumstances in the absence of a notification to the contrary. Second, it was contended on behalf of Mr. Sweeney that the analysis of his sample by the Bureau and the consequent issuing of the certificate of presence of cocaine were not carried out "as soon as practicable" as required by statute. The exact extent of the submissions made by Ms. Dempsey on the issues of prejudicial delay and whether the tests were carried out “as soon as practicable” is somewhat unclear on the evidence before the High Court. However, it is accepted in the affidavits of both Inspector Nicholson and Garda Duane that submissions were made on this general area of delay. Inspector Nicholson averred that “Ms. Dempsey made submissions to Judge Fahy on the delay in having the sample analysed…” and this is confirmed by Garda Duane, who also averred, “Ms. Dempsey made submissions to the Respondent in relation to the delay in examining the blood sample for drugs after it had been examined for alcohol and she asked that the charge be struck out on that basis…” In a replying affidavit, Ms. Dempsey avers that she “did aver to the dangers inherent in the delay between the two blood samples…”.

4.2 The affidavits sworn show a divergence in recollection amongst those involved in the District Court on the third point. Inspector Nicholson’s affidavit and Garda Duane’s first affidavit do not make direct reference to the incapacity point. Rather, they both aver to the effect that Ms. Dempsey did not make any submission as to whether “Cocaine class” was a drug or intoxicant known to the law. In response, Ms. Dempsey avers that the incapacity argument she made related to the degree of incapacity caused by the presence of the drug and not whether it was known to the law. However, this was subsequently denied in Garda Duane’s second affidavit. As there was no cross-examination of the deponents on their affidavit evidence, it is not possible to resolve this dispute. In his High Court judgment, O’Keeffe J. also referred to this dispute at paras 24 and 25. There, he concluded that the issue as to the sufficiency of evidence on the incapacity point was not a matter for judicial review, and that, in any event, the issue raised in the District Court had been as to the status of “Cocaine Class” rather than its effect on Mr. Sweeney’s ability to drive.

4.3 To the extent necessary, I also propose to discuss the application of this general question in respect of each of the separate grounds now raised when individually addressing the specific points urged on behalf of Mr. Sweeney in each such case. I now turn to those grounds.

5. The Prejudice Point
5.1 As noted earlier, the point made under this heading is that Mr. Sweeney was prejudiced by being given a certificate from the Bureau certifying a zero alcohol concentration (in the context of his having been arrested on suspicion of drink driving) where there was no intimation that further tests concerning the possible presence of a drug were to be conducted. As also pointed out, Mr. Sweeney gave evidence that, as a result of receiving the first certificate, he discarded the blood sample which he had been given in the garda station on the basis of his assumption that he would not now be charged.

5.2 In that context, counsel placed particular reliance on Eviston v. Director of Public Prosecutions [2002] 3 IR 260. The applicant in that case sought to restrain the D.P.P. from taking any further steps in prosecuting her following a road collision causing the death of another driver. The applicant had procured reports stating that the cause of the accident had been the deflation of her back left tyre. After these reports were furnished to An Garda Síochána, the applicant’s solicitor was informed by the gardaí that the D.P.P. had decided not to direct the issue of any further prosecution. However, a summons was later issued against the applicant charging her with dangerous driving causing death. It was explained by the D.P.P. to the applicant’s solicitor that this reversal had resulted from an internal review of the original decision. It was conceded that no new information had come to light in the intervening period. The applicant sought to challenge her prosecution on two initial judicial review grounds, namely that the reversal was ultra vires or that the failure to notify the applicant that the original decision could be reversed amounted to a breach of the applicant’s right to fair procedures. Two further but related grounds were permitted to be argued by the High Court.

5.3 On appeal by the D.P.P. to this Court against the decision of the High Court (Kearns J.) to prohibit the further prosecution, a number of judgments were delivered. It was accepted by all members of the Court that the basis on which Kearns J. had granted relief, being that the D.P.P. had not complied with his own guidelines, was not part of the permitted grounds properly before the High Court and could not, therefore, stand.

5.4 In the judgment for the majority, Keane C.J. (with whom Denham and Geoghegan JJ. agreed) referred to the decision of Finlay P. in The State (O’Callaghan) v. O’hUadhaigh [1977] I.R. 42, before adding:

      “I am satisfied that the decision of Finlay P. in that case - that [the D.P.P.] is not exempt in the performance of his statutory functions from the general constitutional requirements of fairness and fair procedures - was correct in point of law. It also seems to me to follow inexorably from that proposition that where, as here, the Director avails of his undoubted right not to give any reasons for a decision by him to reverse a previous decision not to prosecute, but concedes that there has been no change of circumstances, his decision is, as a matter of law, prima facie reviewable on the ground that there has been a breach of fair procedures. Whether such a breach has been established must, of course, depend entirely on the circumstances of the particular case.”
Keane C.J. also held that the D.P.P., “as a matter of law, is entitled to reverse a decision already arrived at not to prosecute, even in the absence of new evidence or different factors, where he is of the view that his original decision was erroneous.” The fact that the applicant had not been prejudiced in her defence in any way by acting in reliance on the original decision was highlighted by Keane C.J. and he suggested that a different result might have arisen if that had been the case:
      “Moreover, assuming that the doctrine of equitable estoppel applies in a case of this nature, one could not say that there followed in the legal sense some detriment to the applicant which would render inequitable the continuance of the prosecution, since her ability to defend the proceedings had not in any way been impaired. Different considerations would have arisen if, for example, on receipt of [the D.P.P.'s] first decision, the wheel and tyre had been disposed of. In such a case, one could conceive of a prosecution being restrained either on the basis of an equitable estoppel having arisen or since the applicant could not be deprived of her constitutional right to a trial in due course of law because of the loss of evidence resulting from [the D.P.P.'s] actions.”
5.5 Returning to the fair procedures argument arising out of the failure to inform the applicant of the possibility that his first decision could be reversed, Keane C.J. observed that, as the procedures of the D.P.P. were not “part of the law” (rather, in his opinion, they were merely an internal system of review), the applicant could not have been assumed to have been aware of possibility of reversal. In the circumstances, he concluded that the applicant:
      “was subjected to a further and entirely unnecessary layer of anxiety and stress. Viewing the matter objectively, and leaving aside every element of sympathy for the applicant, I am forced to the conclusion that in circumstances where [the D.P.P.] candidly acknowledges that there was no new evidence before him when the decision was reviewed, the applicant was not afforded the fair procedures to which, in all the circumstances, she was entitled. It follows that the requirements of the Constitution and the law will not be upheld if the appeal of [the D.P.P.] in the present case were to succeed.”
5.6 A concurring opinion was delivered by McGuinness J., dismissing the appeal on the particular facts of the case. Although Murphy J. delivered a dissenting opinion on the basis that he was unconvinced of the legal arguments made by the applicant to justify a prohibition, he did confess to “a sense of relief that my views have not prevailed” in the particular circumstances of the case. Therefore, the decision of the High Court to prohibit any further prosecution of the applicant was upheld, albeit on different grounds.

5.7 In substance, therefore, two principles can be derived from Eviston. First, there may be a fair procedures requirement which arises in circumstances where the D.P.P. reverses a previously communicated decision not to prosecute without giving any reasons. Second, there may be circumstances where an accused, who has suffered prejudice as a result of placing reliance on a communicated decision by the D.P.P. not to prosecute, can argue that a trial in due course of law in accordance with the Constitution is no longer possible.

5.8 However, there is a very clear distinction between the facts in this case and the facts in Eviston. In the latter case, the accused was given a clear and express statement by the prosecuting authorities to the effect that no prosecution was going to take place. Here, the most that can be said is that Mr. Sweeney made an assumption, based on the fact that he was arrested on suspicion of drunk driving and received a certificate of zero alcohol concentration, that no prosecution was to take place. The issue which arises is as to whether the principles identified in Eviston extend as far as a case such as this.

5.9 I should first indicate that, in my view, this is a point in respect of which judicial review would, at the level of principle, lie. If an accused has a legitimate basis for suggesting that a prosecution cannot fairly be pursued on the merits because of an assurance that no prosecution was to be brought, then that is a matter which goes to the constitutional fairness of the accused being tried in the first place, rather than the exercise by the relevant District Judge of an adjudicative role on the merits of the prosecution. It, therefore, follows that it is necessary to consider the merits of the point.

5.10 In my view, it is not necessary to consider whether there may be some circumstances where the conduct of the prosecuting authorities, while falling short of an express direct statement to the effect that an accused will not prosecuted, may nonetheless be sufficiently close to such an express statement that the same consequences as were found to flow in Eviston should arise. Even if such a possibility exists, this case must, in my view, fall a long way short of the sort of circumstances where the conduct of the prosecution could be taken to amount to a clearly implied confirmation that no prosecution was to follow. Mr. Sweeney must be taken to know the law. The law allows for prosecution both for drink driving and drug driving although the precise parameters can be, for the reasons already analysed, somewhat different. The reason for the communication of a relevant suspicion of an arresting garda to a person who is to be required to give a sample for analysis is that the person concerned is entitled to be told the legal basis for arrest and the requirement to provide the requested sample. The fact that a garda may entertain a reasonable suspicion of drunk driving does not mean that a person cannot quite properly be charged with drug driving, if the result of analysis of a relevant sample establishes the presence of a drug and if sufficient evidence of incapacity to drive is also available.

5.11 In those circumstances, it does not seem to me that the combination of an arrest for drunk driving and the provision of a certificate of zero concentration of alcohol carries with it a clear indication on the part of the prosecuting authorities that the person concerned will not be charged. There is no necessary reason why separate analysis for the presence of respectively alcohol and drugs may not be carried out. Indeed, common sense would suggest that there are likely to be separate analysis for different substances. The fact that one analysis demonstrates the absence of alcohol does not carry with it any reasonable expectation or inference that there may not be another analysis for drugs and that such analysis may prove unfavourable to the person concerned.

5.12 In those circumstances, I am not satisfied that there is any merit to the argument put forward under this heading based on Eviston. There was no clear intimation by the prosecuting authorities that Mr. Sweeney would not be charged. Even if assuming, without deciding, that it is possible that conduct, short of a clear express statement on the part of prosecuting authorities, may be such as may amount to the same thing as a clear express statement, then the conduct of the prosecuting authorities in this case falls a long way short of giving any such implied clear assurance. In my view, the trial judge was correct to dismiss the judicial review challenge on this ground and the appeal on that ground should, therefore, be dismissed. I next turn to the ground based on whether the certificate of the Bureau in relation to cocaine can be said to have issued "as soon as practicable".

6. Was the Certificate issued as soon as practicable?
6.1 Section 19 of the Road Traffic Act 1994, as enacted, provided:

        “(1) As soon as practicable after it has received a specimen forwarded to it under section 18, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.

        (3) As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which the specimen analysed was forwarded a completed certificate in the form prescribed for the purpose of this section and shall forward a copy of the completed certificate to the person who is named on the relevant form under section 18 as the person from whom the specimen was taken or who provided it.

        (4) In a prosecution for an offence under this Part or under section 49 or 50 of the Principal Act, it shall be presumed until the contrary is shown that subsections (1) to 3 have been complied with.”

Section 19 was repealed by s. 33(c) of the Road Traffic Act 2010 but was the provision in force when the events which are the subject of the allegation of drug driving in this case occurred.

6.2 In Director of Public Prosecutions v. Corrigan [1980] I.L.R.M. 145, Finlay P. had to consider a predecessor to s. 19 of the 1994 Act, being s. 22 of the Road Traffic (Amendment) Act 1978, ("the 1978 Act") which also contained a requirement for specimens to be analysed and for the resulting certificate to be forwarded “as soon as practicable”. Section 23(2) of the 1978 Act (in making provision similar to s.19(4) cited above) also provided:

      “A certificate expressed to have been issued under s. 22 shall … until the contrary is shown, be sufficient evidence of compliance by the Bureau with all the requirements which the Bureau is obliged to comply with by or under this Part or under Part III of the Act of 1968.”
6.3 The certificate in this case, stating that Mr. Corrigan’s blood alcohol was in excess of the legal limit, had been sealed on the 15th November, 1979, three weeks after the blood sample had been taken. However, the arresting garda was unable to say when he had received the certificate, and no evidence was given by Mr. Corrigan as to when he received it. The District Judge fixed the date of receipt as the 18th December, 1979, as this was the date on which the arresting garda prepared his report. The District Judge concluded that this time lapse was not “as soon as practicable” and dismissed the charge against Mr. Corrigan. The D.P.P. appealed by way of case stated.

6.4 After citing ss. 22 and 23 of the 1978 Act, Finlay P. commented:

      “The effect of these two sections may be summarised as indicating that the Bureau has two obligations with regard to time and the first is to analyse the specimen as soon as practicable after it receives it and the second is to send to the Garda Station and to the defendant the certificate as soon as practicable after analysing the specimen. The second feature is that there is a rebuttable presumption arising from the production of the certificate itself that these two obligations inter alia have been complied with by the Bureau and that therefore the onus of establishing that they have not is upon the defendant.” (emphasis added)
He further observed:
      “Having regard to the presumption contained in Section 23 it seems to me clear that it is not possible for a mere lapse of time without any other evidence, and it certainly would not be possible for a lapse of time of approximately one month without any other evidence, for a court properly to reach the conclusion that a specimen was either not analysed or a certificate was not sent as soon as practicable. In order for a court to reach a decision to that effect it would be necessary for it to have before it material indicating the practical difficulties and surrounding circumstances under which either or both of these activities were carried out by the Bureau on the one hand, and the effect and consequences of any delay that occurred on the other. The onus of establishing the facts from which a court could draw conclusions on these two topics is clearly, having regard to the terms of the sections, upon the defendant.” (emphasis added)
Ultimately, Finlay P. held that the District Judge was not entitled to reach a conclusion that either the specimen had not been analysed as soon as practicable or that the certificate had not been sent as soon as practicable on the basis of the mere lapse of time as this ignored the presumption contained in s. 23 of the 1978 Act.

6.5 In Hobbs v. Hurley (Unreported, Costello J., High Court, 10th June 1980), a lapse of four weeks had occurred between the taking of the relevant sample and the furnishing of a certificate. The defendant in that case called a witness from the Bureau in an attempt to demonstrate a delay in sending the certificate. Of note are the observations made by Costello J. in relation to ss. 22 and 23:

      “Firstly the statute requires the Bureau to forward the certificate as soon as practicable after the specimen has been analysed and the concentration of alcohol in it has been determined. These words are not synonymous with an obligation to forward it as soon as possible. Had such words been used they would have imposed a more severe obligation on the Bureau than it now in fact has. Secondly, it must be borne in mind that the obligation imposed by the section is contained in a penal statute and so must be strictly construed. Thirdly, when considering what difficulties can properly be taken into account in deciding whether the Bureau's statutory obligation was carried out as soon as practicable the content and surrounding circumstances should be considered. In particular the nature and the purpose of the obligation must be borne in mind.

      The completed certificate is required to be sent to the Garda Station as soon as practicable because the prosecuting authorities will need it to decide under which sub-section (if any) of s. 49 the arrested person should be prosecuted. The arrested person may himself have retained a specimen of blood or urine for analysis (see s. 21 of the Act of 1978) and it is clear that the purpose of sending him a copy of the certificate as soon as practicable is to make him aware of the evidence which may be adduced against him and to afford him an adequate opportunity to prepare his defence should the certificate be adverse to him."

The above passage was also adopted by Finlay P. in Corrigan.

6.6 It is clear from that case law, therefore, that, while there is an obligation on the Bureau to analyse a sample and to forward a certificate as soon as practicable, the onus of establishing any facts necessary to allow a court to determine whether that requirement has been met rests on the accused. It must also be recalled that compliance with the various obligations, concerning certification of alcohol or drug concentration or presence, contained within the Road Traffic Acts are not prerequisites to a prosecution but rather are, for the reasons recently analysed by this Court in Director of Public Prosecutions v. Cullen [2014] IESC 7, conditions precedent to a certificate of the Bureau having the status of evidence. Thus, the question which was before the respondent District Judge was as to whether there had been a sufficient failure of compliance established on the part of the Bureau in relation to its timely certification obligations such as would render the certificate of the Bureau inadmissible as evidence.

6.7 In that context, it does not seem to me that the decision of the respondent District Judge on the admissibility of the Bureau's certificate is a matter properly amenable to judicial review. If there is a debate as to whether a lapse of time may be sufficiently lengthy to warrant, without evidence, an inference of a failure to analyse and to issue a certificate as soon as practicable, then that is a mixed question of law and fact to be decided by the District Judge on the basis of whatever evidence either party may wish to lead and in the context of it being clear that the onus of establishing any relevant facts lies on the accused. Such a decision, being at best, from the perspective of an accused, a mixed question of law and fact, is one in respect of which an appeal is clearly a more appropriate remedy.

6.8 In those circumstances, I am not satisfied that judicial review lies at all in relation to this point. Furthermore, and in any event, having regard to the onus which rested on Mr. Sweeney in this regard, together with his failure to call any evidence concerning the sort of period which might be "practicable" in the context of an analysis and certification for drugs, I am not satisfied that there is any merit in the point at all. I, therefore, turn to the question of evidence of incapacity.

7. Evidence of incapacity
7.1 As noted earlier, the issue under this heading is as to whether there was evidence before the District Judge which would have entitled her to reach a conclusion that the presence of cocaine in the blood of Mr. Sweeney was such as rendered him incapable of driving a vehicle so as to leave him open to being convicted under s. 49 of the 1961 Act, as amended. As noted earlier, some evidence of incapacity is necessary in order that a court can convict of drug driving as opposed to those provisions of the Road Traffic Acts which render it an offence simply to drive with a concentration of alcohol which exceeds the permitted maximum.

7.2 However, the evidence before the High Court was that Garda Duane had, in the District Court, given evidence in accordance with his written statement. That written statement included the fact that Garda Duane had formed the opinion “that [Mr. Sweeney] had consumed an intoxicant to such an extent so as to be incapable of having proper control of a mechanically controlled vehicle in a public place and that he was committing an offence under s. 49(1), (2) or (3) of the Road Traffic Act 1961, as amended”. The fact that that opinion was to the effect that Mr. Sweeney was incapable of driving by reason of alcohol as opposed to drugs is, for these purposes, neither here nor there. It was evidence of incapacity to drive. Whether the respondent District Judge was persuaded by that evidence is initially a matter for her. Evidence concerning the fact that Mr. Sweeney had been followed, it would appear, by another garda car without attracting, it would seem, any adverse attention to his driving and evidence concerning the fact that other members of An Garda Síochána had not been sufficiently concerned by Mr. Sweeney's condition to refrain from asking him to drive, are all factors which, doubtless, the respondent District Judge took into account.

7.3 However, the question of whether the respondent District Judge was correct to find that there was sufficient evidence to prove beyond reasonable doubt that Mr. Sweeney was incapable of driving by virtue of the presence of cocaine in his system is a matter which is quintessentially one to be reviewed on an appeal on the merits rather than by judicial review. Even if it be possible to seek judicial review on the basis that there was no evidence on which a necessary finding could be made, this case is not one where there was no evidence. The issue was as to whether, in the light of all the evidence, the case had been established to the criminal standard of proof. Such a case is certainly not one where judicial review is appropriate in circumstances where the accused has the benefit of an appeal which can allow all of the evidence to be re-examined by a Circuit Judge who can reach a fresh conclusion on the issue. For those reasons, I am satisfied that the trial judge was correct to dismiss the application for judicial review on those grounds as well. On that basis, it is unnecessary to consider further the dispute on the affidavit evidence as to whether this point was raised on the trial.

7.4 For completeness, I should add that, while it is clear that the question of the use of the phrase "cocaine class" in the certificate from the Bureau and whether the use of that terminology (the term being different at least in form to the term used in the legislation) is sufficient to allow a conviction, was raised in both the District Court and in the High Court on this judicial review application, it is also clear that that question was not raised in the notice of appeal and was not before this Court.

8. Conclusions
8.1 For the reasons which I have sought to analyse, I am satisfied that the circumstances in which Mr. Sweeney received an initial certificate showing a zero concentration of alcohol followed, some time later, by a certificate showing the presence of a drug, do not equate to a case where a potential accused has been expressly assured that there will be no prosecution, thus requiring matters to be analysed on the basis of the principles identified in Eviston. On that basis I would dismiss the ground of appeal based on the asserted application of Eviston to the facts of this case.

8.2 Furthermore, I am not satisfied that the question concerning whether the sample analysis was carried out and the certificate of the Bureau in this case was issued "as soon as practicable" or the question of whether the respondent District Judge was correct to decide that there was sufficient evidence of incapacity to drive, are matters which properly arise on a judicial review application where Mr. Sweeney had available to him a full appeal on the merits with a de novo hearing in the Circuit Court.

8.3 For those reasons, I am satisfied that the trial judge was correct to dismiss this application for judicial review. On that basis, the appeal should, in my view, be disallowed and the order of the High Court affirmed.

Judgment of Mr. Justice William M. McKechnie, delivered the 31st day of July, 2014.

Introduction:

1. This is an appeal from the judgment of O’Keeffe J. delivered on the 27th April, 2009, in which the learned judge dismissed an application for an order of certiorari quashing a conviction recorded against the applicant on the 7th December, 2007. That conviction related to the driving by him of a mechanically propelled vehicle in a public place whilst under the influence of an intoxicant such that, he was incapable of having proper control of same, contrary to s. 49, sub-ss. (1), and (6)(a) of the Road Traffic Act 1961 (“the 1961 Act”) as inserted by s. 10 of the Road Traffic Act 1994 as subsequently amended to the relevant date (“the 1994 Act”). The trial judge imposed a custodial sentence of six months imprisonment, disqualified him from driving for a period of two years and endorsed his licence to reflect these events.

2. The applicant challenged his conviction by way of an application for judicial review, with Peart J. granting leave, on the grounds contained in the statement grounding the application, on the 3rd March, 2008. The applicant also lodged a notice of appeal but did not pursue this alternative remedy. The substantive application came on for hearing before O’Keeffe J. who, in a written judgment delivered on the date above mentioned, refused all reliefs. From that decision and resulting order, the applicant served a notice of appeal to this Court on the 14th day of July, 2009. This is my judgment on the issues raised on that appeal.

Background:

3. On the 30th October, 2006, the applicant was stopped at a check point by one Garda Duane, of Tuam Garda Station and a short time afterwards was arrested on suspicion of having committed an offence(s) under s. 49(1), (2) or (3) of the 1961 Act as amended. At the Garda Station to which he was conveyed, he opted to provide a blood specimen to the designated doctor, who was called to the station for that purpose. That sample was duly divided into two parts with each part being placed into a separate container, which was then sealed, with one being given to the applicant. The other was posted to the Medical Bureau of Road Safety (“the Bureau”) for analysis on the day following this arrest. No issue arises regarding the arrest or the various steps taken in the police station, consequent thereon.

4. By certificate duly completed and in the prescribed form, dated the 13th day of November, 2006, and received by the gardaí on the 16th November, 2006 (“the first certificate” or “the alcohol certificate”), the Bureau duly certified a “nil” concentration of alcohol in the analysed sample. As required, a copy of this certificate was forwarded to the applicant. On receipt thereof, the applicant took the view that in light of the negative finding, he was free from any threat of prosecution, arising out of his arrest and accordingly disposed of that part of the sample which he had retained in his possession until then. However, much to his surprise, the Bureau issued a further certificate, received by the gardaí on the 10th February, 2007, which confirmed the presence of a “cocaine class” substance in the sample sent to it (“the second certificate” or “the drug certificate”). That finding prompted the issue of the summons containing the charge above mentioned. As part of the resulting prosecution, the second certificate was tendered and accepted in evidence by the respondent.

The Issues Founding the Application for Judicial Review:

5. In his affidavit grounding the application for judicial review, the applicant argued that this second, later certificate, being the only evidence adduced by the prosecution as to the presence of an intoxicant in his system, was not valid for the purposes of s. 19 of the 1994 Act (para. 32 infra). This argument was based on a number of grounds, including the following:

6. The second issue raised centred on a suggestion that as the seal attached to the sample had to have been broken not later than the 13th November, 2006, there was a distinct possibility that between the actual date of its removal and the date of the drug testing, the state of the sample had become contaminated by some external cocaine like substance, thus giving rise to the finding as recorded. This possibility is entirely consistent with the applicant’s denial of having consumed any intoxicant on the day of his arrest.

7. In addition, it was further argued that the issue and subsequent use of the second certificate, at least without some forewarning, was unfair, as it was reasonable for the applicant to assume that, given the result in the first certificate, he was thereafter free from all threats of prosecution and so was justified in discarding his part of the specimen, which he did. Consequently there was a breach of fair procedures regarding this process, with the result that the conviction should be considered as null and void.

8. The material placed before the Court by the Director of Public Prosecutions (“the D.P.P.” or “the notice party”) in defending the judicial review application, asserted that no submission had been made to the trial judge regarding the bureau’s seal, the possibility of contamination, or the meaning of “cocaine class”, as found in the second certificate. Therefore the Court should decline to entertain any of these issues on the review application. Without prejudice to this contention, the overall position adopted by the notice party was that in reality, the application was an attempt to challenge the sufficiency and quality of the evidence, which was exclusively for the trial judge. Once evidence was adduced which was capable of sustaining the conviction, its assessment was solely for the court of trial. Therefore, the true nature of the complaint was of a type which was not amenable to evaluation by judicial review.

9. The submissions which were advanced in the High Court have been largely replicated on appeal and are set out at paras. 14 to 18 infra. As the decision of the High Court can be understood without any detailed consideration of these, I do not propose to reproduce them in this part of the judgment; but of course reference should be made to what later appears in that regard, if necessary.

The High Court Decision:

10. In his decision, O’Keeffe J., noted the regrettable “divergence of recollection” as to what submissions had been made in the District Court, but ultimately agreed with the notice party that the essence of the applicant’s argument pertained to the insufficiency of evidence. He instanced the following submissions, which were made partly before him and partly before the trial judge, as illustrating this point;

        (i) that the applicant was only driving on the occasion in question, because he had been asked by the gardaí to go to Tuam Garda Station to resolve a particular problem (para. 17 infra): as this evidence was not challenged, his fitness to drive at the time could not therefore have been in issue;

        (ii) that the description of “cocaine class” in the second certificate, did not confirm that a “sufficient degree” of such like substance had been found in the analysis, so as to render the applicant “incapable of having proper control of the vehicle”; and

        (iii) that the evidence, when looked at from an overall perspective did not establish guilt beyond a reasonable doubt.

As can therefore be seen those were matters regarding the sufficiency of evidence: consequently and in accordance with the decision in Stokes v. District Judge Aidan O’Donnell, The Director of Public Prosecutions, Ireland and the Attorney General [1999] 3 I.R. 218 (“Stokes”) such could not form the basis for obtaining judicial review and therefore should be discounted.

11. The learned judge went on to hold that the Bureau was entitled to undertake the second analysis of the sample. Neither the opportunity to do so nor the issuance of the second certificate constituted unfair procedures. The gardaí never made any representation to the applicant that a further analysis would not take place. Moreover, by virtue of s. 19(4) of the 1994 Act it is to be presumed that sub-ss. (1) to (3) of that section have been complied with until the contrary is shown: in this context the applicant had not adduced sufficient evidence to rebut that presumption: The Director of Public Prosecutions v. Corrigan [1980] I.L.R.M. 145 (“Corrigan”). Finally it was unclear whether any complaint had been made in the District Court regarding the Bureau seal on the second certificate, but regardless, there was evidence now from Garda Duane who clarified the matter, thus removing any valid argument on this point.

12. In conclusion he rejected the submissions and dismissed the application.

The Appeal:

Notice of Appeal:

13. By notice of appeal dated the 14th July, 2009 it was claimed that the trial judge erred, in:

        (i) concluding that the D.P.P. could rely on the statutory presumptions regarding the certificate and that he, the appellant, had not adduced any evidence to rebut those presumptions;

        (ii) disregarding the legal consequences pertaining to the forwarding of the first certificate to the accused: in particular where the D.P.P. had failed to explain the delay between the respective certificates;

        (iii) accepting that once the second certificate had been served within the six month time limit for the commencement of a summary prosecution, the time requirements, expressed in the provisions as being “as soon as practicable” had been satisfied and thus that s. 19 of the 1994 Act had been complied with;

        (iv) finding that the circumstances surrounding the issue of the second certificate had not violated the appellant’s constitutional right to fair procedures; and

        (v) holding that the appellant did not suffer any prejudice as a result of the failure to warn him of the possibility that his specimen may be further analysed and if so that a second certificate would issue at a later date.

Submissions:

14. The appellant argues that the delay in serving the second certificate was inherently unfair and unjust as the initial certificate led him to believe that no prosecution would be pursued and that being so, he destroyed the sample which he had retained up to then. Despite the absence of any express statement or action amounting to a representation by the prosecuting authorities, this was a reasonable conclusion for him to reach as members of the public would generally be unaware of any practice to conduct staggered analysis on such samples. This submission, he claims is in line with case law relative to an analogous situation, such as Eviston v. The Director of Public Prosecutions [2002] 3 IR 260 (“Eviston”) where the D.P.P. had expressly informed the accused that she would not be prosecuted, only to reverse such decision after further review. This was held to be a breach of fair procedures: likewise should the course of action pursued in the instant case, be so treated.

15. It is also said that the wording of s. 19(1) of the 1994 Act (para. 32 infra) does not permit the Bureau to carry out a second or further analysis. However, even if the legislation did not exclude this possibility, such a practice is contrary to the principles of fair procedures in particular where prejudice may arise, as here, with the discarding of the sample. The statutory entitlement to choose and retain part of the specimen is designed to protect the rights of the individual in question and must be supported accordingly.

16. The submission goes on to say that the trial judge erred in law in concluding that there was no evidence to support the contention that the second certificate was not furnished “as soon as practicable” as per s. 19 of the 1994 Act. Corrigan is distinguished as it is not only the lapse of time between the two certificates, which is in issue here, but also the additional fact that the first analysis produced negative results. Thus, the prosecution cannot rely on the presumption under s. 19(4) of the 1994 Act as the delay was in itself excessive and requires explanation.

17. Finally, no evidence was adduced in the first instance by Garda Duane to support what is an essential element of the charge namely, that the accused was incapable of properly controlling the vehicle on the occasion in question. This is particularly so in circumstances where he was asked to drive, by the gardaí, to Tuam Garda Station and was followed on this part of the journey by an unmarked Garda car. Furthermore, whilst the arresting Garda gave evidence as to capacity, he did not say that the accused was “high” when he stopped him. In any event, given the circumstances as just outlined, this could not have been a view shared by his other colleagues.

18. In all circumstances the appeal should be allowed.

The D.P.P.’s Submissions:

19. The D.P.P. submits that the trial judge did not err in either law or fact, and fully supports the reasons given by the learned judge for his decision. As a general point the D.P.P. reiterates that this is a case relating to insufficiency of evidence with the appellant in reality seeking to re-run his substantive defence to the s. 49 charge: thus the challenge is not befitting of judicial review; rather it logically is more suited to the appeal process which should have been pursued: see Stokes; Doyle v. Judge Connellan [2010] IEHC 287 (“Doyle”); and Dunne, Judicial Review of Criminal Proceedings (Dublin; Round Hall; 2011) at para. 2.16. The appellant however has not addressed this issue in his submissions.

20. It is also submitted that the appellant did not adduce any evidence to rebut the statutory presumptions contained in ss. 19 and 21 of the 1994 Act: Corrigan was cited in support of the consequences of such failure.

21. Significant reliance is also placed on the case of Power v. Judge Anthony Hunt and The Director of Public Prosecutions [2013] IEHC 174 where ss. 19 and 21 of the 1994 Act were discussed. O’Malley J. in that case, where the lapse of time between the two certificates was six weeks, was of the opinion that “there is nothing intrinsically wrong with having two certificates” (para. 29). Moreover, the emphasis placed by the learned judge on the nature and purpose of certificate evidence should also be noted: such permits the prosecution to prove evidence without having to call oral witnesses, which otherwise would be inadmissible as hearsay. This also supports the contention above made in para. 20 supra.

22. O’Keeffe J.’s determination that the appellant was not denied fair procedures is likewise reiterated. It is submitted that the circumstances of the instant case, that is, the issuance of the second certificate after the first certificate, is too far removed from the analogy which is sought to be drawn with Eviston in which a clear representation was made that a prosecution would not be pursued only then for the D.P.P. to reverse his decision. That situation has no parallel to the instant case.

23. Finally, the D.P.P. highlights that O’Keeffe J. also declined to grant the relief sought on the basis that a number of the grounds of appeal were not raised at first instance. This, it is said, was based on the doctrine of acquiescence/waiver and represents a correct statement of the law.

Scope of the Appeal

24. There is controversy in this appeal as to what issues the District Judge was addressed on by way of submissions made on behalf of the accused person. The affidavits of the presenting officers, Inspector Nicholson and Garda Duane, are focused and to the point, namely that no reference was made to the Bureau’s seal not having been affixed to the second certificate, that the possibility of the sample having been contaminated was never mentioned, and neither was the argument that the term “cocaine class” had no meaning in and was unrecognised by Irish law.

25. Notwithstanding those strong averments however, I am prepared to assume that some reference was made to the possibility of contamination, though I must confess, not without considerable misgivings. The affidavit of the solicitor who represented the accused person is, in respect of these matters, vague, imprecise and acutely tentative. This is in sharp distinction to the D.P.P. evidence. This conflicting situation put the High Court at a serious disadvantage as it was of course impossible for the judge to resolve these issues on affidavit, a difficulty which equally faces this Court. It is no answer to suggest that the deponents might have been cross-examined on their affidavits; these were legal submissions and should not have to be resolved in this manner. Surely it cannot be a difficult matter to note, at least in broad terms, what issues were so covered.

26. What I am not prepared to do however, is to permit the appellant to raise, as an appeal point, a ground which cannot be found in the notice of appeal, no matter how that document is viewed or interpreted. That notice lists five issues, in truth not more than two, namely;

        (i) The statutory time point and whether the presumption of conformity had been displaced; and secondly

        (ii) The fair procedures issue.

27. On no possible reading of the notice can I find any reference whatsoever to the suggestion, which is now sought to be made, that the words “cocaine class” are incapable of being understood in Irish law and as a consequence the certificate in issue is legally meaningless. It is well-established law that a statement of the grounds of appeal should be specific and clearly stated: Hughes v. The Dublin United Tramways Company [1911] 2 I.R. 114. Just as the leave order, subject to any subsequent amendment, dictates the jurisdictional parameters of the review application, so also the notice of appeal serves a like or similar purpose before this Court: see McCormack v. An Garda Síochána Complaints Board [1997] 2 IR 489, Keegan v. Garda Síochána Ombudsman Commission [2012] 2 I.R. 570 and O. 87, r. 6 Rules of the Superior Courts. Consequently, this point, in my view, cannot be raised. This means that there are two broad issues for consideration, noting, that it is now accepted that the Bureau’s seal was in fact affixed to the original version of the second certificate, though this was not evident on the photocopy which the appellant received. In addition there is the third issue as to the suitability of pursuing the remedy of judicial review in the circumstances as disclosed. These matters will therefore be now addressed.

Lurking in the Background:

28. Lurking within this case are the immediate circumstances which in the first instance lead to the accused person driving his car on the occasion in question. It seems to be uncontroverted that some very short time before Garda Duane stopped him, colleagues of his, or at least one such colleague who in fact was identified by name in open court, went to his house and said that there was a problem, loosely later referred to as a “family problem”, which he had better go to Tuam Garda Station to resolve. The appellant therefore got into his car and drove for some distance before reaching the checkpoint manned by Garda Duane. He gave unchallenged evidence of this. He also gave unchallenged evidence that an unmarked Garda car followed him on this journey.

29. The D.P.P. in the affidavit sworn on her behalf, characterised the purpose which lay behind the giving of this evidence, as being an attempt to suggest that the checkpoint and arrest, were a “set-up” by the gardaí, but went on to immediately say that in any event, as Garda Duane was not aware of what had previously taken place, such a theory had no relevance and could be disregarded. I profoundly disagree.

30. This sequence of events seems quite extraordinary to me, and if the theory had been pursued, at least from my part, apparently unlike the trial judge who felt that such evidence was “neither here nor there”, I would have found it extremely disturbing and of necessity, would have demanded a full explanation for it. Whilst the judicial role is not, and correctly so, to be at the forefront of Garda behaviour, nonetheless, as the ultimate custodians of justice, it will not be found wanting in this regard if the necessity arises. In The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550 McCarthy J. made it quite clear that misconduct by the gardaí which affects an individual’s rights will not be dealt with solely by “a judicial rebuke, however severe”. Rather the rights in question will “be immediately enforceable without qualification and [regardless] of consequences…”. Hardiman J. in Lynch v. The Attorney General [2003] 3 IR 416 was likewise of the view that although the courts do not excercise a general disciplinary power over the executive, nevertheless they will not stand aside in face of unacceptable behaviour. Thus the courts will anxiously scrutinise any allegation in this regard.

31. However, the applicant disavowed any “set-up theory” in rendering such evidence: rather, the purpose was to suggest that since the garda in question evidently thought him fit to drive, this would be a significant piece of evidence in his favour regarding capacity. That being the situation, it is unnecessary to make any further comment on this issue.

The Delay Point - as a Breach of Statutory Provisions:

32. Section 19(1) of the Road Traffic Act 1994 as amended reads:

      “19.- (1) As soon as practicable after it has received a specimen forwarded to it under section 18, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.

      (3) As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which this specimen analysed was forwarded a completed certificate in the form prescribed for the purpose of this section and shall forward a copy of the completed certificate to the person who is named on the relevant form under section 18 as the person from whom the specimen was taken or who provided it.

      (4) In a prosecution for an offence under this Part or under sections 49 or 50 of the principal Act, it shall be presumed until the contrary is shown that subssections (1) to (3) have been complied with.

33. Section 21(3) of the 1994 Act is also relevant in this context:
      “(3) A certificate expressed to have been issued under section 19 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 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 Bureau with the requirements imposed on it by or under this Part or Part 5 of the Act of 1968.”
34. As can therefore be seen, s. 19(1) obliges the Bureau to analyse the received sample “as soon as practicable”, with sub-s. (3) imposing a similar obligation as regards the requisite certificate in that the Bureau must forward the same, to the relevant Garda Station, and a copy to the individual in question, again “as soon as practicable”. These are the relevant time periods which the appellant says have been breached in his case. He claims that, from the respective dates of the first and the second certificates, such deduction can and should be made. Furthermore he asserts that the presumptions arising from the statutory provisions as quoted do not alter this conclusion in any respect.

35. In any prosecution taken under s. 49 of the 1961 Act, as that against the appellant, the D.P.P. can call in aid the presumption contained in s. 19(4) and also that specified in s. 21(3), of the 1994 Act. Under sub-s. 4, the presumption applies to all matters covered by s. 19(1) and 19(3). As pointed out, the time requirements in issue for both the analyses and the certificate are contained in those provisions. In any event, quite evidently, the presumption therefore applies to both of these events, the assessment of which is a question of fact. This in reality is not seriously contested.

36. The presumption under s. 21(3) of the 1994 Act has two aspects to it. Firstly, it declares that a certificate, duly issued, shall be sufficient evidence of the specific facts stated in the certificate until the contrary is shown: those facts relate to the name of the person who supplied the specimen, the nature of the specimen, when and where taken, the findings of the analysis, and the signature of the analyst. None of these matters are in issue and therefore this first aspect of this presumption is not material. The second part is much more general: it says that such a certificate shall be sufficient
(note, not conclusive), evidence of the Bureau’s compliance with its obligations as imposed
inter alia by Part III of the 1994 Act and Part V of Road Traffic Act 1968. It therefore clearly includes, but evidently is not restricted to, s. 19 of the 1994 Act, nor is it confined to matters of fact. It extends to any requirement imposed on the Bureau, pursuant to the provisions, as mentioned. Accordingly, the situation is that s. 19 has the benefit of both presumptions which in part deal with separate matters but which in part also overlap to some degree. Moreover, the difference in wording between the presumptions might be noted, although the phrase “… until the contrary is shown …” is common to both.

37. Presumptions in law are many and varied in both form and substance, and can arise either from the common law or via statute. Simply stated, they are designed, at least for the most part, to ease the evidential burden on a party to either civil or criminal proceedings. They feed on proof of some basic fact(s) or proposition(s), which once established compels or allows a court to assume the existence of some other fact(s) or proposition(s). In this way, what can be inferred does not have to be established in a primary way, as the basic fact(s) or proposition(s) has to be.

38. The question which then arises is what effect such presumptions have? Given that there are many types, with variable views as to their proper classification and utility, it becomes necessary in discussing this question to confine our conversation to those arising in this case or to those which are analogous to them: otherwise the debate can be conducted only at the most general level.

39. The first thing to note is that the presumptions in issue are in statutory form and exist in the context of a criminal prosecution: therefore their wording must be strictly construed but will be influenced by the relevant rules of constitutional justice and fair procedures, as well as other principles such as the presumption of innocence and where the burden of proof rests. The importance of the latter can be seen in cases such as Hardy v. Ireland [1994] 2 I.R. 550 (“Hardy”) and O’Leary v. The Attorney General [1995] 1 I.R. 254 (“O’Leary”) which are two decisions of general importance for their interpretive conclusion on the effect of such presumptions.

40. Hardy related to offences under the Explosive Substance Act 1883 (“the 1883 Act”). Under s. 4 of the 1883 Act any person who knowingly has in his possession an explosive substance, in circumstances which give rise to a reasonable suspicion that he does not have it for a lawful object, shall be guilty of a felony unless he can show that his possession was for a lawful purpose. (Immaterial parts of the section omitted). It might be usefully observed that between the basic fact and the presumed fact, there is an intermediate requirement of a finding that the circumstances of such possession give rise to the suspicion mentioned: such requirements are sometimes to be found in presumptions, for example in s. 15 of the Misuse of Drugs Act 1977, as amended, and sometimes not. Their existence or absence is not material to the more general principles governing presumptions. Having been convicted under the s. 4 of the 1883 Act, Mr. Hardy argued that its provisions had the effect of changing the burden of proof so that he could be found guilty of the offence without that guilt having been proved beyond a reasonable doubt. As so viewed he claimed that the provision was not carried forward by Article 50 of the Constitution.

41. The Supreme Court rejected this argument. It held that the onus of establishing the guilt of the accused person, beyond a reasonable doubt, remained at all stages with the prosecution. Undoubtedly, on proof of possession with knowledge, and where the circumstances thereof gave rise to a reasonable suspicion that he did not have the substance for a lawful purpose, the evidential burden moved to the accused person. That burden could be displaced in any number of ways, such as cross-examination (O’Broin v. District Justice Ruane [1989] I.L.R.M. 732), submissions, or the giving of evidence by or on his behalf. However, at the end of the trial and before conviction the court must always be satisfied that the charge has been proven beyond reasonable doubt.

42. In the O’Leary case Mr. O’Leary was convicted of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939 (“the 1939 Act”), as amended. In its proofs before the Special Criminal Court, the prosecution relied on a presumption contained in s. 24 of the 1939 Act which provided that where it was established that the accused person had possession of an “incriminating document” relating to that organisation, such possession “… shall, without more, be evidence until the contrary is proved …” that he was such a member. His proceedings, which sought a declaration that the section breached his right to the presumption of innocence, were dismissed in both the High Court and on appeal by this Court. In rejecting a submission that the section imposed a burden on the accused person to prove that he was not such a member, the Supreme Court interpreted the provision as being referable to “evidence only” and thus its effect shifted the evidential burden, but did not disturb the legal burden.

43. In both of these case, once the basic fact was proved and once the intermediate requirement was established (Hardy), the wording of the provision appeared mandatory in form: Mr. Hardy “… shall, unless [he can show the lawfulness of possession], be guilty of a felony …”: with possession in Mr. O’Leary’s case having the effect that, “… it shall, without more, be evidence until the contrary is proved …” that he was a member of such organisation. It is important to recognise the very clear and definite distinction between mandatory legal presumptions and mandatory evidential presumptions. As made clear in both Hardy and O’Leary, the proper construction of s. 4 of the 1883 Act and s. 24 of the 1939 Act, given the constitutional context in which such provisions arise, is to regard them as evidentially focused, thus leaving untouched the legal burden with regard to the guilt or innocence of the accused.

44. Although Hardy and O’Leary dealt with specific statutory provisions, I have no doubt but that, unless clearly mandated by its specific wording, all such presumptions should likewise be construed; if necessary the double construction rule should be invoked: McDonald v. Bord na gCon [1965] I.R. 217. Otherwise constitutional issues will arise.

45. It is therefore the case that, once the basic fact(s) is established, the onus shifts to the opposing party to negative the existence of the presumed fact(s), proposition(s) or state of affairs; one can do so by producing evidence as to their non-existence. If successful to that end, the result, quite obviously, is that the presumption does not apply and in such circumstances, the party in whose favour the presumption existed, must establish the presumed fact in the normal way.

46. Two final matters of general importance might be mentioned. As the shifting of the evidential burden in the context under discussion does not relate to the question of guilt or innocence, there is therefore no question of the standard of proof being that of beyond a reasonable doubt. The standard in my view should not exceed the civil standard, which standard Egan and Murphy JJ. applied in Hardy. In fact I am not even convinced that contrary proof to such level is required. It may be that evidence, of a credible and plausible nature, which creates a reasonable doubt, would be sufficient to negative a presumption. However, as the point was not really addressed I defer in giving a definitive view on it.

47. The second is that all presumptions which impact on the exercise of judicial power are rebuttable: those, on a true construction, which compel a judge to arrive at a conclusion by a process which dictates how judicial power should be exercised cannot stand, as it impinges upon the provisions of Article 34.1 of the Constitution. Maher v. The Attorney General [1973] I.R. 140 and The State (McEldowney) v. Kelleher [1983] I.R. 289.

48. The presumptions specific to the 1994 Act have been looked at in a number of cases. In Corrigan, where the lapse of time between the sending of the sample and the receipt of the Bureau’s certificate was one month, Finlay P. said that the mere lapse of time without more, certainly given the period involved in that case, could not form the basis for shifting the presumption. In order to reach such a conclusion, it would be necessary, the President continued, for the Court;

“… to have before it material indicating the practical difficulties and surrounding circumstances under which either or both of these activities [analysis and forwarding of certificate] was carried out by the Bureau on the one hand, and the effect and consequence of any delay that occurred on the other. The onus of establishing the facts in which a court could draw conclusions on these two topics is clearly, having regard to the terms of the sections, upon the defendant”. (p. 148)

Although Corrigan concerned the Road Traffic (Amendment) Act 1978, the provision in issue was identical to s. 21(3) of the 1994 Act.

49. Finally, in The Director of Public Prosecutions v. Fennelly (Unreported, Supreme Court, 2nd December, 1998) O’Flaherty J. said, by reference to s. 21(3) of the 1994 Act, that a duly completed medical Bureau certificate “… really proves itself. It stands ‘until the contrary is shown’.”

50. In summary and at a general level the position regarding presumptions is as follows:

        (i) Presumptions are creatures which assist a party, in either civil or criminal cases, in discharging the proof upon him, in respect of matters covered, and to the level as provided.

        (ii) These are variable in both substance and form: some follow from the establishment of basic facts: some have added requirements: the wording of any particular one may differ from another: some directly address the court “the court shall …”: some do not “… it shall be presumed …”: the nature of what may be inferred can also vary, and they may arise either at common law or by statutory provision.

        (iii) In the criminal context, almost all must be interpreted in light of basic legal and constitutional principles such as fair procedures and constitutional justice and what these may give rise to, in the context of any given case, for example the presumption of innocence, burden of proof, etc.. When so viewed, there will be very few indeed, if any, which are not confined to the evidential burden of proof: those which are suggested as affecting the legal burden will be scrutinised with great care as to their compatibility with such provisions.

        (iv) When the onus shifts the standard of rebuttal is not at the criminal level: at most it is on the balance of probability: arguably an even less standard such as creating a reasonable doubt, could be sufficient.

        (v) When that standard has been satisfied, the presumption is disapplied with the result that the obligation reverts to he upon whom the general onus of proof rests.

        (vi) Any presumption, which forecloses on the exercise of judicial power, such as one being described as “conclusive” as to guilt, will be considered as an infringement on that power. It will, as a result, be stood down.

51. Before outlining my conclusion on this point, there is one further matter which was raised very much on the periphery by the appellant: it was to suggest that s. 19(1) of the 1994 Act permits the Bureau to test for alcohol or for drugs, but not for both. This was based on the use of the conjunction “or” on the third line of the provision. Such a view in my opinion is a misreading of the section. As properly understood, the conjunction signifies to me that the analysis and process differ, as between alcohol and drugs and that therefore there are separate steps of procedures involved, depending on which particular substance is being tested for. This is supported by the definition of “analysis” in s. 9(1) and by the definition of an “intoxicant” in s. 10, both of the 1994 Act. I therefore reject any such interpretation of the provision.

52. Against the background of the presumption of appropriate compliance and due regularity by the Bureau, of its obligations to test the specimen and to forward the required certificate within the timeframe as set out in s. 19 of the 1994 Act, the question is whether the appellant has discharged the burden of proof on him so that the notice party can no longer rely on the presumption. If he has, it will then become necessary to make an actual determination as to whether those steps have been carried out “as soon as practicable”: if he has failed to do so, such a determination will not be required.

53. The appellant called no evidence as part of his rebuttal to this presumption: nor were any questions asked of the gardaí in this regard: even if they had however, it is most probable that he would have had nothing useful to contribute. The entire basis of the challenge rests on the respective dates when the first and second certificates were received. Taking the first date as the reference point, it is claimed that the lapse of almost three months is in itself sufficient to discharge the burden. With respect, I cannot agree.

54. I come to this conclusion not merely on account of what Corrigan said, namely that “a mere lapse of time without any other evidence” would not be sufficient, as the gap in that case was only a little over a month, nor on the basis advocated by the learned trial judge, which if correct, would have the effect of substituting the period of six months for the phrase in issue, but rather on the following basis.

55. It seems clear that the test for drugs is different from the test for alcohol, and that each involves a separate process of analysis. Certainly in this case the analyst differed from one test to the other. In addition, the Regulations, the Road Traffic Act, (1994) (Part III) (Amendment) Regulations, 2001 (S.I. No. 173/2001), provide separate forms to record the result for alcohol and drugs: indeed this is quite apparent from the actual certificates issued in this case, the first in express terms certifying the concentration of alcohol with the second being referable solely to drugs. It therefore seems probable that a composite single test is not appropriate with the evident result that either one must follow the other. That being so, I do not think that it is necessarily correct to regard the date of the receipt of the first certificate as being the appropriate reference point from which the time period should be measured. There may be many reasons internal to the Bureau, for example, the practical difficulties and surrounding circumstances in which it carries out its activities (Corrigan), which fully explain the time period involved, or of course, there may not be. But in the absence of some evidence in this regard, the Court in effect is being invited, without any basis therefor, to conclude that no such reasons exist. This it cannot do.

56. The situation may be different in the case of a single sample, where the forwarding of the specimen may be regarded as a fixed and definitive date. That is not the case here. Moreover, one cannot even say what part of the time period passed before the analysis was done or what part expired, before the certificate issued. Consequently, in these circumstances, I cannot agree that the presumption has been stood down. Accordingly, it necessarily follows that the District Judge was correct in accepting the certificate as evidence and in relying upon it, in accordance with the relevant provisions of the 1994 Act.

57. Before I move to the next issue I should point out that no argument whatsoever has been made by either party as to what consequences might follow should the Court find that the time requirements had not been adhered to. It has been assumed that a failure to act “as soon as practicable” in either situation will be fatal to the legal utility of the Bureau’s certificate. That may well be the case but in the absence of argument and authority I hold my view on it.

Fair Procedures:

58. The second substantive argument advanced on behalf of the appellant is that, in the circumstances outlined, there has been a breach of fair procedures which can only be remedied by an order of certiorari quashing the above mentioned conviction. Eviston has been cited to support this proposition. In my view, this case has only marginal relevance to Mr. Sweeney’s position.

59. Mrs. Eviston had been the driver of a motor vehicle involved in an accident resulting in the death of a third party. After the criminal investigation had been concluded, the D.P.P. intimated to the investigating gardaí that no prosecution would result, which information was subsequently conveyed to the applicant via her solicitor. On becoming aware of this, the victim’s father made a representation to the D.P.P. for a review of that decision. The result was to charge Mrs. Eviston with dangerous driving causing death. This decision she successfully challenged on various grounds in the High Court, which the D.P.P. appealed therefrom to this Court.

60. Keane C.J. reviewed the general principles of law which apply to the D.P.P. in the discharge of his statutory functions. These can be summarised as follows:

        (i) In deciding whether or not to prosecute, the decision of the D.P.P. will not be reviewable unless it was made male fides, influenced by an improper motive or governed by an improper policy, or where he has abdicated his functions (The State (McCormack) v. Curran [1987] I.L.R.M. 225). The Chief Justice also felt that the facts should not exclude the reasonable possibility of there being a proper and valid decision not to prosecute.

        (ii) There is no obligation on the D.P.P. to give reasons for the making of such decision (H. v. The Director of Public Prosecutions and the Commissioner of An Garda Síochana [1994] 2 I.R. 589).

        (iii) This is based partly on the fact that such decision does not involve the exercise of judicial power and secondly, save in the limited instances referred to at (i) above, that such decision is not reviewable.

        (iv) Even though the two well known principles of audi alteram partem and nemo iudex in causa sua do not, strictly speaking, apply in the making of such a decision, nonetheless it is unquestionably the case that in the discharge of her statutory functions, the D.P.P. is bound to observe general constitutional requirements of fairness and fair procedures. This obligation encompasses much more than simply the two principles which I have mentioned.

61. On the facts of the case, the essential reason for injuncting the continuation of the summary proceedings was, in light of the communication not to prosecute, the reversal of such decision in the absence of any change of circumstances. On the facts it was held that the D.P.P. had acted in breach of fair procedures.

62. In addition to what is set out above, but also in a manner quite independently of it, it is quite evident at the level of principle that in the discharge of its statutory functions, the Medical Bureau must have regard to, and act in conformity with, the principles of natural justice and fair procedures. This was made clear, at the level to which I speak, in East Donegal Co-Operative Livestock Mart Ltd. & Ors. v. The Attorney General [1970] I.R. 317 where at p. 341, Walsh J., having referred to the presumption of constitutionality, went on to say:

      “At the same time, however, [that presumption] carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
This statement of the law therefore has every application to the Bureau’s statutory functions under the Road Traffic Code.

63. As para. 61 supra indicates, the real unfairness in Eviston was the complete reversal of a decision not to prosecute, which had been expressly communicated to the applicant, without any change or alteration in the underlying circumstances. The situation here is quite different.

64. In considering the fairness issue in this case, it must be borne in mind that the s. 49 offence relates to an intoxicant, which by definition may be either alcohol or drugs, or a mixture or combination of both. As above stated, the test for either is different, with the regulations providing for two different forms on which the individual results are to be recorded. Those forms, in express terms, are classified either as relating to alcohol or to drugs, but not to both. The possibility therefore that two certificates could issue could not be reasonably regarded as being unusual: if anything, particularly where the first contains a negative finding, one might expect an analysis also for the other substance. In any event, on receiving the first certificate, the applicant must, or at least must be regarded as knowing that the certificate related solely to alcohol. Its contents therefore could not have amounted in any way to a representation either that a second certificate would not issue or that he was free from any prosecution threat arising out of his arrest.

65. The real issue in this context is I think the discarding of the specimen given to him in the Garda Station. But for that, he would have no point on this issue. However, his act in so doing must be looked at in the legal context of the statutory provisions which, by reason of his arrest, he was engaged with. By reference thereto, it is quite clear for the reasons which I have advanced that whilst free to make such decision, he cannot establish any basis for imputing some legal consequences as a result, to the notice party. Therefore, I do not consider that what occurred amounted to a breach of fair procedures.

The Appropriateness of Judicial Review:

66. The evidence at trial given by Garda Duane as to the appellant’s physical condition was that his eyes were bloodshot, glazed and dilated: he was, in conversation, disorientated as to speech and manner. It was, as the garda put it in his affidavit, as if the accused was “high”, though it is disputed if in fact he even used this particular description. The Garda went on to tell the District Judge that by reason of such matters he had formed the opinion that the appellant had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle. This evidence was of course supported by the certificate from the Medical Bureau.

67. In addition to cross-examining this witness, the appellant himself gave evidence, explaining the appearance of his eyes as relating to his job as a coal merchant. He denied consuming any drug substance, and pointed to the events which led up to his driving in the first instance, as supporting his capacity to drive on that occasion.

68. The District Judge was thus faced with evidence which might be considered as inconsistent, if not conflicting. Based on where such evidence rested, the appellant urged an acquittal, arguing that he had raised a reasonable doubt regarding his capacity to drive. The District Judge evidently had to make a decision on this: she rejected his submission, and convicted, having been satisfied on the prosecution’s evidence that each essential element of the charge had been established to the criminal standard. In my view she was perfectly entitled, as a matter of law and fact, to do so. It was her obligation to assess the quality and adequacy of what had been tendered for her consideration. Once there was sufficient evidence to sustain the conviction, it was entirely a matter for her to reach a decision on it. The issue, which confronted the judge, and one which the appellant wishes to re-litigate in these proceedings, is therefore clearly “an assessment of evidence” issue. That being so, I am quite satisfied that judicial review is an inappropriate remedy to address any such grievance which the appellant may have in that regard.

69. The case law fully supports this viewpoint. The High Court, when exercising its judicial review jurisdiction, is not a court of appeal, save as provided by statute, and should not lend this jurisdiction to second guessing the adequacy or sufficiency of the evidence given at trial: Murphy J. in Roche v. District Judge Martin [1993] I.L.R. M. 651 described the making of such a case “as virtually impossible”. Nor should the Court minutely comb the evidence as given to test the conclusions reached: Truloc Ltd. v. District Judge Liam McMenamin and Donegal County Council (Notice Party) [1994] 1 I.L.R.M. 151. Likewise, where it was suggested that there was a conflict in the evidence, such that a particular presumption could not apply; Stokes. Geoghegan J. in Buckley v. Judge Brian Kirby and The Director of Public Prosecutions [2000] 3 IR 431 stated, in relation to that case: “Since this is a case of an alleged incorrect assessment of the evidence or lack of it, an appeal is quite obviously the appropriate remedy” (p. 436). Finally, the issue in dispute in Doyle, was whether the prosecution had tendered evidence as to the driving incapacity of the accused on a charge under sub-ss. 49(1), and (6)(a) of the 1961 Act, as amended, which is almost identical to the real issue in the instant case. Kearns P. was quite adamant that the application could not succeed, and that the appropriate remedy was by way of an appeal. See also Flynn v. District Judge Kirby (Unreported, High Court, 19th December, 2000, O’Higgins J.).

70. I respectfully agree with these decisions and would only add the observation that in rare cases, it may be possible to mount a judicial review challenge, even where an appeal may be an option, where the proceedings have been so fundamentally flawed as to breach an important tenet of natural or constitutional justice: Sweeney v. District Judge Brophy and The Director of Public Prosecutions [1993] 2 I.R. 202. Nothing remotely of this kind has occurred in this case. In my view therefore, the appellant, having lodged a notice of appeal, should have pursued that remedy, and should not have embarked upon these proceedings.

71. For the above reasons I would dismiss this appeal.


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