High Court quashes District Court acquittal where defence evidence failed to displace statutory presumption of breath test accuracy.

Neutral Citation Number: [2005] IEHC 327

THE HIGH COURT

[2005 No. 530 S.S.]

IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED

PURSUANT TO SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857

AS AMENDED AND EXTENDED BY THE PROVISIONS OF THE

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

JOHN BOURKE

RESPONDENT

Judgment of Quirke J. delivered the 21st day of October, 2005.

This is an appeal by way of Case Stated by Judge Mary C. Devins pursuant to s. 2 of the Summary Jurisdiction Act 1857 (as extended

by s. 51 of the Courts (Supplemental Provisions) Act 1961) on the application of the appellant who was dissatisfied with the

determination of the learned District judge as being erroneous in point of law.

FACTUAL BACKGROUND

1. The respondent appeared before the learned district judge at Castlebar District Court on 20th November, 2002, charged with the

commission of an offence contrary to s. 49(4) and (6)(a) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act

1994.

2. The charge arose out of an incident on 4th August, 2005, when the respondent was arrested by Garda Martin McHugh who had

formed an opinion that the respondent was committing or had committed an offence under s. 49(2), (3) or (4) of the Act of 1961.

3. Having complied with all relevant statutory requirements Garda McHugh, pursuant to the provisions of s. 13(1)(a) of the Road

Traffic Act 1994 required the respondent to provide two specimens of his breath. The respondent complied with that request.

The Intoxilyzer which records the concentration of alcohol present in human breath printed two identical statements indicating that

there was a concentration of 39 microgrammes of alcohol per 100 millilitres within the breath sampled.

4. The terms of s. 17 of the Road Traffic Act 1994 were then fully complied with by Garda McHugh. The respondent acknowledged

receipt of the statements by placing his signature upon each and by returning one statement to Garda McHugh.

5. At the hearing before the learned district judge on 20th November, 2002, the evidence adduced on behalf of the appellant included

and was reliant upon the printed statement produced pursuant to the provisions of s. 17 of the Act of 1994 and signed by the

respondent. The statement provided inter alia that both breath specimens provided by the respondent pursuant to s. 17 of the Act of

1994 had been provided at 2.14 am on the 4th August 2005.

6. At the conclusion of the evidence adduced on behalf of the appellant the respondent’s solicitor requested the learned district judge

to dismiss the charge submitting that it was not possible for the Intoxilyzer to analyse two specimens of breath and to purge the

machine within a 60 second period.

He further submitted that if that was possible, then the printed statement should have recorded, on its face and shown in minutes

and in seconds, when each precise function was performed by the machine.

7. At the request of the appellant the learned district judge adjourned the proceedings to enable the appellant to adduce additional

evidence. On 20th October, 2003, a Ms. Catherine Pauline Leavy from the Medical Bureau of Road Safety testified in the proceedings.

She provided the court with details concerning the supply, approval, and testing of the Intoxilyzer.

8. In evidence she indicated that the Bureau’s scientists had, at her request, carried out tests on 28th January, 2003, in controlled

laboratory conditions. These tests had demonstrated that it was possible to obtain two breath specimens in under 60 seconds. She

indicated that this allowed a minimum of 7 or 8 seconds for the provision of the first specimen, a further 30 seconds which she

described as a “clearing period” and the further 7 or 8 seconds for the provisions of the second specimen.

She confirmed that the machine was not programmed to report times in minutes and seconds.

9. Having heard further submissions and considered the evidence the learned district judge decided that “…there was sufficient

rebuttal of the presumed ‘prima facie’ evidence on the face of the statement supplied pursuant to s. 17 of …” the Act of 1994. She

dismissed the charge.

10. She has sought the opinion of this court as to whether or not she was correct in law in so doing.

RELEVANT STATUTORY PROVISIONS

Section 17 of the Act of 1994 identifies the procedure which must be followed after provision of a breath specimen pursuant to s. 13

of the Act. It provides (at subsection 2 thereof) that:

“Where the apparatus referred to in section 13(1) determines that in respect of the specimen of breath to be taken into

account as aforesaid the person may have contravened section 49(4) or 50(4) of the Principal Act, he shall be supplied

forthwith by a member of the Garda Síochána with two identical statements, automatically produced by the said

apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the

concentration of alcohol in the said specimen determined by the said apparatus.”

Section 21 (1) of the Road Traffic Act 1994 provides as follows:

“The duly completed statement purporting to have been supplied under s. 17 shall, until the contrary is shown, be

sufficient evidence in any proceedings under the Road Traffic Act 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 member of the Garda Síochána concerned with the requirements imposed on

him by or under this part prior to and in connection with the supply by him pursuant to s. 17 (2) of such statement.”

It follows from the foregoing provisions that when a statement provided in accordance with the provisions of s. 17 of the Act of 1994

is proved in evidence it is presumed to be genuine and accurate. That presumption may only be displaced by way of evidence to the

contrary adduced on behalf of the person accused.

Once the statement has been proved in evidence the onus of proof shifts from the prosecution to the accused (see Director of Public

Prosecutions v. Tony Corcoran), (Unreported, High Court McCracken J., 22nd June, 1999).

In Director of Public Prosecutions v. Collins [1981] I.L.R.M. 447 an accused person was convicted in the District Court of an offence

pursuant to the provisions of s. 49(2) of the Road Traffic Act 1961 as amended – i.e. driving a mechanically propelled vehicle in a

public place when the concentration of alcohol in his blood exceeded the permitted level.

He appealed to the Circuit Court where the judge stated a case for the opinion of the Supreme Court. He asked inter alia:

“3. Was the conviction invalidated by the presence of an unspecified white substance in the containers in which the

blood specimens were put?

Henchy J. in reply, observed (at p. 452) that:

“While the legal or persuasive burden of proof in a criminal case rests on the prosecution (save where a statute provides

otherwise), the prosecution will have discharged their evidential burden if they have adduced sufficient evidence to raise

a prima facie case against the accused. The prosecution did so in this case. The certificate issued by the Bureau under

s. 22 of the 1978 Act is declared by s. 23(2) to be sufficient evidence of the facts certified to in it until the contrary is

shown. One of the facts certified to in the certificate produced in this case is that the specimen of blood (not the

specimen of blood together with the accompanying substance) had the certified concentration of alcohol in it. The

evidential onus of showing the analysis was at least capable of being rendered false by the unspecified white substance

therefore passed to the defendant.

The mere suggestion of Counsel for the defendant that the unspecified white substance could possibly have produced a

false analysis to the extent of showing the offence charged to have been committed, when in fact it had not been

committed, is not sufficient to discharge the evidential burden of proof which lay on the defendant as to this issue. To

suggest that something may have happened, or may have produced a particular result, is one thing; to adduce evidence

pointing in the direction of that possibility is another matter. The law acts on the latter, but not on the former. Where,

as in this case, the prosecution has adduced evidence showing the existence of all the evidence necessary for the

commission of the offence, and the defence wish to controvert or cast the necessary doubt on the prosecution case by

suggesting the existence of a factor which would justify the acquittal the evidential burden as to that factor passes to

the defence.”

He continued:

“In the instant case, before Counsel’s suggestion could be given serious consideration as a defence, or be deemed to fit

to be submitted to the jury as a defence if the charge was being tried with the jury, the defence should have adduced

admissible evidence that a white substance of the kind and in the quantity found in the container could have falsified the

certified analysis in the way suggested. And even if such evidence had been adduced, the prosecution would have been

entitled to give rebutting evidence. But since no evidence on the matter was brought forward by the defence, I would

rule that the analysis and therefore the conviction, were not invalidated by the presence of the unspecified white

substance.”

In the instant case the statement supplied pursuant to s. 17 of the Act was adduced in evidence.

On its face it identified the respondent and continued:

“The concentration of alcohol in the breath for the purposes of …(s. 49 ) of the Road Traffic Act 1961…is 039

microgrammes of alcohol per 100 millilitres of breath.”Both breath specimens were recorded as having been provided at

2.14 am.

The learned district judge dismissed the charge preferred against the respondent on the ground that “…the face of the statement

supplied pursuant to s. 17…” of the Act contained “sufficient rebuttal of the presumed ‘prima facie’ evidence …”.

It was not open to her to dismiss the charge on that ground.

The only information contained on the face of the certificate was information comprising evidence consistent with and supportive of

the appellant’s case against the respondent.

It has been argued on behalf of the respondent that the evidence adduced by Ms. Catherine Pauline Leavy on behalf of the appellant

was sufficient to raise a doubt within the mind of the learned district judge sufficient to displace the presumption created by s. 21 (1)

of the Act of 1994.

I do not accept that contention. The Case Stated by the learned district judge does not indicate that the evidence adduced by Ms.

Leavy was in any respect inconsistent with the information contained upon the face of the certificate or cast doubt upon the

accuracy of that information.

Mr. Crowley on behalf of the respondent submitted that it was not possible to analyse two specimens of breath within a 60 second

period. That was no more than a suggestion. As such it was insufficient to displace the presumption created by s. 21 (1) of the Act

of 1994. The suggestion was not accepted as valid by Ms. Leavy when she testified. The evidence of Ms. Leavy cannot accordingly

be deemed to have displaced the presumption and indeed in the Case submitted the learned district judge did not say that it did. She

concluded that she should dismiss the charge by virtue of the provisions on the face of the statement. I do not believe that such a

conclusion was warranted.

It is important to add that the displacement of the presumption created by the s. 21 (1) of the Act of 1994 will not automatically

result in an acquittal. In cases where the presumption has been displaced the court must then go on to consider all of the evidence

adduced by the parties and may convict if satisfied of the accused’s guilt on the evidence and beyond a reasonable doubt.

It follows from the foregoing that it is the opinion of this court that the learned district judge was not correct in law in dismissing the

charge.

Accordingly the case will be remitted back to the District Court.