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1. This is a Consultative Case Stated sent forward to the High Court by Judge Murrough B. Connellan sitting at the Dublin Metropolitan District Court. Two questions of law are asked in the Case Stated and they arise out of a prosecution for an offence under Section 13(3) of the Road Traffic (Amendment) Act, 1978 as amended by Section 5 of the Road Traffic (Amendment) Act, 1984. The precise charge in the summons was that the Defendant on the 21st May, 1992 at Terenure Road East in the said district, being a person arrested under Section 49(6) of the Road Traffic Act, 1961, and brought to a Garda station having been required by Fergal O'Brien, a Member of the Garda Siochana, pursuant to Section 13(1) of the Road Traffic (Amendment) Act, 1978 to permit a designated Registered Medical Practitioner to take from her a specimen of her blood or, at her option, to provide for the designated Registered Medical Practitioner, a specimen of her urine, did fail to comply with the said requirement contrary to Section 13(3) of the Road Traffic (Amendment) Act, 1978 as amended by Section 5 of the Road Traffic (Amendment) Act, 1984.

2. It is not necessary to set out in this judgment the facts proved. It is sufficient to state that the evidence established in accordance with Section 13 of the 1978 Act that Garda O'Brien required the Defendant either to permit Dr. Maloney to take from her a specimen of her blood or, at her option, to provide for Dr. Maloney a specimen of her urine, that the Guard "outlined in plain man's language to the Defendant the consequences of her failure to comply with the said requirements" and that the Defendant refused to comply with the said requirement.

3. Counsel for the Defendant argued that his client was entitled to an acquittal because although the evidence may have established a "refusal" it did not establish a "failure". Counsel submitted that there was no charge or accusation of refusal in the summons but only of a failure. It was argued in the District Court and again before this Court that different considerations would have to apply to a failure as opposed to a refusal and that evidence of a refusal would necessarily involve a cross-examination which would substantially differ from the cross-examination had the evidence been that of a failure as set out in the charge.

4. Both in the District Court and in this Court, Counsel on behalf of the Director of Public Prosecutions submitted that Section 13(3) of the 1978 Act created one offence and evidence of refusal was sufficient so as to enable the Defendant to be convicted in respect of the offence for which she was charged, i.e. the offence of failure. At the request of the Defendant, the learned Judge of the District Court posed the following questions for the determination of this Court:

5. The two questions as posed involve essentially the same question of law which is in turn a question of interpretation of the Act. Strange as it may seem, there is apparently no decided case on the point and Counsel for the Director of Public Prosecutions concedes in her written submission that the issue falls to be decided on first principles. As I understand it, over the years, summonses have taken different forms and, quite frequently, it was the practice for the Director of Public Prosecutions to charge individuals with an offence of refusal or failure to comply with the requirement but the point being taken is that, in this case, the Defendant was charged with failure only. I think it useful at this juncture to set out the terms of the Section which are as follows:

6. As I have already indicated, Mr. Antoniotti, Counsel for the Defendant, argues that the Section creates two different offences, the offence of refusal and the offence of failure. He relies by way of analogy on Section 38 of the Offences Against the Person Act, 1861 which created the offence of assaulting, resisting or obstructing a peace officer in the due execution of his duty. He says (correctly) that that Section created three different offences and that an accused charged with one could not be convicted of one of the others. I am afraid that I cannot agree that there is any analogy. Section 38 is outlawing three distinct forms of misbehaviour. Section 13 of the Road Traffic (Amendment) Act, 1978 is not, in my view, doing any such thing. I agree with the argument of Ms. Egan, Counsel for the Director of Public Prosecutions, that the Section creates one offence only and that in essence it is the offence of non-compliance with the requirement. It is to avoid possible loopholes and strained interpretations of the Section that the words "refuse or fail" are used. If the Section had merely used the word "refuse", an argument might have been made, but probably would not be accepted, that in a case where a defendant expressly stated that he was agreeable to a blood test after the requirement was made but then did not in practice permit it, might not be guilty of an offence. The point might be taken that he did not actually refuse. By the same token, if the Section had contained the word "fail" only, it might have been argued that merely saying "No" did not constitute failure. That, of course, is the argument being put forward in this case. In my view, it was to avoid the danger of either of these arguments being accepted that the Section has been worded in the particular way it has. A further possible loophole of course has been covered by Section 13(3)(b). It is possible to conceive of the situation where a person does not refuse to comply with the requirement as such and purports to provide a specimen but does it in some manner which renders it useless for the purpose for which it is required. There is therefore the further requirement in the Section that the requirements of a designated Registered Medical Practitioner in relation to the taking of the specimen be complied with. The purpose of the Section when read as a whole therefore is to ensure that either a blood or urine sample will be provided in such a form that it is testable.

7. In this case, the Defendant flatly refused to permit any sample to be taken. In plain English, that attitude constituted not merely a refusal but also a failure. I see no reason to depart from the plain English meaning in regard to what I believe is the purpose of the wording in the Section. The only conceivable support for the Defendant's case is in what is little more than a passing sentence in the judgment of Finlay C.J., giving the unanimous judgment of the Supreme Court in DPP -v- Hand , unreported judgment delivered 10th November, 1992. That was a case in which there was no refusal and the charge was apparently confined to failure. In the context of distinguishing it from the case of DPP -v- McGarrigle , judgment of Supreme Court delivered 22nd June, 1987 by Finlay C.J., the former Chief Justice made the point that the Defendant, Mr. Hand, did not refuse and had not been charged with refusing. But I do not think that those dicta lend any support to the view nor do I think that the former Chief Justice was intending to convey that there are two quite separate offences, the offence of refusing and the offence of failure. If in fact the non-compliance with the requirement takes the form of a refusal, then as a matter of fair procedures, the requirements of McGarrigle's case must be complied with. But, in this case, it would appear that those requirements were in fact complied with.

8. It would seem to me that the logic of the Defendant's argument is that where there has been an express refusal after the requirement has been made, an offence has immediately been committed irrespective of whether in actual fact subsequent to that refusal the Defendant does comply with the requirement. That would be an absurdity and was certainly never intended by the Oireachtas. The offence consists of the non-compliance with the requirement and that, of course, can take the form of an express refusal in which case there is both a refusal and a failure or it can take the form of non-compliance with the requirement notwithstanding that the Defendant had agreed to comply with the requirement. In the latter case, it would be more appropriate to use the word "fail" in the summons rather than "refuse".

9. I would answer the two questions as follows: