Manson v. O'Donnell [2000] IEHC 7 (27th January, 2000)

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1. The Applicant applied ex-parte to the High Court on 15th June, 1998 to apply by way of Judicial Review for Orders of Prohibition and Discovery. It was ordered by Mr. Justice Barr on that date that the Applicants have leave to apply by way of Judicial Review for the reliefs set out in the statement required to ground application for Judicial Review at paragraph D, on the ground set forth in paragraph E thereof. Initially the reliefs sought are Prohibition and Discovery and were on the schedule of documents exhibited in the Affidavit grounding the application. The High Court also ordered that all proceedings involving the issues raised in this matter before the Court be stayed until final determination by this Court of the issues so raised. The grounds on which the relief is sought are as follows:-

(1) Prohibition by way of Judicial Review. The first named Respondent and the second named Respondent intends on 18th June, 1998 to deal with the charges against the Applicant being charges in relation to Section 49 of the Road Traffic Act, 1961 as amended despite the fact that submissions have been made to the first named Respondent in relation to the necessity to obtain information on discovery from the third named Respondent and that the first named Respondent and the second named Respondent will exceed their jurisdiction and act ultra vires their jurisdiction if they hear and determine the case..."

"(2) That the Applicant is entitled to have this case dealt with in due course of law in accordance with the principles of constitutional justice and fair procedures and that the principles of constitutional justice and fair procedures will be breached if the first or second named Respondents proceed to determine the case against the Applicant..."

"(3) The first and second named Respondents will breach the principles of fair procedures by determining the case against the Applicant herein without allowing the applicant to mount a full and complete defence to the charges raised against him by refusing to require the third named Respondent to have before the Court a person who is a servant and/or agent of the third named Respondent to hear evidence in relation to the apparatus used to ground the charge against the applicant therein."

"(4) The first named Respondent will act ultra vires his jurisdiction by determining the case against the Applicant without allowing the Applicant to obtain information necessary for his defence in relation to the charges against him and will breach the principles of fair procedures and constitutional justice particularly Article 30 of Bunreacht na Eireann and Article 6 of the European Convention on Human Rights so he can proceed to hear and determine the case against the Applicant in the absence of the information sought by the solicitors for the Applicant prior to the case from the third named Respondent."

"(5) The first and second named Respondents would have seriously prejudiced the defence of the Applicant by proceeding to determine the case against the Applicant on the 18th June, 1998 and will affect the rights of the Applicant and possibly impose liabilities on the Applicant without allowing the Applicant in the context of fair procedures and constitutional justice to mount the full defence to the charges against him."

"(6) The first and second named Respondents will fail to comply with the principles of natural and constitutional justice and basic fairness of procedures at the Applicant's solicitors request that the apparatus used to ground charge against the Applicant that its history, calibration and use be formally proved by a servant and/or agent of the third named respondent and a witness from the third named respondent has not been allowed to attend the court for the purpose of giving evidence in this regard and this is in breach of the applicant's right to constitutional justice, fair procedures and due process."

2. The third named Respondent will breach the principles of constitutional natural justice and fair procedures if it fails to provide the information sought for the defence of the Applicant of the charge against him currently before Letterkenny District Court on 18th June, 1998 as such information is relevant, germane and essential for the defence of the Applicant and the third named Respondent has refused voluntary discovery of the information sought as set out in the schedule referred to in the Affidavit herein and as such has breached the principles of constitutional justice, fair procedure and natural justice".

4. The application is primarily based on the Affidavit of the Applicant's solicitor, Mr. P.A. Dorrian, with exhibits therein and he verifies the facts in the statement required to ground the application for judicial review; and the Affidavit of Superintendent Kevin Lennon. Mr. Dorrian gives a history of the proceedings. It would appear that on 6th February 1996 this matter came before the then District Judge of the District of Donegal, namely, Judge Liam McMenamin, now sadly deceased. Mr. Dorrian made submissions in relation to the alcolyser, breathalyser and other equipment used in relation to the charge which the Applicant is facing. He sought full details of the use of calibration, approval and certification and testing history and origin of the apparatus used for the purposes of the defence of the charge. Judge McMenamin adjourned the matter to consider it and to enable the D.P.P. to take instructions on the matter. The second named Respondent refused to co-operate. Judge McMenamin suggested that the subpoena should issue to the servants and the agents of the third named Respondent. However, Mr. Dorrian objected because then the witnesses would be for the defence and could not be cross-examined and that perhaps the Court itself would summon the third named respondent to produce before the Court the relevant witnesses.

5. Unfortunately, Judge McMenamin died and the matter thereafter came before District Judge Fitzpatrick. Mr. Dorrian avers that Judge Fitzpatrick directed the second named Respondent's representative to have present before him the relevant witness from the third named Respondent to deal with issues raised by Mr. Dorrian in relation to the defence of the Applicant. The second named Respondent's representative refused to have a witness present and the third named Respondent has since refused so to do. Unfortunately, there is no note or Order in respect of what was done by Judge McMenamin or Judge Fitzpatrick. The District Court became a Court of Record after the time of Judge McMenamin. However, normally the decision of the District Court could be gleaned from the certified copy of the Judge's notebook.

6. There is no note from the Judge's notebook in the case of Judge McMenamin and no Order made by Judge Fitzpatrick. Mr. Dorrian complains that the present Judge, namely, Judge John O'Donnell who failed to abide by the direction of Judge Fitzpatrick and the prosecution have complained that Judge Fitzpatrick's "Order" was a wrongful interference by him in purporting to direct the prosecution in its proofs.

8. The amount of documentation requested is enormous and Counsel did not attempt to stand over it. It is contained in the Exhibit D of said Affidavit. Counsel suggested that the Court might redesign it. But that is not normally a function of the Court.

9. Superintendent Kevin Lennon in his Affidavit states that the Applicant herein was arrested by Garda Masterson at 2.28 a.m. on the 9th of October, 1995 at Coolyslin, Co. Donegal. He was taken to Lifford Garda Station where Dr. McGroary took a urine sample. The Applicant was charged on 9th October, 1995 for an offence under Section 49(1) of the Road Traffic Act, 1961 (as amended) and was released on his own bail of £100 to appear at Lifford District Court on 7th November, 1995. Subsequent analysis of the urine sample by the Medical Bureau of Road Safety showed a concentration of 228 mgs of alcohol per 100 mls of urine.

10. On 7th November, 1995 the case was adjourned to 5th December, 1996 at the request of the Solicitor for the Applicant and a summons was served on the Applicant in the meantime for offences under Section 49(3) and Section 53 of the Road Traffic Act, 1961 (as amended) arising out of the initial arrest on 9th October, 1995.

11. On 6th February, 1996 the case was adjourned to 5th March, 1995. On 5th March, 1996 the case was adjourned to 2nd April, 1996 on the application of the defence and the case was marked peremptory against the defence for this date. On 2nd April, 1996 the case was adjourned to 7th May, 1996. On that date evidence was given by a Jason Loan who was a witness in the case and the case was adjourned until 4th June, 1996. On 4th June, 1996 the case was further adjourned until 2nd July, 1996 and on 2nd July, 1996 the case was further adjourned until 3rd September, 1996. On 3rd September, 1996 the case was adjourned to 1st October, 1996. On 1st October, 1996 the case was adjourned to 5th November, 1996. On 5th November, 1996 the case was adjourned to 28th November, 1996 made peremptory against the defence. On 28th November, 1996 the case was adjourned until 4th February, 1997. On 4th February, 1997 the case was adjourned to 1st July, 1997 with an Order that all civilian witnesses were required again as there was to be a new Judge.

12. On 1st July, 1997 the case was adjourned to 7th October, 1997. On 7th October, 1997 the case was adjourned to 2nd December, 1997 to enable a decision to be made on the alcolyser issue raised by the defence. On 2nd December, 1997 the case was adjourned to 6th January, 1998 again pre-emptory against the defence.

13. On 6th January, 1998 the case was adjourned to 26th February, 1998 for hearing. On 26th February, 1998 the case was adjourned to 19th March, 1998 for hearing. On 19th March, 1998 Mr. P.A. Dorrian, Solicitor for the defence sought an adjournment to obtain an Order in the High Court for discovery of documents in the possession of the Medical Bureau of Road Safety relating to the testing of blood urine kits and alcolysers. Mr. Dorrian also indicated that he would be calling the following witnesses to the District Court on 11th May, 1998 for hearing:-

15. The aforesaid uncontradicated history of the case is contained in the Affidavit of Superintendent Kevin Lennon. He concludes his history by stating that on 11th May, 1998 the case was not reached and was adjourned until 2nd June, 1998. On 2nd June, 1998, the case was adjourned until 25th June, 1998 for mention only. On 25th June, 1998, the case was adjourned until 2nd July, 1998 for Mr. Dorrian to show proof to the Court that he had applied to the High Court for an Order of Prohibition. On 2nd July, 1998, proof of lodgement of the papers to the High Court by Mr. Dorrian was produced and the case was adjourned to 23rd July, 1998. On 23rd July, 1998, the case was adjourned to 14th September, 1998 and remains adjourned awaiting the outcome of these proceedings.

16. Superintendent Lennon states that it is the intention of the Director of Public Prosecutions to prosecute the Applicant before the first named Respondent for breaches of Section 49 of the Road Traffic Act, 1961 (as amended) and for dangerous driving contrary to Section 53 of the Road Traffic Act, 1961 (as amended).

He added that the presumption provided for under Section 12(4) of the Road Traffic Act, 1994 may be rebutted whether by cross examination or evidence in chief tendered by the Applicant. He further argues that it is not the function of the Director of Public Prosecutions as Prosecutor to produce evidence in relation to issues presumed under the Act and that it is a matter for the Applicant and his legal advisers to assemble and tender evidence and to cross examine in order to rebut the presumptions provided for under the Road Traffic Acts in prosecutions of this kind. He further argues that if it were obligatory on the prosecutor to make discovery and/or to produce witnesses in cases of this kind in every District Court within the State at the request of the Defendant in proceedings under Section 49 of the Road Traffic Act, 1961, in effect it would become largely inoperative. He does not accept that the alcolyser equipment was defective and points out that as a result of the analysis of the Applicant of the urine sample that surely there is no real issue in these proceedings as to the reliability of the alcolyser equipment. He also states that he is advised by the arresting member, Garda John Masterson, that he will give evidence that he smelled intoxicating liquor from the Applicant and formed the opinion that he had consumed an intoxicant which is why he tested the Applicant on the alcolyser apparatus which indicated a positive result."

18. It would appear from a newspaper cutting that Judge Fitzpatrick asked the Director of the Medical Bureau of Road Safety to appear before him and he did not. However, the learned District Judge did not then proceed to issue a subpoena against him. The Respondents have filed a statement giving grounds of opposition which reads as follows:-

6. The Applicant and his legal advisers have full and adequate compulsory powers to secure the attendance of any witness and any document necessary for their defence pursuant to the provisions of the Rules of the District Court and prima facie the onus of producing before the District Court any witness or document deemed desirable or necessary for the conduct of the Application's defence lies upon the Applicant and his legal advisers.

8. Without prejudice the foregoing if the Applicant seeks to raise before the District Court issues concerning the history, calibration and use of an alcolyser, it is up to the Applicant and his legal advisers to demonstrate the relevance of the said evidence and to procure the presence of witnesses and of other material evidence before the Court.

9. If the second named Respondent fails to prove the prosecution against the Applicant beyond reasonable doubt it is the duty and function of the first named Respondent to dismiss the case against the Applicant. If the Applicant wishes to put any matters in issue, he may do so by submission, by cross examination of the prosecution witnesses and by producing admissible evidence in his defence if he elects so to do.

11. Furthermore, the Applicant's case in so far as it concerns the alcolyser used to detect the presence of alcohol in the Applicant's breath must be viewed in the light of all the available evidence including the observations of the Gardai at the time of the Applicant's arrest under Section 49(1) of the Road Traffic Act, 1961 (as amended) and the subsequent analysis of the Applicant's urine sample showing a concentration of 228 mgs alcohol to 500 ml of urine.

12. The application for judicial review by way of prohibition in these proceedings is calculated to deprive the first named Respondent of his jurisdiction to hear and determine the proceedings commenced by the second named Respondent, against the Applicant herein and to anticipate the substance of these proceedings and to oblige the first named Respondent to conduct the proceedings in a manner determined by the Applicant and to userp the function of the first named Respondent in relation to the conduct of the case, the admission of evidence and the summonsing of witnesses to the Court.

13. Without prejudice in the foregoing, the application for leave to obtain an order of judicial review is misconceived and premature and ought as a matter of discretion to be refused so as to permit the prosecution instituted by the second named Respondent to continue and so as to permit the first named Respondent to conduct the case in accordance with law.

14. Without prejudice to the foregoing, it is submitted that the High Court has no jurisdiction to order discovery in relation to proceedings before the District Court. The third named Respondent is not obliged to furnish evidence to the District Court in respect of the prosecution against the Applicant unless ordered so to do by the District Court.

2. While there were undoubtedly legal arguments and discussions, there is no evidence that Judge McMenamin or Judge Fitzpatrick made an Order. Judge McMenamin presided before the District Court was made a court of record but normally the judge's notebook could be relied upon. Since the Court became a Court of Record, Judge Fitzpatrick would have made an Order. There is no such evidence presented to this Court. In fact, it is not really seriously contended that the current District Judge is attempting to overrule or reverse a decision of one of his predecessors.

3. In our system, there is a presumption of innocence in favour of all persons being prosecuted. There have been many good lawyers (and in the District Court they were mainly solicitors) who raised technical points particularly in relation to drunken driving and road traffic act offences and licensing offences. Many of the legal points were brilliant, original and logically compelling. For practical reasons the legislature has seen fit to create presumptions in some criminal cases.

4. In this case, the Respondents rely on Section 12 of the Road Traffic Act, 1994. It shall be presumed until the contrary is shown that an apparatus provided to a member of An Garda Siochana is for the purpose of enabling a person to provide a specimen of breath required pursuant to that section and is an apparatus for indicating the presence of alcohol in the breath. It is not alleged in these present proceedings that that section is contrary to the Constitution and therefore there is a presumption in favour of its legality.

5. The first named Respondent, who is the District Judge, has presently seisin of the matter but has not really embarked on the case. He has adjourned it on many occasions. It was also true as of now he has not directed the attendance of the Director of the Medical Bureau of Road Safety or his representative to appear in Court or indeed to compel such attendance by subpoena. However, the High Court will not interfere with his jurisdiction to consider all evidence before him. He will take such steps as he may deem necessary to ensure that he has all the facts and can be satisfied beyond reasonable doubt before he will convict. This application is very similar to a quia timet application. The solicitor for the defendant certainly deserves credit for his tenacity and clarity of argument but his fears are not justified at this time.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Manson v. O'Donnell [2000] IEHC 7 (27th January, 2000) URL: http://www.bailii.org/ie/cases/IEHC/2000/7.html Cite as: [2000] IEHC 7

High Court of Ireland Decisions

Manson v. O'Donnell [2000] IEHC 7 (27th January, 2000)