A man’s conviction for drink driving was correctly overturned because the prosecuting garda signed two statutory statements immediately after the accused signed them rather than before him, the Supreme Court has held in a majority ruling.
The appeal by the Director of Public Prosecutions (DPP) failed because a 2014 “letter of the law” Supreme Court decision was binding in this case.
The court of five judges split in its decision with three agreeing with a 2014 oral decision, delivered by a three-judge Supreme Court, that the statements were not admissible evidence due to the error. Ruling for the majority, Ms Justice Iseult O’Malley said it is clear the garda’s sequencing error had “absolutely no effect on the rights of the defendant to a fair trial”.
She noted the 2014 ruling has been regarded by the court as “at the far end of the spectrum of insistence on the letter of the law”. She would not want to see its analysis extended by analogy to cases with different facts and a different legislative decision.
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It was possible to interpret the statute and regulations differently to the 2014 decision, but she could not say the 2014 interpretation was “clearly wrong”, she said.
The conditions for overruling a prior decision of the Supreme Court were not met in this appeal, she held. Mr Justice Brian Murray and Mr Justice Maurice Collins agreed with her findings.
Dissenting, Mr Justice Gerard Hogan, supported by Mr Justice Peter Charleton, held that the 2014 judgment was “clearly wrong”, such that the Supreme Court was free to depart from it.
He found that in 2014 the three-judge court failed to engage with earlier authorities and gave a decision at odds with general principles established in earlier and subsequent case law.
In this appeal, Mr Justice Hogan said, he would have ruled in the DPP’s favour and found the statutory certificate valid where the incorrect sequencing was no more than an “immaterial technical slip” and a “harmless error”.
The DPP’s appeal asked the court to interpret the legal effect of a garda’s admitted failure to “duly complete” two identical statements produced by a breathalyser machine “in the prescribed manner”. The garda did not sign the statements before the accused, as required by the 2010 Act, and instead signed them immediately after the accused.
The error occurred ahead of the man’s District Court conviction for driving while under the influence of an intoxicant contrary to section 4(a) and (5) of the 2010 Road Traffic Act. The conviction was that, within three hours of driving, he exceeded the legal maximum of 22 micrograms of alcohol per 100 millilitres of breath.
The man appealed and a Circuit Court judge asked the Court of Appeal to determine which Supreme Court decision he was bound by, with the answer being the 2014 oral judgment. The Supreme Court has now upheld this finding.
In the court’s lead judgment, Ms Justice O’Malley noted the court has the power to overrule one of its earlier decisions where it is convinced the judgment was erroneous.
In the appeal the DPP accepted a breach of statutory procedures but contended that a court considering admissibility of the statement should factor in whether the garda’s error has caused any prejudice or breach of fair trial rights. It urged the court to find that a 2017 Supreme Court five-judge written decision should be followed over the 2014 oral ruling.
Ms Justice O’Malley concluded that the 2017 decision did not purport to overrule any earlier authority, while the facts of the 2014 case were “identical” to those in this appeal. She noted the legislature has not taken up the court’s suggestion that it is possible to make provision for dealing with minor errors such as this. She dismissed the appeal.
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