DPP v Freeman

MagicSean

I've been reading over this case and am trying to understand the following part of the decision

42. However, critically in this case, it has been accepted in argument by the Director that there was not available before the District Court any other evidence in relation to the accuracy of all the contents of the certificate including the readings. In such position therefore I do not think it appropriate to remit the matter back to the District Judge to hear further evidence. I must approach the matter only in the light of evidence and facts as found by the District Judge and ultimately in the context of a decision of this court precisely on the point.

Full text: http://www.courts.ie/80256F2B00356A6B/0/F0860AE35421109B802575BD003CFE03?Open&Highlight=0,freeman,~language_en~

My understanding of this is that if the intoxalyser garda had not signed the section 17 statement before the defendant it is not duly completed under the Act and is not admissable. However if the Garda had somehow noted the reading in his evidence before the court the authenticity of the statement can be established in this way. AM I completely misreading this part? It seems to be leaving a large door open for the prosecution.

speedfight

Hi K-mac

I have read this judgment and it appears to me that had the prosecution called evidence that the Garda had complied with all the procedural requirements which the Road Traffic Act obliges him to, then no certificate need be produced in the absense of evidence to the contrary.

The Certificate gives the prosecution/Gardai an evidential advantage where there is in existance a duly completed certificate. Here there was not. The prosecution could have, in the District Court lead evidence of Garda Dempsey that he had complied with the procedure laid down in the RTA. The Section merely allows the prosecution to avoid this by showing a valid duly completed certificate is in existance.

If there is some element not complied with by the Gardai then obviously that vitiates the presumption and new evidence will be needed.

Any presumption can be vitiated by evidence so therefore you are correct.

I note that you are suggesting that the prosecution get an easy hand in this. Your previous posts have been rather right wing. You changing sides now?

Reloc8

The High Court Judge is noting that a certificate which is not 'duly completed' as provided for in the Statutory Instrument is not, as a matter of law, sufficient evidenceon its own of the matters stated therein. Section 21 is as follows :-

"A duly completed statement purporting to have been supplied under section 17 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 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 section 17 (2) of such statement."

If the statement is not duly completed it is not 'sufficient evidence of compliance by the member with the requirements imposed upon him etc...' nor is it 'sufficient evidence of the facts stated therein'. One of the facts stated therein is that the alcohol concentration of the sample is at a certain level.

What the High Court Judge is saying is that just because the s. 17 certificate is not sufficient evidence does not preclude the prosecution from proving the concentration of alcohol was accurate as stated by the certificate in another way. i.e. the fact that it is not 'sufficient evidence' does not mean it has no evidential standing whatsoever.

That is certainly so as a matter of legal logic.

However, it is difficult (impossible ?) to come up with what further evidence that the certificate is accurate could plausibly be called by the prosecution to supplement their case in the event of their being an error in the cert being completed, and the evidence reflecting this. Evidence that the machine was calibrated correctly and functioning properly could come under this head, but the servicing of those machines is of course not a daily occurence and proof that it functioned a month correctly a month prior might not relate sufficiently to the test in question. But if you had a technician who examined the machine immediately or shortly after the test perhaps that would suffice.

The point is really that the intoxylser process could really not be simpler in operation and all that is required on this particular issue is that the bloody cert be filled in properly and evidence given to this effect. This obviates the need for the prosecution to go through what would otherwise be complicated matters of fact and law to prove the offence. Obviously everyone is human and mistakes can happen. The point of defence which came home in this case is statistically not frequent.

Further, the practical opportunity for the prosecution to address the evidential defect in the event of non-compliance with the statutory requirements is minimal as this error will often come to light only as the evidence is given at hearing (accepting that in some circumstances an adjournment will be granted during the prosecution case but this is very rare, as opposed to the opportunity to call rebuttal witnesses from something positively asserted by the defendant in evidence).

I think there might be scope to call evidence of a certain kind which the High Court Judge was effectively inviting the prosecution to try in the future where this happens, however I don't believe I am going to give any details of that here

(I don't think kmac is changing sides btw I think he's hoping that the door is indeed ajar arising from this decision ))

Jo King

Reloc8 wrote: »

T

What the High Court Judge is saying is that just because the s. 17 certificate is not sufficient evidence does not preclude the prosecution from proving the concentration of alcohol was accurate as stated by the certificate in another way. i.e. the fact that it is not 'sufficient evidence' does not mean it has no evidential standing whatsoever.

The learned judge is saying that the S17 certificate is of no evidential value as far as the reading and compliance with the procedures required for the obtaining of a sample. What he means is that other means of proving the elements offence might be admissible and might ground a conviction if they were sufficient.