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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Daly [2001] IEHC 228 (20 December 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/228.html Cite as: [2001] IEHC 228 |
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2001 No 2295SS
IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
AND IN THE MATTER OF A CONSULTATIVE CASE STATED IN THE PROCEEDINGS BEFORE THE DUBLIN DISTRICT COURT
BETWEEN
PROSECUTOR
ACCUSED
JUDGMENT of Mr. Justice Kelly delivered the 20th day of December, 2001
Introduction
On the 5th June, 2001 the accused Adrian Daly (Mr Daly) appeared before Judge Gerard Haughton at the Dublin Metropolitan District Court to answer an accusation laid against him by the Director of Public Prosecutions. Mr Daly was accused that on the 5th December, 2000, at Stillorgan Road in the Dublin Metropolitan District he drove a mechanically propelled vehicle while there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his breath exceeded a concentration of 35 mg of alcohol per 100 ml of breath, contrary to section 49(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by section 10 of the Road Traffic Act, 1994.
During the course of the case being dealt with by Judge Haughton a legal issue arose which has resulted in him stating this consultative case stated.
The Question
The question which has been posed by the District Court judge for the opinion of this court is
"whether it is necessary, having regard to the provisions of section 6(2) of the 1994 Road Traffic Act for the prosecution in a prosecution pursuant to section 49(4) of the Road Traffic Acts, 1961 to 1995 to prove that an apparatus purporting to determine the concentration of alcohol in an accused's breath is an approved apparatus in the sense of that term in the Road Traffic Acts, 1961 to 1995 and whether it is necessary for the prosecution to prove that the apparatus has been approved by the Medical Bureau of Road Safety."
It is necessary to set out the facts as found by the District Judge in order to understand how this question came to be posed.
The Facts
The following are the facts of the case as set out in the case stated.
On the 5th December, 2000 Garda Vance was on duty in the Donnybrook area, a public place, and was driving an unmarked garda patrol car fitted with a camera and video recording equipment. At approximately 1.40 am he was driving on the N11 leaving Donnybrook in the direction of Stillorgan when he observed a Jaguar motor car, registration number 96 D 3041, which was veering between the bus lane and the driving lane. The vehicle in question was changing lanes without indicating. Garda Vance turned on the flashing blue lights on the garda car and the Jaguar car pulled into the left of the carriageway.
Garda Vance spoke to the driver and asked him for an explanation as to his driving. The accused replied that he had been talking to his wife. Whilst speaking to Mr Daly Garda Vance got a smell of intoxicating alcohol from his breath. As a result of that he made a requirement under s. 12(1) of the Road Traffic Act, 1994 for Mr Daly to provide him with a specimen of his breath by exhaling into an apparatus designed for indicating the presence of alcohol in his breath. The garda explained to Mr Daly that if he refused or failed to provide a specimen of his breath that he would be liable on conviction to a fine not exceeding £1,000 or to imprisonment for a term of six months or both.
Mr Daly complied with the garda's requirement and gave a breath specimen which indicated that he had failed the breath test. At that point Garda Vance formed the opinion that Mr Daly had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled motor vehicle in a public place. He informed Mr Daly of his opinion and he told him that he was arresting him under s. 49(8) of the Road Traffic Acts, 1961-1995 for an offence under s. 49(1), (2), (3) or (4) of the said Acts. He explained to Mr Daly in ordinary language that he was being arrested for drunken driving. The time of the arrest was 1.48 am. Garda Vance then formally cautioned Mr Daly and asked him for his name and address which was given as Adrian Daly of Craughwell, Brighton Road, Foxrock, Dublin 18. Garda Vance then conveyed Mr Daly to Pearse Street garda station arriving there at 2.00 am.
At the station Garda Vance introduced Mr Daly to Garda Michael Quinn who was the member who would conduct an evidential breath test using the Lion Intoxilyzer 6000 on him.
Mr Daly was taken to Pearse Street station rather than Donnybrook station because there was no Lion Intoxilyzer 6000 at Donnybrook station. Garda Vance was present during the breath test. The introduction to Garda Quinn took place in the public office at Pearse Street station. Garda Vance was present during the subsequent breath test but took no part in it as that was the function of Garda Quinn. Whilst at Pearse Street station Mr Daly asked for a solicitor and was allowed to use a telephone for that purpose. All the accused's requests whilst in the station were complied with.
Garda Quinn was introduced to Mr Daly at 2.00 am on the 5th December, 2000 at Pearse Street station. Mr Daly was introduced as a person arrested on suspicion of drunken driving. Garda Quinn had a brief conversation with Garda Vance and introduced himself to Mr Daly. Garda Quinn informed Mr Daly that he was of the opinion that he had consumed an intoxicant. Mr Daly made a request to Garda Quinn for a drink of water at 2.30 am. This request was met. He drank the water.
Garda Quinn brought Mr Daly to the doctor's room in Pearse Street station at 2.47 am for the purpose of conducting an evidential breath test. Garda Vance was present in the room at the time. Garda Quinn informed Mr Daly that he was trained to operate the apparatus which was the Lion Intoxilyzer 6000. Garda Quinn showed the accused a new disposable mouthpiece which was in a sealed wrapper and he placed it on the machine without contaminating it. He did not touch the mouthpiece with his fingers as he used the wrapper to attach it to the apparatus. Garda Quinn described the mouthpiece as being a fresh and clean mouthpiece which was designed to allow breath to flow in one way only. He described this as a one way return valve into which the accused would exhale.
At 2.53 am Garda Quinn made a requirement pursuant to s. 13(l)(a) of the Road Traffic Act, 1994 that Mr Daly provide two specimens of his breath by exhaling into this apparatus designed for determining the concentration of alcohol in his breath. He indicated to Mr Daly that failure or refusal to comply with this requirement or failure or refusal to comply with the requirement in the manner as outlined by the police officer was a specific offence under s. 13 of the Road Traffic Act, 1994. He also pointed out that the penalty on summary conviction was a fine not exceeding £1,000 or a term of imprisonment not exceeding six months or both. This was explained to Mr Daly in plain language.
Garda Quinn outlined to the District Judge how he had inserted Mr Daly's details into the machine and informed the accused to exhale into the apparatus by placing his lips around the mouthpiece and exhale by first taking a deep breath and then exhaling into the apparatus until he was told to stop. Mr Daly complied with this requirement and the first successful breath specimen was provided at 2.55 am. The second successful breath specimen was provided at 2.56 am. Mr Daly had not consumed or smoked anything from the time he had met Garda Quinn save the glass of water which he had at 2.30 am.
Garda Quinn gave evidence to the District Judge which he accepted that the Lion Intoxilyzer 6000 automatically printed out two s. 17 statements which were identical. The garda separated each of these statements and signed them and each of these statements indicated to him that the concentration of alcohol was 42 mg of alcohol per 100 ml of breath. Garda Quinn handed both s. 17 statements to Mr Daly and explained to him that he could retain either of the statements at his option but that he was required pursuant to s. 17 to place his signature on each of the statements and that if he did not do so that he was committing an offence under s. 17 of the Road Traffic Act, 1994. The police officer explained to Mr Daly that the penalty for non-compliance with s. 17 was a fine of £500 or a term of imprisonment of up to three months or both. Both s. 17 statements were in Garda Quinn's view at all times and the accused signed both of the statements and handed one of them back to the police officer.
Garda Quinn entered the accused's details in the machine prior to making the requirement under s. 13(l)(a) of the Road Traffic Act, 1994. Garda Quinn had no control over the operation of the machine as he was merely its operator. There was a three minute time frame within which the breath specimen had to be provided. Gas was taken initially from the machine to ensure its operation. The machine needed a sufficient sample of breath in order to perform its function.
The prosecution did not prove by way of oral evidence or otherwise that the Lion Intoxilyzer 6000 had been approved by the Medical Bureau.
Having set forth the above facts the case stated went on to set forth the arguments which were made before the District Court.
The Arguments before the District Court
The case stated recites
"4. At the conclusion of the evidence counsel for the accused submitted that the prosecution had not proved its case in that there was no evidence before the court that the Lion Intoxilyzer 6000 was approved by the Medical Bureau of Road Safety pursuant to s.6(2) of the Road Traffic Act, 1994. Counsel submitted that the prosecution had no oral evidence on the point nor had they adduced into evidence any document from the Medical Bureau of Road Safety which was prima facie enough (sic) to satisfy the court that the particular machine was an approved device or apparatus. It was submitted that the Road Traffic Act of 1994 was silent on the point and that for all the court knew the Medical Bureau of Road Safety could have ten different machines in operation and the court was not to know which machine was an approved machine or which machine was an unapproved machine and that it created uncertainty.
I referred to s. 13(4) of the Road Traffic Act, 1994 and indicated that there was a difficulty in that while it introduced a presumption that the apparatus 'is an apparatus for determining the concentration of alcohol in the breath' it did not introduce a presumption that the apparatus is an approved apparatus. S. 6(2)(e) specifically required the Medical Bureau to arrange for the approval of apparatus for indicating the presence of alcohol in the breath and the apparatus for determining the concentration of alcohol in the breath and also to arrange for the supply and testing of this apparatus. There was a clear distinction in my view between the breathalyser kit used under s. 12 of the 1994 Act and the Lion Intoxilyzer 6000 in that the former merely indicated the presence of alcohol in the breath as an aid to forming an opinion under s.49(a) whereas the Lion Intoxilyzer 6000 and the statements produced form the basis of a conviction under s.49(4) of the Road Traffic Act, 1994. In the absence of any legislation or regulations concerning the operation and calibration of the Lion Intoxilyzer 6000 it was necessary in my opinion that proof be given of the fact that the particular machine was an approved apparatus within the meaning ofs. 6(2). I further referred to the provisions of s.21(3) which introduces a presumption where certificates are issued by the Medical Bureau in prosecutions for excess alcohol in the blood or urine, 'of compliance by the Bureau with the requirements imposed on it by or under this Part or Part 5 of the Act of 1968'. I indicated that it was my opinion that if this subsection is necessary to prove compliance by the Bureau with its obligations in cases relating to excess alcohol in blood an urine, that it was equally if not more essential for similar proof in the case of the Lion Intoxilyzer. In the former cases the accused has at least the option to take and have one of the two samples taken from him independently analysed whereas he has no such option in the case of the Lion Intoxilyzer.
5. The solicitor for the prosecution replied on the following grounds. There was evidence before the court that two s.17 certificates had been produced by the Intoxilyzer machine and that they were exact and identical in every regard and also the prosecution had to rely heavily on the presumption in s.21(l) of the 1994 Road Traffic Act which stated that duly completed statements purporting to have been supplied under s.17 shall until the contrary be shown be sufficient evidence in any proceedings under the Road Traffic Acts. The solicitor submitted that it was clear from the wording of the section and the decision of the High Court in the DPP v David Svron that the burden of proof in prosecutions of this nature shifted to the defendant. As regards the lack of approval of the Lion Intoxilyzer 6000 the solicitor referred the court to s.6(2) of the 1994 Road Traffic Act. This Section had also been opened by counsel for the accused who was of the view that its wording did not establish that the machine was an approved apparatus.
6. The solicitor for the prosecution referred the court to The State (Murphy) v Johnston [1993] IR 235 where it stated that proof of compliance with the provisions of Part V of the Road Traffic Act of 1968 (which deals with driving offences) did not appear to be necessary for a successful prosecution under s. 49 of the Road Traffic Acts and that s.21(l) of the Act came to the prosecution's assistance and in that regard this case was referred to in the judgment of the (sic) DPP v David Svron which was delivered by the High Court in 2001 and it was the only case on the use of the Lion Intoxilyzer apparatus. The solicitor also referred the court to a decision of the High Court in the case of Sterling Manson v O'Donnell & Ors which was an unreported decision of His Honour (sic) Mr Justice Kinlen delivered on the 27th January, 2000 which stated that if the defendant wanted to raise before the District Court issues concerning the history, calibration and approval of the Intoxilyzer it was up to the defendant to demonstrate the relevance of the evidence and to procure necessary witnesses in this regard to rebut the presumptions that were in the Road Traffic Acts.
Wishing to consider the matter further I adjourned the case to the 19th June, 2001 for further submissions.
On the 19th June, 2001 the case resumed before the court and I asked the parties if they had anythingfurther to add. Counsel for the accused stated that he did not. The solicitor for the prosecution reiterated that it was the prosecution's case that the presumptions that were contained in the Road Traffic Acts came to the prosecution's assistance and that the lack of formal approval from the Medical Bureau in relation to the use of the Lion Intoxilyzer 6000 was not a proof which the prosecution was required to meet for a successful prosecution under s.49 of the Road Traffic Acts, 1961 -1995. He referred to s. 12(4) of the 1994 Act and went on to outline that if the court was to hold that the Intoxilyzer was not approved the roadside breath test (blow in the bag) would logically have to fail as the wording was the same.
I pointed out that as the Intoxilyzer procedure was determinative, the breathalyser merely assisted the garda informing an opinion.
/ ruled that having considered the views of both parties to the case and having studied the legislation and in particular the Road Traffic Act of 1994 that I was of the view that the question of whether the prosecution had to formally prove in evidence that the apparatus for determining the concentration of alcohol in a person's breath was an approved apparatus was an important point and that the Act was silent on this and I felt that it would be helpful in the prosecution of these cases in general if a case was stated to the High Court on the point and that I proposed to adopt this course at this stage and was amenable to stating a case to the High Court. It was agreed between the parties at that point that the case stated related to a net point namely is it necessary for the prosecution in a prosecution pursuant to s.49(4) of the Road Traffic Acts, 1961 -1995 to prove that an apparatus purporting to determine the concentration of alcohol in an accused person's breath was an approved apparatus and secondly was it necessary for the prosecution to show that the apparatus had been approved by the Medical Bureau of Road Safety."
The Legislation
Part III of the Road Traffic Act, 1994 deals with driving offences.
S.10 of the Act inserts a new s.49 in the Road Traffic, 1961. Under this section four different offences are created. They fall into two distinct types.
The first which is created by s.49(l)(a) prohibits a person from driving or attempting to drive a mechanically propelled vehicle in a public place while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle. This offence involves an actual incapacity to drive with proper control. The offence can be proved by observation or by clinical tests.
The second type of offence which is created by subsections (2) and (3) and (4) does not depend on a proven incapacity to drive properly. Rather the offence is based entirely on a person driving or attempting to drive" a mechanically propelled vehicle while there is present the quantity of alcohol beyond a permitted limit in the person's blood or urine or breath.
These limits are set forth in the legislation but may be varied by ministerial regulation.
The penalty prescribed is the same for each of the offences.
A garda may arrest without warrant a person who in his opinion is committing or has committed any of offences under the section.
The offence with which Mr Daly was charged was that created by s.49(4). It provides as follows:-
"A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his breath will exceed a concentration of 35 micrograms of alcohol per 100 millilitres of breath".
S. 12 of the 1994 Act creates an obligation to provide a preliminary breath specimen in circumstances where a garda is of opinion that a person in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor and where he requires the person to provide such breath specimen. The section envisages the specimen being exhaled into an apparatus which indicates the presence of alcohol in the breath. Subsection (4) provides that in a prosecution under Part III of the 1994 Act or under s. 49 or 50 of the Principal Act it shall be presumed, until the contrary is shown, that an apparatus provided a member of the Gardai for the purpose of enabling a person to provide a specimen of breath is an apparatus for indicating the presence of alcohol in the breath.
S.13 creates an obligation on a person who has been arrested under various sections of the legislation to provide a specimen of blood or urine or breath. That obligation arises in circumstances where a garda is of opinion that the person who has been arrested has consumed an intoxicant. The garda may at his discretion do either or both of the following. He may require the person to provide, by exhaling into an apparatus for determining the concentration in his breath, two specimens of his breath and may indicate the manner in which he is to comply with that requirement or may require the person either (a) to permit a designated doctor to take from the person a specimen of his blood or (b) at the option of the person, to provide for the designated doctor a specimen of his urine.
In this case I am, of course, only concerned with breath specimens.
Under subsection (4) of s.13 it is provided as follows:
"In a prosecution for an offence under this Part or under section 49 or 50 of the Principal Act it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Siochdnafor the purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for determining the concentration of alcohol in the breath".
S.17 deals with the procedure following the provision of breath specimens under s.13 of the Act. It, inter alia, provides for the furnishing of statements automatically produced by the apparatus for measuring the alcohol content in the breath and the obligation of the person who gave the specimen to acknowledge receipt of such statements.
S.21, insofar as it is relevant to the present case, provides at subsection 1 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 Siochdna 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".
At this stage it is convenient to draw attention to two further provisions of the 1994 Act. They are contained in s.18(4) and 19(4) respectively. Each creates a statutory rebuttable presumption that the preceding three subsections in each section have been complied with. In s.18 they deal with the procedure regarding the taking of specimens of blood or urine. In the case of s.19 they deal with the procedure to be carried out by the Bureau after it receives specimens of blood or urine. With the mention of the Bureau it is convenient to now look at its role.
The Bureau
Under s.37 of the Road Traffic Act, 1968 the minister was authorised to establish a body referred to as the Bureau to perform the functions assigned to it under the legislation.
S.6 of the 1994 Act amended s.38 of the 1968 Road Traffic Act. Under the provisions of this amendment the Bureau is obliged to perform the functions assigned to it under the legislation. Subsection 2 of the now substituted s.38 provides that in particular the Bureau shall, subject to the establishment order and to any regulations under Part III of the Road Traffic Act, 1994 arrange for, inter alia, the approval of apparatus for indicating the presence of alcohol and apparatus for determining the concentration of alcohol in the breath. The Bureau is also obliged to arrange for the supply and testing of apparatus for indicating the presence of alcohol and apparatus for determining the concentration of alcohol in the breath. This latter provision requires the consent of the minister (see s.38 (4) of the 1968 Act, which is only amended as to subsection (a) thereof by the 1994 Act).
Submissions & Decision
The essence of Mr Daly's case is that in the absence of either evidence or a statutory presumption to the effect that the apparatus purporting to determine the concentration of alcohol in the accused's breath was approved, supplied and tested by the Bureau the prosecution here must fail and the question posed answered in the affirmative.
The prosecutor's submission is to the effect that in a prosecution for an offence under s.49(4) of the Act it is not necessary so to prove or to have any statutory presumption of the type contended for by the accused. Rather it is said that the presumption which is provided for in s.13(4), the provisions of s.17(1) and the presumption created by s.21(l) are sufficient when coupled with the other evidence which was tendered to the District Judge to establish all the ingredients of the offence alleged.
Two cases in particular are relied upon in support of the prosecutor's contention. They are the decision of the Supreme Court in The State (Murphy) v Johnston [1983] IR 235 and the decision of this court (O'Higgins J.) in the case of DPP vSvron (unreported 7th March, 2001).
In the first of these cases there was a conviction recorded in the District Court in respect of a complaint that the accused had driven a vehicle in a public place at a time when he had an unlawful concentration of alcohol in his body contrary to s.49 of the Road Traffic Act, 1961. At the trial the concentration of alcohol in his body at the relevant time was provided by, inter alia, a certificate issued by the Bureau pursuant to s.22 of the Road Traffic (Amendment) Act, 1978. S.23 of that Act provided that such certificate shall, unless the contrary is shown, be sufficient evidence of compliance by the Bureau with all the requirements which the Bureau is obliged to comply with by Part III of the Act of 1978 or under Part m of the Act of 1968.
The reference to Part III of the Road Traffic Act, 1968 was clearly a mistake because that Part was concerned with driving licences and not with driving offences. A reference to Part V of the Act of 1968 would have been more suitable. This error was relied upon as the basis for the application for certiorari. The application was unsuccessful in both the High Court and the Supreme Court.
In the Supreme Court in the judgment of O'Higgins C.J. he rejected the suggestion made that having regard to the obvious nature of the error in s.23 of the 1978 Act that it was competent for a court or judge to read the reference to Part HI of the Act of 1968 as a reference to Part V of that Act. He said that the reference was clear and unambiguous and to read it as something other than it was would be, in effect, to amend the subsection. That was not within the competence of the courts and could not be done.
It is the second contention which the Supreme Court had to deal with that is of relevance to this case. O'Higgins C.J. said as follows (at p.239)
"/t seems to me, however, that the second ground put forward in the cause shown provides a reason for discharging the conditional order. Section 5 of the Act of 1978 repealed all of Part V of the Act of 1968 except s.27 (which contains definitions), ss37to 42 (which provided for the establishment of the Bureau and the appointment of the director) and ss48 - 52 (which related to miscellaneous driving offences). S. 7 of the Act of 1978 inserted a new sub – ss 1 and 2 in s. 38 of the Act of 1968 providing for the general functions of the Bureau, and s. 8 of the Act of1978 inserted a new subs 2 in s.39 of the Act of 1968 providing for the general functions of the director of the Bureau. The result of the repeal and the insertion of these new provisions is that Part V of the Act of 1968 now contains sections of general application describing the powers and Junctions of the Bureau and its director and, of course, providing for miscellaneous driving offences, none of which arise in this case. Proof of compliance with the provisions of Part V of the Act of 1968, as it now stands, does not appear to me to be in any way necessary for a successful prosecution under s.49 of the Act of 1961. It is sufficient to sustain such a prosecution that the certificate issued by the Bureau be 'evidence of the facts certified to in it' and of compliance by the Bureau with all the requirements which the Bureau is obliged to comply with by or under this part...' - that is to say Part III (ss 9 - 26) of the Act of 1978. It seems to me, therefore, that the respondent District Justice had before him in the certificate issued by the Bureau, and in the accompanying form, all the evidence necessary to satisfy each ingredient in the offence specified in s.49 of the Road Traffic Act, 1961".
In the present case the prosecutor contends that the same reasoning ought to apply.
The case of DPP v Syron was a consultative case stated from the District Court concerning a prosecution in respect of the same offence with which Mr Daly is charged in the instant case. The submission which was made in the District Court in that case was to the effect that in the absence of clear regulations governing the calculation of the concentration of alcohol in an accused's breath and in the absence of the prosecutor producing the appropriate lawful authority pursuant to the Road Traffic Act, 1994 which set out a scientific formulation or manner in which a sample of breath was calculated for the purposes of grounding a prosecution of an offence pursuant to s.49(4) of the Road Traffic Act as inserted by s. 10 of the Road Traffic Act, 1994, that the case against the accused should be dismissed. It was said that the absence of such lawful authority was in breach of the accused's constitutional right to know fully the case being made against him and to fully and adequately defend himself armed with knowledge of the total ingredients of the case being made. O'Higgins J. was asked to decide whether the District Court was "entitled to convict the applicant in these criminal proceedings in the absence of such lawful authority by way of regulations under the Road Traffic Act, 1994 or otherwise which set out a scientific formulation or manner in which a sample of breath is to be calculated for the purposes of making out an offence pursuant to s.49(4) of the Road Traffic Act as inserted bys.10 of the Road Traffic Act, 1994". That question was answered in the affirmative.
Whilst the question posed in this case is different nonetheless the reasoning of O'Higgins J. is in my view of relevance.
Having considered the relevant statutory provision he, inter alia, considered the passage from the decision of O'Higgins C.J. in The State (Murphy) v Johnston which I have quoted above. He said "by virtue of section 38 of the Road Traffic Act, 1968, as amended by section 6 of the Road Traffic Act, 1994, the medical bureau shall arrange for the approval of apparatus for determining the concentration of alcohol in the breath and may, with the consent of the Minister arrange for the supply and testing of such apparatus. Section 38 of the Road Traffic Act, 1968 forms part of Part V of the 1968 Act in respect of which the Supreme Court decided that proof of compliance with its provisions was not a necessary proof for a successful prosecution under section 49".
S.6 of the 1994 Act amends s.38 of the 1968 Act but it still falls within Part V of that Act. Both the Supreme Court in the Murphy case and O'Higgins J. in the Syron case accept that proof of compliance with the provisions of Part V of the 1968 Act is not a necessary proof for a successful prosecution under s.49. It seems to me therefore that applying the reasoning of both the Supreme Court in the Murphy case and O'Higgins J. in the Syron case that it cannot be said that there is a necessity to prove that the obligations of the Bureau under s.6 of the 1994 Act have been complied with.
I am of opinion that the evidence tendered in the instant case coupled with the statutory presumptions contained at s,13(4) and s.21(l) together with the provisions of s.17(1) of the 1994 Act constitute sufficient evidence of the ingredients of the offence necessary to give rise to a successful prosecution of the offence charged.
I come to this conclusion by reference to the statutory provisions, and the two Irish decisions from which I have cited.
I do not consider that the English decisions which were relied upon by counsel for Mr Daly are of any assistance since they deal with the particular provisions of the English legislation which are not the same as those that obtain in this jurisdiction.
In coming to the conclusion which I do to the effect that the question posed here must be decided against Mr Daly I think that there are certain observations of O'Higgins J. in Svron's case which are apposite. He said "In this case there has been no denial of the right of the accused to challenge the evidence, and in particular the certificate in whatever appropriate manner he sees fit. That might include, in appropriate cases, cross-examination of the Garda as to the accuracy and provenance of the device used, the investigation as to whether the device had been properly calibrated by the appropriate person and such other matters as might be relevant to the assessment of the accuracy of the evidence generated by the device. In this case there was no such cross-examination. Moreover there is nothing that would preclude the calling of witnesses on subpoena, if necessary to impugn the reliability of the prima facie evidence. Moreover, I do not consider either the charge or the certificate to be any way imprecise - though no doubt it could contain more information".
It seems to me that certain of those observations apply with equal force to the present case. I do not believe that the accused has been deprived of any of his rights to challenge the evidence tendered against him. That evidence presented does not, however, in my view require to be added to either by means of testimony or as is suggested by counsel for Mr Daly an additional statutory presumption (which of course does not exist in the present statutory framework) of the type which he suggests.
The question posed will be answered "no".
