High Court of Ireland Decisions

1. In these Judicial Review proceedings the Applicant seeks an Order of Prohibition in regard to criminal proceedings entitled The Director of Public Prosecutions Complainant and Paul O'Regan Defendant in the District Court area of Cork City, District No. 19. The Order of Prohibition is sought on the following grounds:-

2. The Applicant was granted leave to issue his Judicial Review proceedings by Order of this Court (Shanley J.) on the 19th day of March 1997. In his original statement grounding his application for Judicial Review, the Applicant had put forward as a fourth ground that there was fundamental unfairness to the Applicant in the District Court trial, that the said trial had been prosecuted and conducted oppressively and contrary to the rules of natural and constitutional justice, and in particular that it had been contrary to Article 38 and Article 40.3 of the Constitution. This ground was disallowed by the learned Shanley J. at the stage of the ex-parte application and the Applicant was permitted to seek Judicial Review only on the three grounds listed above. Pending the result of the Judicial Review proceedings, the criminal proceedings in the District Court have been stayed. Between the date of the granting of leave to issue Judicial Review proceedings and the hearing before me on the 18th March, 1998, there were somewhat prolonged proceedings in regard to discovery but it is unnecessary to deal with these in any detail at this point.

3. The first named Respondent filed a Statement of Opposition on the 8th July, 1997 on the stated grounds that the first named Respondent was not under any obligation to call a witness at the request of the Applicant during the course of the trial, that the second named Respondent had acted within jurisdiction and in accordance with natural justice and that it would not be appropriate for the second named Respondent to require the first named Respondent to call any particular witness. The first named Respondent in the course of the Statement of Opposition admitted that the second named Respondent should have left it open to the Applicant to call Dr. Prendiville or any such witness as he might wish for his defence and at no stage during the hearing before me did the first named Respondent seek to oppose the calling of Dr. Prendiville as a witness by the Applicant.

4. The facts as regards the District Court trial are set out in the Affidavits of the Applicant, of Inspector Brian Calnan of the Garda Siochana and of Denis O'Sullivan, Solicitor for the Applicant. While there are clashes of detail between the Affidavits, the main facts of the matter are agreed.

5. The Applicant resides in Cork and is a lift engineer. By summons dated 5th December, 1996 he was charged with offences under Section 49 (2) of the Road Traffic Act, 1961 (as amended) and Section 51(a) of the Road Traffic Act, 1961 (as amended). In summary, these charges were of having an excessive concentration of alcohol in his blood and of driving without reasonable consideration. The date of the alleged offences was the 18th May, 1996.

6. The trial of these alleged offences commenced in Cork District Court before the second named Respondent, District Judge McGruairc on the 13th March, 1997 and was adjourned for further hearing until the 20th March, 1997. The applicant entered a plea of not guilty in respect of both charges. The Applicant was represented by Denis O'Sullivan, Solicitor. At the hearing, evidence on behalf of the Prosecution was given by four members of the Gárda Síochána. The case was prosecuted by Inspector Calnan. The Prosecution evidence was that the Applicant was driving his car on the wrong side of the road. When stopped by Garda Desmond Quinn, his breath smelt strongly of alcohol, his speech was slurred and he was unsteady on his feet. The Applicant was arrested and brought to Mayfield Garda Station. There is controversy between the Applicant and the Gardai as regards the time of arrest, the Garda evidence being that the arrest occurred at about 12.50 a.m. whereas the Applicant asserts that the arrest took place earlier at in or about 11.15 p.m. The Applicant's Solicitor, in cross-examination of the Garda witnesses, suggested that the Gardai falsely placed the arrest at the later time in order to bring the taking of the Applicant's blood sample within the three hour period from the time of driving as required by the Road Traffic Acts. This was strenuously denied by the Garda witnesses. This controversy, however, does not in itself form part of the grounds for Judicial Review. In the event of the District Court trial continuing, it will clearly be within the jurisdiction of the learned District Court Judge to make his own findings as to the time of arrest on the evidence before him.

7. The Prosecution also led Garda evidence in regard to what transpired in the Garda Station following the arrest. According to this evidence the Applicant was advised that he could have his own doctor come to the station but the Applicant did not wish this. At

8. At the conclusion of the Prosecution case, Mr. O'Sullivan, Solicitor for the Applicant, sought a direction on the grounds that there had been a delay in the issue and service of summonses. The second named Respondent, Judge McGruairc, refused this application. Mr. O'Sullivan then applied to the second named Respondent for an Order that the State should call Dr. Prendiville on the grounds that he was a material witness and sought an adjournment of the proceedings if necessary for this purpose. The Prosecution did not agree that Dr. Prendiville was a necessary witness and Mr. O'Sullivan then applied to the second named Respondent for an adjournment of the proceedings to enable Dr. Prendiville to be called as a witness by the Applicant; this application was also refused. The learned District Judge acceded to an application for an adjournment to enable a witness from the Medical Bureau of Road Safety to be called in regard to the receipt and despatch of the blood samples and to enable the Applicant's wife to be called to give evidence in regard to whether the Applicant in fact had taken one of the blood samples from the Garda Station.

9. The Applicant gave evidence in the District Court which was in conflict with that of the Prosecution in a number of aspects, in particular as to what transpired in Mayfield Garda Station. The Applicant's evidence as set out in his Affidavit was that the Gardai had originally tried to call a Dr. O'Callaghan to the Garda Station, that considerable time passed and that Dr. O'Callaghan did not arrive. Subsequently Dr. Prendiville arrived at the Garda Station and informed the Applicant that he had a choice of providing a specimen of blood or urine but when he was unable to urinate the doctor in effect insisted that he should give a blood sample. The doctor then took a sample of blood by syringe and split the sample between two bottles which he placed on the table. The Applicant states that he put out his hand to take one of the bottles as his own sample but that the doctor prevented him from doing so and told him that he would get his sample in the post; he then left the Garda Station without the bottle and subsequently he received a registered letter from the Medical Bureau enclosing a certificate of blood alcohol and also enclosing a sealed bottle with a blood sample. The Applicant in his Affidavit states that the blood sample which he received by registered post was tendered in evidence in the District Court and that his father, Charles O'Regan, gave evidence supporting him in stating that the doctor refused to allow him to take the sample and that he subsequently received it at his home.

10. At the conclusion of the hearing, the learned District Judge confirmed that the Applicant could bring a witness from the Medical Bureau of Road Safety to give evidence as to the number of specimens received by the Bureau and as to whether a specimen had been forwarded to the Applicant. He also indicated that the Applicant's wife could give evidence in regard to the receipt of the blood sample by post. He then adjourned the hearing to 20th March, 1997.

11. In his submissions to this Court, Senior Counsel for the Applicant, Dr. White, stressed the major clashes between the Garda evidence and that of the Applicant as regards the time of arrest and the train of events in the Garda Station. He submitted that the evidence of the doctor, who had signed the statutory certificate in regard to the blood sample, was part and parcel of the Prosecution case. The doctor should have been produced as a Prosecution witness and he could then be cross-examined on behalf of the Applicant.

12. Dr. White was extremely critical of the fact that the State had not admitted that the District Judge was in error in refusing to permit Dr. Prendiville to be called as a witness by the defence until the first-named Defendant filed his Statement of Opposition on the 8th July, 1997. While undoubtedly there was a delay of some four months between the order of Shanley J. granting leave and the filing of the Respondents' Statement of Opposition, and while this delay cannot have been helpful from the point of view of the Applicant, it is quite clear that the Respondent acted correctly in admitting that the District Judge erred in refusing to permit Dr. Prendiville to be called as a witness for the defence. The Applicant, if he so wished, clearly had the right to call the doctor as a witness in an endeavour to substantiate the Applicant's own account of the events which transpired at the Garda Station.

13. Counsel for the Applicant, however, submitted that the matter went further than allowing the doctor to be called as a witness for the Defendant; from the point of view of the Applicant, it was essential that the doctor be called as a witness for the Prosecution. He could then be subjected to what Dr. White described as " a Cork cross-examination " which would, one assumes, be likely to extract the truth from him, however unwillingly. From the point of view of an advocate, one can appreciate the advantages of cross-examination, and no doubt the Applicant is in the difficulty that at this point he cannot know whether Dr. Prendiville's evidence would in fact support his version of events. Nevertheless, this Court can hardly accept an argument which implies that Dr. Prendiville, an expert medical witness, is likely to commit perjury, or at the least withhold full evidence, unless he is subjected to cross-examination by a Cork Barrister.

14. There remains the question as to whether, as a matter of law, the Prosecution was obliged to call in evidence the doctor who carried out the relevant blood tests and signed the certificate. In support of his contention that the State should have called Dr. Prendiville, Counsel for the Applicant referred to the case of Joseph Francis Oliva, a judgment of the English Court of Criminal Appeal reported at [1965] Vol. 49 Crim. App. Reps. 298. In that case the accused, Mr. Oliva, was convicted of wounding one Brian Routledge with intent to do him grievous bodily harm. Both the victim, Mr. Routledge, and also a man named Hampden gave evidence at the committal proceedings and their names appeared on the back of the indictment. At a later stage, both Routledge and Hampden made statements withdrawing their original evidence against the accused. At the trial the Prosecution refused to call either Routledge or Hampden. Lord Chief Justice Parker in his judgment in the Court of Criminal Appeal surveyed a number of earlier cases and concluded, at page 309-310 of the report:-

15. In the event the Lord Chief Justice held that the Prosecution had exercised their discretion rightly in refusing to call the witnesses since they were " abundantly entitled to form the view that, to say the very least, these two witnesses were wholly unreliable and that the interests of justice would not be furthered by calling such witnesses." It should also be noted that in the passage quoted above the learned Lord Chief Justice holds that the Judge of trial may, in his discretion, " invite" the Prosecution to call a particular witness. At no stage does he suggest that the Judge of trial may require the Prosecution to call a particular witness.

16. Dr. White also referred the Court to the case of Seneviratne v. R. [1936] 3 AER 36. This is a judgment of the Privy Council in a case in which the procedure of the original trial which took place in Ceylon was, to say the least, bizarre. It seems to me that the decision of the Privy Council dealt with the circumstances of the particular case rather than with general principles. I also note that the Seneviratne v. R. case was considered by Lord Chief Justice Parker in the course of his judgment in the Oliva case where he concluded that it reached the same conclusion as regards the discretion of the Prosecution in regard to the calling of witnesses.

17. The circumstances of the Oliva case were, of course, quite different from those of the instant case. In the Oliva case, the witnesses had made statements and given evidence at the committal proceedings; their names were on the back of the indictment. This, under the law as it stands at present in this jurisdiction, would be somewhat parallel to a situation where statements of evidence of two witnesses appeared in the Book of Evidence for a trial on indictment and the Prosecution at the trial neither called the witnesses nor proferred them for cross-examination. This is not truly comparable to the situation, as in the instant case, of a summary trial in the District Court. It seems to me that in the situation of a summary trial in the District Court, where there is no preliminary Book of Evidence procedure, the discretion of the Prosecution as to what witnesses to call is even less fettered than it would be at a trial on indictment. Nevertheless, this Court should consider whether in principle the Prosecution properly exercised its discretion in the instant case in failing to call Dr. Prendiville as a witness.

18. Counsel for the Director of Public Prosecutions, Miss Egan, in her submission to the Court, in general accepts the principles laid down in the Oliva case but states that the Prosecution correctly and properly exercised its discretion in not calling Dr. Prendiville as a witness. She states that the evidence given by the Garda witnesses provided all the necessary proofs to establish the commission of the offences as charged.

19. The procedure to be followed in a Garda Station in regard to the taking of urine and blood samples where there is an allegation of drunken driving is covered by Part (III) of the Road Traffic Act, 1994. A number of sections deal with matters of evidence. Section 18 deals with the procedure to be followed where a blood specimen is given by the accused. Section 18 (1) provides as follows:-

20. The statutory form under Section 18(1), signed by Dr. Prendiville, was produced to the District Court and is exhibited in these proceedings. Under Section 21 there was no requirement for the Prosecution to call Dr. Prendiville as a witness and one must presume that until the actual trial the Prosecution were unaware of the evidence that would be given by the Applicant. It seems to me, therefore, that not only was it well within the discretion of the Prosecution not to call the doctor but that, in addition, specific statutory provision has been made to obviate the necessity for calling the relevant doctor in this type of prosecution. Under the principles set out in the Oliva case, which I accept are correct, the Judge of trial may interfere either to invite the Prosecution to call a witness or to call a witness himself if, and only if, the Prosecution appear to be exercising their discretion improperly. In this case, since the Prosecution were not in fact exercising their discretion improperly, the learned District Judge could not intervene and was correct in refusing to require the Prosecution to call Dr. Prendiville and in refusing to call Dr. Prendiville himself.

21. Nevertheless, a number of issues had arisen in regard to the procedure followed in the Garda Station. In this context the District Judge quite properly adjourned the proceedings to permit the Applicant to call his wife and a witness from the Medical Bureau. As I have said above, he should also have permitted the Applicant to call Dr. Prendiville in evidence. The Applicant would then be enabled, on the adjourned date, to call all necessary evidence to establish the case he wishes to make.

22. While, as I have stated above, the Applicant was refused leave to ground his Judicial Review application on the general point in regard to fundamental unfairness, Counsel for the Applicant made a number of submissions to this Court in regard to these general constitutional points. Despite the fact that no leave was given, I think it proper to refer briefly to these. The right to a fair trial is of course a right of fundamental constitutional importance and one which has been placed high in the hierarchy of constitutional rights by the Supreme Court - see D -v- D.P.P [1994] 2 IR 465. However, apart from his refusal to permit the Applicant to call Dr. Prendiville as a witness, it is hard to see how the second-named Defendant's conduct of the trial could be categorised as fundamentally unfair or oppressive. The Applicant was represented by an experienced and determined Solicitor. Where the Applicant disagreed with the Garda evidence, his Solicitor challenged that evidence fully in cross-examination. The Applicant gave his own evidence, as did his father. The trial was adjourned to permit the calling of further witnesses to deal with the issues raised by the Applicant. The Applicant will now also be permitted to call Dr. Prendiville. This should enable him to deal with the various technical matters that are in issue, in particular whether he himself was given one of the blood samples at the Garda Station or whether the sample was sent to him by post. In the context of the Applicant's allegations that the conduct of his trial was fundamentally unfair and oppressive, it should, I think, be noted that the Applicant did not challenge the Garda evidence that he had drink taken on the night that he was arrested, nor does there appear to be any challenge to the accuracy of the analysis by the Medical Bureau of the blood samples. To summarise, given that the Applicant will now be enabled to call Dr. Prendiville as a witness, I do not accept that his trial on these charges is either unfair or oppressive.

23. Counsel for the Applicant also raised the matter of delay but this matter does not form any part of the grounds stated in the application for Judicial Review and has been dealt with already by the District Judge.

24. The Applicant, therefore, will be granted the relief of a declaration that the Applicant is entitled to call Dr. Prendiville as a witness in the course of his defence. The other relief sought by the Applicant must be refused.