THE HIGH COURT
HC 264/04								
[2004 No. 689]SS
IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED PURSUANT TO SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS AMENDED AND EXTENDED BY THE PROVISIONS OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
BETWEEN 
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
AND
BERNARD JOYCE
RESPONDENT
JUDGMENT of Mr. Justice Quirke delivered the 15th day of July, 2004.
This is an appeal by way of case stated by Judge Michael Patrick Connellan, judge of the District Court, assigned to the Dublin Metropolitan District Court No. 50 at the request of the Director of Public Prosecutions who was dissatisfied with the determination by the learned District Court judge of a proceeding which came before the Dublin Metropolitan District Court on 29th September, 2003.   The Director of Public Prosecutions contends that the determination was erroneous in point of law and has appealed that determination by way of case stated for the opinion of this court.
The proceeding which is in contention comprised a prosecution of the respondent by the Director of Public Prosecutions in respect of an alleged offence contrary to the provisions of s. 13 (2) of the Road Traffic Act, 1994.  
In summary the respondent was charged with having refused to comply with a requirement by a member of An Garda  Síochána to provide two specimens of his breath on18th February, 2002, at Blanchardstown Garda Station having first been arrested pursuant to the provisions of s. 49 (8) of the Road Traffic Act, 1961 (as amended) and required to do so.

FACTUAL BACKGROUND
1.	On 18th February, 2002, the driver of an Opel Astra vehicle followed a Vauxhall car which had struck his vehicle and failed to stop.  He lost sight of the vehicle for a short period and then discovered it seemingly abandoned in a yard.  
Within a very short period he identified the respondent to the Gardaí (whom he had instantly telephoned) as the driver of the Vauxhall vehicle at the time of the collision.
2.	The respondent, when interviewed by Garda Hanley at the scene, denied ownership of the Vauxhall vehicle and any knowledge of the incident.  
3.	In conversation with the respondent Garda Hanley noticed a strong smell of intoxicating liquor from the respondent’s breath, that the respondent was unsteady on his feet and that his eyes were glazed.
He formed the opinion that the respondent had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle and he arrested the respondent pursuant to the provisions of the Road Traffic Act, 1961 (as amended) on suspicion of the commission of an offence pursuant to the provisions of s. 49 of that Act. 
4.	The respondent was brought to Blanchardstown Garda Station and the member-in-charge, Garda Traynor, was advised that he had been arrested for a suspected breach of s. 49 of the Road Traffic Act, 1961 (as amended).  Garda Traynor complied correctly with the appropriate statutory requirements in respect of an intended prosecution under s. 49 of the Act including a verbal requirement in the following terms:
“I am of the opinion that you have consumed an intoxicant.  Therefore pursuant to s. 13 (1) (a) of the Road Traffic Act, 1961 to 1994 I am now requiring you to provide two specimens of your breath by exhaling into this apparatus designed for determining the concentration of alcohol in your breath.  Failure or refusal to comply with my requirement or failure or refusal to comply with my requirement in the manner outlined by me is a specific offence under s. 13 (2) of the Road Traffic Act, 1994.  Penalty on summary conviction is liable to a fine not exceeding £1000 or a term of imprisonment not exceeding six months or both.” 
5.	Initially the respondent cooperated with Garda Traynor but he later refused to do so indicating “No I am not doing that”.  
6.	Having been again reminded of the penalty for refusing to comply with the requirement he stated “No I am not doing it- can’t you see I am drunk”.
7.	When the matter came before the learned District Court judge on 29th September, 2003, he decided that he could not be satisfied beyond a reasonable doubt that the respondent was driving the vehicle at the time of the collision (it is not clear from the form of the case stated whether or not the respondent faced other charges arising out of the same incident. Para. 5 of the case stated suggests that he did and that those charges were dismissed by the learned District Court judge.  This court is not concerned with those charges or that issue). 

THE QUESTION FOR DETERMINATION
The learned District Court judge held that: 
“in order to sustain a conviction under s. 13 (2) of the Road Traffic Act, 1994…the prosecution must prove beyond a reasonable doubt that the accused was driving a mechanically propelled vehicle in a public place prior to arrest.”  
He requires this court to decide whether he was correct in that determination. 
The Law
Section 13 of the Road Traffic Act, 1994 provides inter alia as follows:
(1)	Where a person is arrested under s. 49 (8) … of the Principal Act …and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda  Síochána may, at a Garda station, …
(a)	require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement…
(2)	Subject to section 23, a person who refuses or fails to comply forthwith with a requirement under subs. (1) (a) shall be guilty of an offence ….”
Section 23 (1) of that Act provides that:-
“In a prosecution of a person for an offence under s. 13 for refusing or failing to comply with a requirement to provide 2 specimens of his breath, it shall be a defence for the defendant to satisfy the court that there was a special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.”  
Mr. Maguire on behalf of the respondent relies upon the decision of the High Court (Finlay P.) in the case of James J. Gallagher v. Ronald O’Hanlon (Unreported 10th July, 1975) as authority for the proposition that the respondent had a “special and substantial reason” for refusing to comply with the Garda Traynor’s requirement.
He contends that the respondent, of necessity, knew that he had not driven a mechanically propelled vehicle during the period of time immediately prior to his arrest and that this knowledge comprised the “special and substantial reason…” for his refusal to comply with the requirement made of him.	
In the Gallagher case the Court was considering the provisions of s. 30 of the Road Traffic Act, 1968 which provided that where a person arrested under s. 49 of the Road Traffic Act, 1961 or s. 28 (3) of the 1968 Act had been brought to a garda station a member of the Garda Síochána then in charge might, inter alia, require the arrested person to permit a designated registered medical practitioner to take a specimen of blood or urine and an arrested person who refused to comply with such a request or requisition was guilty of an offence.  
Section 36 (1) (c) of the Road Traffic Act, 1968 provided that:
“In a prosecution for refusing or failing to permit a designated registered medical practitioner to take a specimen of blood, it shall be a good defence for the defendant - …
(c)	to satisfy the court that there was a special and substantial reason for his refusal or failure.”  
The terms of that section (which has now been repealed by Road Traffic (Amendment) Act, 1978, Section 5) whilst similar to the provisions of s. 23 (1) of the 1994 Act, were not identical thereto.  
In order to sustain the statutory defence provided by s. 23 (1) of the 1994 Act a person facing a charge pursuant to s. 13 of the 1994 Act is obliged to discharge the onus of proving by way of evidence and to the satisfaction of the court 
(a)	“that there was a special and substantial reason for his refusal or failure” to provide two specimens of his breath and 
(b) 	“that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.”  

In James J. Gallagher v. Ronald O’Hanlon (Unreported 10th July, 1975) the relevant question which the Court was considering was as follows:
(1)	Whether or not it is a prerequisite to a conviction under s. 30 that the specimen of blood or urine requisitioned be proved to have been capable of being taken from the defendant within three hours of driving and 
(2) 	Whether or not it was a prerequisite to a conviction under the provisions of s. 30 of the Road Traffic Act, 1968 that the time at which the defendant had last driven was proved to the District Justice.”

The applicant had been charged with an offence contrary to the provisions of s. 29 of the 1968 Act of driving while there was present in his body a quantity of alcohol such that there was within three hours thereafter a concentration of alcohol in his blood which exceeded the statutory limit.
Finlay P. held that the section should not be construed so as to provide that it contained an additional prerequisite or precondition (to the making of a request for a specimen of blood or urine) that the request  must be made within three hours of the driving.  He went on to add: 
“If the legislature had intended to put that qualification on the right of a member of the guards to make a request under s. 30 it would, in my opinion, have done so and no grave injustice can occur from its failure to do so for a defendant can, if the request were to be made for example the day after the arrest or were to be made as a result of an arrest the day after the driving, refused to submit himself to the test concerned giving as his reason that the test could not conceivably produce evidence which would be admissible having regard to the lapse of more than three hours and accorindlgy avail himself of the defence specifically provided for him in s. 36.  I have no doubt that a court, before whom a person appeared who had refused to comply with the request under s. 30 if they were satisfied upon proof by the defendant that the request was made more than three hours after the driving, would be entitled and almost bound to accept that as a special and substantial reason for declining the request.”

Mr. Maguire argues that since the respondent, of necessity, knew that he had not driven a mechanically propelled vehicle during the period of time immediately prior to his arrest he occupied the same position as the fictional defendant identified by Finlay P. in Gallagher.
I cannot accept Mr. Maguire’s contention.  The example (for such it was) postulated by Finlay P. presupposed a request made “the day after…” the arrest or the driving and that the fictional defendant had given “…as his reason that the test could not conceivably produce evidence which would be admissible having regard to the lapse of more than three hours.”
In the instant case the applicant was interviewed by Garda Hanley at the scene where the Vauxhall vehicle was found within a very short period after the commission of the offence alleged (which contained no ‘three hour’ or other limitation period).
The only reason advanced by the applicant for refusing to comply with the requirement to provide two specimens of his breath was “…can’t you see I’m drunk.”
It cannot be contended that the applicant considered Garda Traynor’s requirement and made a reasoned decision to refuse to comply with that requirement on the ground that he had not been driving a mechanically propelled vehicle in the period of time immediately prior to his arrest.  He refused to comply with the requirement on the grounds that he was drunk and on no other grounds.
It may well be that with the benefit of hindsight he considered that this might well be a “good and sufficient reason” for refusing to comply with Sergeant Traynor’s requirement but it was not a reason for his refusal.
The terms of s. 13 and s. 23 of the 1994 Act are clear and unambiguous.  The offence created is unconnected with the driving of a vehicle or with the concentration of alcohol in the breath of a person prosecuted.  It is committed when a person refuses or fails to comply with the requirement and is unable 
“To satisfy the court that there was a special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.” 

Whether or not “…there was a special and substantial reason for his refusal or failure” and whether or not “…as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine” is, in this case and remains, a matter of fact for the determination of the court.
The question of law posed by the District Court judge for the determination of this Court is as follows:
“Was I correct in holding that in order to sustain a conviction under S. 13 (2) of the Road Traffic Act, 1994 that the prosecution was to prove beyond a reasonable doubt that the accused was driving a mechanically propelled vehicle in a public place prior to arrest?”.
For the reasons outlined above I would answer that question “no”.