Director of Public Prosecutions v O'Connor (Approved)

Factual and Procedural Background

This opinion arises from a consultative case stated by the District Court pursuant to section 52 of the Courts (Supplemental Provisions) Act 1961. The District Court President posed two questions to the High Court concerning the admissibility of a section 13 statement under the Road Traffic Act 2010 ("the 2010 Act").

The prosecution involves an allegation under section 5(4) of the 2010 Act that the defendant was in charge of a mechanically propelled vehicle on 11 March 2019 with a breath alcohol concentration exceeding the legal limit. The District Court heard evidence in 2021, during which the prosecution tendered a certificate pursuant to section 13 of the 2010 Act. The defendant objected to the certificate's admissibility on the basis that a Garda ("Garda Sweeney") amended the automatically produced statements by correcting the alleged contravened provision from "s.4(4)" to "s.5(4)" after the breath specimen was provided but before the defendant signed the statements.

The District Judge found the amendment to be trivial, not misleading, and causing no prejudice or injustice to the defendant. The judge distinguished the precedent case of DPP v Barnes and ruled the statement admissible. The defendant applied for a direction challenging the statement's admissibility on the grounds it was not "duly completed" as required by section 13(2) of the 2010 Act.

Legal Issues Presented

1. Whether Garda Sweeney was entitled to amend the section 13 statements automatically produced by the Evidenzer apparatus, given that the amendment was notified to the accused before signing and caused no prejudice or injustice.
2. If not, whether the amended section 13 statement annexed to the case stated was admissible in evidence.

Arguments of the Parties

Defendant's Arguments

• The section 13 statement was not a "duly completed statement" under section 13(2) of the 2010 Act due to the Garda's amendment of the automatically produced statement.
• Relied on precedents including DPP v Freeman, DPP v Avadenei, and DPP (O'Reilly) v Barnes to argue that a Garda cannot amend the statement produced by the apparatus.

Prosecutor's Arguments

• Relied on the same precedents as the defendant but argued that the amendment did not affect the execution or admissibility of the document.
• Asserted that the amendment was technical and did not prejudice the defendant.
• Contended that the word "and" in Regulation 4 of Statutory Instrument No. 398 of 2015 allows scope for a Garda to make handwritten amendments prior to signing.
• Argued that the decision in Freeman did not survive the Supreme Court decision in Avandenei.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework under the Road Traffic Act 2010, particularly section 13(2) and Regulation 4 of Statutory Instrument No. 398 of 2015, which prescribe the manner in which breath specimen statements must be produced and signed. The court emphasized the requirement for strict compliance with these provisions to ensure the evidential presumption under section 20 of the 2010 Act applies.

The court acknowledged the District Judge's findings that the amendment was trivial and caused no prejudice but held that these considerations do not override the statutory mandate for strict compliance. The court relied heavily on the High Court and Supreme Court decisions in DPP v Freeman, which established that non-compliance with statutory procedures, even if technical and non-prejudicial, vitiates the evidential presumption and renders the statement inadmissible.

The court rejected the prosecution's argument that the Garda could amend the statements prior to execution and signing, noting that Regulation 4(b) requires the Garda to sign following the automatic production of the statements, implying no amendment is permitted thereafter. The court also distinguished between trivial errors in duly completed statements and alterations to automatically produced statements that do not comply strictly with the legislation.

Consequently, the court concluded that the certificate in question was not "duly completed" within the meaning of the statute and thus did not attract the statutory evidential presumption. This conclusion was reached notwithstanding the absence of prejudice or injustice to the defendant.

Holding and Implications

The court answered the questions posed by the District Court as follows:

• No, Garda Sweeney was not entitled to amend the section 13 statements as described.
• No, the amended section 13 statement is not admissible in evidence.

The direct effect of this decision is that the prosecution cannot rely on the amended section 13 statement as evidence in the instant case. The defendant was successful, and the court provisionally awarded costs to the defendant, allowing the parties an opportunity to make submissions on costs within 14 days. No new legal precedent was established beyond the reaffirmation of existing principles requiring strict statutory compliance for evidential certificates under the Road Traffic Act 2010.