The High Court refused a driver’s application to halt a drink-driving prosecution and obtain an independent inspection of the intoximeter used to test his breath. The prosecution in the District Court had not concluded, and the judge said intervention by judicial review was not justified at that stage.
The judgment, delivered by Mr Justice Sheehan on 19 December 2007, concerned judicial review proceedings brought by Michael Kelly against District Judge David Anderson and the Director of Public Prosecutions. Kelly had been charged under section 49(4) of the Road Traffic Act 1961, as amended, following his arrest on 10 January 2004. He pleaded not guilty.
The prosecution disclosed records about faults, malfunctions and unusual or error messages recorded for the machine between January 2003 and July 2004. The material included “ambient fail” results recorded on 22 December 2003 and 12 January, as well as the machine’s log book, a certificate of analysis, a custody record, the summons and statements from three gardaí. No request to examine the machine or for further disclosure followed that letter.
At the District Court hearing on 12 November 2004, the prosecution witnesses were cross-examined. The judgment records that Kelly’s representatives did not put to the garda witnesses that the test result was affected by a faulty machine or that the defence would call an expert on its operation. Kelly later said a prosecuting garda could not explain the “ambient failure” readings immediately before and after his test. The State solicitor said she did not recall that evidence.
After the prosecution closed its case, the District Court refused requests for inspection and related disclosure, saying they came too late. Kelly’s counsel argued that fairness required an independent examination and that the request should have been considered on its merits. The respondents argued that disclosure had been adequate and that judicial review during a criminal trial was generally inappropriate.
Mr Justice Sheehan held that the District Court judge was entitled to refuse the further disclosure application and acted within jurisdiction in refusing inspection about six months after the prosecution case had closed. He also held that the DPP was entitled to refuse the request given when it was made. He refused all relief sought, including an injunction against continuing the prosecution.
The High Court noted that the District Court case was still ongoing and Kelly had not yet suffered detriment. If he received an adverse finding, he could appeal and would be prima facie entitled then to have an expert examine the machine. The judgment did not determine the drink-driving charge or make a finding about the intoximeter’s accuracy.