The High Court refused to quash Aidan Bailey’s conviction for an alcohol-related driving offence, along with the €1,000 fine and three-year driving disqualification imposed by the District Court. Mr Justice Michael Peart ruled on 14 March 2011 that the way the prosecution proceeded was not so flawed or unfair as to justify the relief sought.
The offence arose from a stop on 3 December 2009. Garda evidence was that Bailey had been seen driving erratically, appeared to have consumed an intoxicant and later provided a breath sample showing 78 microgrammes of alcohol per 100 millilitres. He was convicted by Judge Geoffrey Browne in the District Court on 13 February 2010.
Bailey sought to have the conviction, fine and disqualification quashed. His solicitor, Evan O’Dwyer, objected during the District Court hearing when Garda Ian Lynott referred to a printed extract of the statutory warning required before a breath sample. O’Dwyer’s affidavit said the judge told the Garda to avoid making it obvious that he was reading from a precedent. A solicitor who witnessed the hearing gave a different account of some exchanges and said the Garda continued reading from the sheet. The prosecution’s affidavits disputed that he continued to use the extract after the judge intervened.
O’Dwyer and Bailey left court during the prosecution evidence. The applicant had not sworn an affidavit in the High Court and had not disputed that the warning was given. The parties also disagreed about what O’Dwyer had said at the outset: prosecution affidavits said he indicated the case could proceed to conviction without contesting the evidence; O’Dwyer said he had said the court could hear the case.
The High Court accepted that, whatever words were used, the District Judge could reasonably understand that the prosecution was being put on proof and that the evidence would not be challenged. Mr Justice Peart said the prosecution still had to establish the required proofs. He noted that Garda Lynott stated he had given the warning at the station and that the statutory wording he later read to the court was the same wording he had used. The defence could have cross-examined him about the warning but did not do so.
The judge found that the District Judge’s response to the objection would not lead a reasonable, impartial observer to conclude that he lacked impartiality. He refused the application to quash the conviction. The judgment did not order a retrial; the conviction and its associated penalty were not set aside.