Judgment: 2019-01-23 · Court archive

Limerick court refuses bid to exclude breath-test statements over signing error

A District Court judge found a Garda signed the statements after the accused, but ruled the error caused no unfairness, prejudice or detriment to the accused’s fair-trial rights.

District Court, District Court Area of Limerick, District No. 13 ·

Who, what, where, when and why

Who
  • Dariusz Gorecki
  • Brian O’Shea
What

A District Court judge found a Garda signed the statements after the accused, but ruled the error caused no unfairness, prejudice or detriment to the accused’s fair-trial rights.

Where

Places mentioned in the report

  • Limerick
When

Judgment:

Why

Reasons reported in the judgment

The defence argued the forms were not “duly completed” when presented for signature because the Garda had not signed them first. It submitted that the procedural breach made them inadmissible, relying on DPP v Freeman [2009] IEHC 179. In that case, the Supreme Court affirmed a decision excluding statements signed by the accused before the Garda.

A Limerick District Court judge refused an application for a direction at the close of the prosecution case, ruling that breath-test statements were admissible despite a Garda signing them after the accused had signed.

The accused, Dariusz Gorecki, is charged with driving in a public place with alcohol in his body above the statutory limit within three hours of driving. The judgment addresses the admissibility of two statements printed by the breath-testing apparatus under section 13 of the Road Traffic Act 2010, as amended. It does not determine the charge.

The court heard that the Garda presented both statements to Mr Gorecki and required him to sign them, warning that failure to comply was an offence. He signed both. The Garda then signed both statements and offered him either copy; Mr Gorecki kept one.

The defence argued the forms were not “duly completed” when presented for signature because the Garda had not signed them first. It submitted that the procedural breach made them inadmissible, relying on DPP v Freeman [2009] IEHC 179. In that case, the Supreme Court affirmed a decision excluding statements signed by the accused before the Garda.

Judge Brian O’Shea considered that ruling alongside the later Supreme Court decision in DPP v Avadenei [2017] IESC 77. He said Avadenei required the trial court to assess the effect of a procedural flaw on the accused’s fair-trial rights. Evidence should be excluded where the error caused unfairness, prejudice or detriment, he said, reading Freeman in light of the later decision.

The judge accepted there had been a clear breach: the Garda should have signed the statements before handing them to the accused. But Mr Gorecki was not being prosecuted for refusing to sign. His signature acknowledged receipt, the judgment said, rather than agreement with the statements’ contents. The Garda signed both forms immediately afterwards, and Mr Gorecki kept one.

Judge O’Shea concluded that this sequence caused no unfairness, prejudice or detriment to the accused’s fair-trial rights. He therefore ruled the statements admissible and refused the application for a direction. The judgment records no verdict or final outcome on the driving charge.

Read the original court judgment

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