The High Court has refused James O’Keeffe’s application to quash his conviction and sentence for driving while under the influence of an intoxicant, after finding that the District Court judge did not act unfairly by recalling a garda witness to give further evidence.
O’Keeffe was convicted at Ennis District Court on 28 September 2011 of an offence arising from an incident in Killaloe, Co Clare, on 1 March 2010. The District Court imposed a €500 fine and disqualified him from driving for four years.
The judicial review challenge focused on the prosecution case being reopened after it had closed. The prosecution’s sole witness, Garda Jean Barriscale, had described how a urine sample was divided and sealed, and said O’Keeffe was offered and accepted one of the containers. During cross-examination, she had not mentioned giving him a yellow slip explaining his right to retain a sample.
After the prosecution closed, O’Keeffe’s solicitor argued that the statutory procedure had not been proved because the slip had not been given. The District Judge recalled Barriscale and asked whether she had provided it. She said she had. O’Keeffe argued in the High Court that allowing this further evidence gave the prosecution an unfair opportunity to fill a gap in its case.
In a judgment delivered on 18 May 2012, Kearns P. said a District Court judge may, in some circumstances, recall a witness after the prosecution case closes to give formal evidence, but the power must be used sparingly and cannot be used to introduce evidence going to the merits. He concluded that the additional evidence in this case concerned a formal aspect of the procedure.
The judge noted that before the witness was recalled, evidence had already established that O’Keeffe received one of the sealed sample containers. The further evidence was that he had also received the yellow slip, which Barriscale said she had given him. The court found that the sample had been properly required and obtained, and that the slip confirmed a right O’Keeffe had in fact exercised by retaining a sample. It found no resulting prejudice.
The High Court also rejected the claim that the District Judge’s conduct showed bias or unfairness. It distinguished the case from an earlier decision involving a judge’s interventions in support of the prosecution, and concluded that O’Keeffe had not been denied fair procedures. The relief sought was refused; the judgment did not quash the conviction or sentence.