The High Court quashed a woman’s conviction for failing to provide a breath sample and directed that she face no further trial, concluding that the way her trial was conducted made a retrial unfair.
The judgment, delivered by Ms Justice Clark on 9 December 2008, followed an agreement between the parties that the conviction and sentence should be quashed. The remaining issue was whether the prosecution should return to the District Court for a fresh hearing or end without a retrial.
The applicant had been arrested under road traffic legislation and asked at a garda station to provide a breath sample. She did not provide one and was charged with refusing or failing to comply with the request. At trial, she pleaded not guilty. After the prosecution case, her lawyer sought a direction to acquit on three grounds, but the judge rejected the application without giving reasons.
The applicant then gave evidence that she could not provide enough breath and had not been given enough time. Her medical practitioner gave evidence that she had a chest infection on the day of her arrest. At the end of the case, the trial judge stopped the applicant’s counsel from making further legal submissions and said: “I am convicting your client.” The applicant was convicted, disqualified from driving for four years and fined €600.
The Director of Public Prosecutions argued that no valid hearing had taken place and that the case could be reheard. The applicant argued that she had been tried by a court with jurisdiction, but that breaches of fair procedures meant the quashing of her conviction should prevent a second prosecution.
Clark reviewed earlier decisions on when a case can be sent back after a conviction is quashed. She distinguished cases involving a court that lacked jurisdiction from cases where unfairness arose in the conduct of a hearing before a court with jurisdiction. She said the applicant had participated in a full hearing, including giving evidence and calling a witness, so the proceedings were not void from the outset.
The judge said a fresh hearing could not restore the applicant’s lost opportunity to be acquitted at a fair first trial. It would leave her in a less advantageous position than an accused person appearing for the first time at a properly conducted trial. Although the court had not decided the prosecution case on its merits, Clark held that it would be wrong to remit it for rehearing. She quashed the order of 11 June 2007 and directed that no further trial take place.