The High Court allowed Colm Fitzpatrick’s appeal by way of case stated after finding that oral evidence of a breath-test statement’s contents was inadmissible in the circumstances of his prosecution. The court answered “no” to the District Court judge’s question about whether the statement had to be adduced to convict, but held that the prosecution could not rely on oral evidence of its contents without accounting for the missing original.
Fitzpatrick had been convicted in the District Court of an offence under section 50 of the Road Traffic Act 1961. The District Court imposed a €1,000 fine, payable within three months, with 90 days’ imprisonment in default, and disqualified him from driving for three months from 1 August 2004.
The case stated recorded that Garda Fergal Reynolds arrested Fitzpatrick at 2am on 17 December 2003 on suspicion of driving after consuming alcohol. At Mullingar Garda Station, Reynolds required him to provide two breath specimens. The machine produced two identical statements, each of which Fitzpatrick signed; he returned one to the Garda. The recorded reading was 41 microgrammes of alcohol per 100 millilitres of breath.
At the close of the prosecution case, Fitzpatrick’s counsel sought dismissal, arguing that a statement prepared under section 17 of the Road Traffic Act 1994 was essential evidence and had not been tendered. The District Court judge rejected the application, relying on an English case, and held that Fitzpatrick had a case to answer. The prosecution did not apply to reopen its case to produce the statement. After hearing evidence from Fitzpatrick and Mr Lawless, the judge convicted him.
Justice O’Neill held that the statement could be proved by lawful means other than production, and that section 21(1) of the 1994 Act gave a statement tendered in evidence statutory presumptions about its contents and the Garda’s compliance with legal requirements. But the judgment treated the statement as a document subject to the best evidence rule. Without the original, secondary evidence of its contents required evidence that it had been lost or destroyed, or that producing it was otherwise physically or legally impossible. The case stated gave no such explanation, so the oral evidence about the reading was inadmissible.
The judgment noted that section 30 of the Criminal Evidence Act 1992 could allow a properly authenticated copy to be produced without proof that the original was lost or unavailable. The case stated did not indicate that the prosecution had tried to rely on a copy or that section. The High Court allowed the appeal and answered the stated question in the negative; it did not state a replacement sentence or further order in the supplied judgment.