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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. O’Rourke [2003] IEHC 33 (17 February 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/33.html Cite as: [2003] IEHC 33 |
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[2002 No. 2244 S.S.]
BETWEEN
Appellant
Respondent
JUDGMENT of Mr. Justice Aindrias O Caoimh delivered the 17th February, 2003.
This is an appeal by way of case stated from a decision of Judge John P. Brophy, a judge of the District Court assigned to District No. 10. pursuant to s.2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961 on the application in writing of the appellant (hereinafter referred to as 'the Director'), he being dissatisfied with the determination in the above entitled proceedings as being erroneous in point of law, for the opinion of the High Court.
At a sitting of the District Court at Navan, County Meath on 28th November, 2001 the respondent appeared before Judge Brophy to answer two complaints the subject matter of two summonses served upon him in which he was charged with the offence of (a) dangerous driving and (b) driving with an excessive concentration of alcohol contrary to s.49 (2) and (6a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act, 1994 as amended by the Road Traffic Act, 1995, as amended.
At the hearing of the charges the Director was represented by Inspector Patrick Gannon of An Garda Siochana and Mr. John Martin, Barrister at Law, instructed by Patrick Tallon & Co., Solicitors of Main Street, Ashbourne, County Meath appeared on behalf of the respondent.
The case stated recites that the following facts as proved or admitted or agreed and as found by Judge Brophy were as follows:
(a) Early in the morning of June 24th 2001, Garda John C. Moroney, of the Traffic Unit, An Garda Siochana, Kells, County Meath, was travelling in an unmarked patrol car being driven by Garda Tony Gavigan. At Flemingstown, Navan, Co. Meath, a public place, Garda Moroney saw motor vehicle registration number 95 D 21830 emerge from a side road onto the N2 between Ashbourne and Slane, Co. Meath. Motor vehicle registration number 95 D 21830 did not slow down on its approach and took the junction at speed. It drove into the path of the patrol car, forcing Garda Gavigan to brake suddenly in order to avoid a collision. The vehicle drove onto the hard shoulder and continued to be driven at speed for some distance. Garda Moroney activated the siren and blue light on the patrol car. The vehicle failed to stop or slow down. At Tuiterath, Navan, Co. Meath, a public place, motor vehicle registration number 95 D 21830 slowed down and turned into a house.
(b) Garda Moroney alighted from the patrol car and approached the driver's door of the vehicle. The driver identified himself as Bernard O'Rourke of 1 St. Oliver Plunkett Park, Kentstown, Navan, Co. Meath, the respondent herein. At 2.05 a.m., Garda Moroney arrested the respondent under the provisions of s.53(6) of the Road Traffic Act. He informed him that it was for dangerous driving and cautioned the respondent in the usual manner. As he accompanied the respondent to the patrol car, Garda Moroney detected a strong smell of alcohol from the respondent's breath. He observed that the respondent's speech was slurred and his eyes bloodshot. Garda Moroney formed the opinion that the respondent was incapable of having proper control of a motor vehicle due to the consumption of an intoxicant and that he had committed an offence under s.49(1), (2) or (3) of the Road Traffic Acts. Garda Moroney then informed the respondent of his opinion.
(c) The respondent was conveyed to Navan Garda Station, where he arrived at 2.25 am. He was introduced to Garda Clarke, member in charge of Navan Garda Station. Garda Clarke completed the custody record in respect of the respondent and complied with s.8(1) of the
Criminal Justice (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987. Garda Clarke handed the respondent a copy of Form C.72(s) - Notice of Rights, read it over and explained it to him. The respondent acknowledged that he understood its contents.
(d) Dr. Gujral, a registered medical practitioner, arrived at Navan Garda Station at 3.19 am. Garda Moroney introduced Dr. Gujral to the respondent as the designated doctor and introduced the respondent to Dr. Gujral. In Dr. Gujral's presence, Garda Moroney required the respondent to permit Dr. Gujral to take a specimen of blood from him or, at his option, to provide the doctor with a sample of his urine under s.13 (1)(b) of the Road Traffic Act, 1994. Garda Moroney informed the respondent that a refusal or failure to comply with the requirement was an offence and explained the consequences of such a refusal.
(e) The respondent chose to give a sample of his blood. In his presence, Garda Moroney handed Dr. Gujral a box for the taking of a blood sample provided by the Medical Bureau of Road Safety marked 'B'. Dr. Gujral broke the seals and removed the contents. The respondent provided Dr. Gujral with a sample at 3.25 am. Dr. Gujral complied with the provisions of s.18 of the Road Traffic Act, 1994 in dealing with the sample. He handed Garda Moroney two sealed containers, signed the certificate and handed it to him. Garda Moroney handed the respondent a pink certificate and offered him the choice of either sample, informing him of his right to retain either. The respondent took the slip and one of the samples. Garda Moroney then placed the remaining sample, along with the prescribed form, in a box addressed to the Medical Bureau of Road Safety, which was then sealed in the presence of the respondent and Dr. Gujral.
(f) On June 25th, 2001, Garda Moroney posted the sealed box by registered post to the Medical Bureau of Road Safety. He subsequently received a certificate from the Medical Bureau of Road Safety dated July 2nd, 2001 showing that the respondent had a concentration of 139 milligrams of alcohol per 100 millilitres of blood.
The case stated recites that at the conclusion of the prosecution case Mr. Martin of counsel submitted that the opinion formed by Garda Moroney was invalid,
since he was on private property at the time he did so and he had arrested the respondent under s.53 (6) of the Road Traffic Acts. In response, Inspector Gannon pointed out that the offences with which the respondent was charged were alleged to have taken place in a public place. The procedures followed by Garda Moroney upon and after the respondent's arrest were valid.
Judge Brophy indicates that on the basis of the submissions made on the respondent's behalf he dismissed the charge against the respondent under s.49 (2) of the Road Traffic Acts. He convicted the respondent of the charge under s.53 of the Road Traffic Acts and imposed a monetary penalty and a disqualification for the period of twelve months and ordered that his licence be endorsed.
The opinion of this court is requested as to whether the said determination in dismissing the charge against the respondent under s.49 (2) of the Road Traffic Acts was correct in law.
Submissions:
On behalf of the Director of Public Prosecutions, Mr. Anthony Collins of counsel stresses the fact that the accused was arrested under the provisions of s.53(6) of the Road Traffic Acts by Garda Moroney who formed the opinion that the accused was incapable of having proper control of a motor vehicle due to the consumption of an intoxicant and that he had committed an offence under s.49 (1), (2) or (3) of the Road Traffic Acts. At this time, the accused was on the driveway of a private dwelling house, which was neither owned nor occupied by the accused.
It is submitted that the District Judge erred in law in dismissing the charge against the accused because the arrest in question was effected on private property. Counsel refers to the fact that s.53 (6) gives a member of An Garda Siochana power to arrest without warrant where he is of opinion that a person has committed an offence under that section. Section 13 (1) (b) of the Road Traffic Act, 1994 ('the Act of 1994') provides, inter alia, that where a person is arrested under s.53(6) and a member of An Garda Siochana is of opinion that the person has consumed an intoxicant, he may, at a Garda Siochana station, require the person either to permit a designated doctor to take from the person a specimen of his blood, or at the option of the person, to provide for the designated doctor a specimen of his urine.
In light of the requirement that may be made of a person validly arrested under s.53 (6), counsel submits that it is difficult to understand how the fact that the accused was arrested under the section is capable of having any consequence for the admissibility of the evidence obtained thereafter in compliance with the provisions of s.13 of the Act of 1994.
Counsel relies upon the fact that the property in question was not owned or occupied by the accused and there was no evidence that the property owner had not given An Garda Siochana an implied authority to enter onto the forecourt of his premises for the purpose of enforcing the law or preventing a breach thereof. In support of his submission that the arrest in question was lawful, counsel refers to the dicta of O'Flaherty J. (nem. diss.) in Director of Public Prosecutions v. Forbes [1994] 2 I.R. 542, 548 where he stated:
"Section 49(6), of the Act provides that a member of the Garda Siochana may arrest without warrant a person who in the member's opinion is committing or has committed an offence under the section. The offence, of course, must be committed in a public place but provided the Garda does no breach any constitutional or legal right of another, he is entitled to go on other property to effect an arrest. Here there is no question that the gardai were trespassers. It must be regarded as axiomatic that any householder gives an implied authority to a member of the garda to come onto the forecourt of his premises to see to the enforcement of the law or prevent a breach thereof. It will be clear that this case is not concerned with any question of entering a dwelling house and, therefore, there is not in the instant case any question of any form of implied waiver of any constitutional right. Further, like any implied authority, it is an implication which the evidence may, on occasion, rebut. Clearly, in this case, the gardai were acting in the execution of their duties. They saw a car which was driven suspiciously, to say the least; it went up a side road and into the driveway of a private dwelling. Could it be said what danger the driver of such car might have posed for the occupants of that dwelling house? In the circumstances of this case, the gardai were clearly acting in the execution of their duties. This must be the acid test because they cannot be regarded as acting in the execution of their duties if they breach anyone's constitutional or legal rights (unless in an extreme situation, such as in the defence of life or limb). For them to have ignored the defendant's conduct on this occasion
would have bordered on a dereliction of duty on their part. To suggest that they would be perfectly entitled to arrest the defendant if he was on the public road but not if he was on a third party's property would constitute, as was suggested in the course of debate before us, a massive absurdity."
Counsel submits that the circumstances of this case are on all fours with those of the instant case.
On behalf of the accused, it is submitted by Mr. Michael Counihan S.C. that it is common case that there was no opinion formed at the time of the arrest of an offence contrary to s.49 having been committed. Counsel refers to the fact that there is no statutory right under s.53 to go onto private property. Counsel refers to the fact that the accused was at no time arrested contrary to s.49 of the Road Traffic Act and the arrest in question was one effected under s.53 (6).
Counsel submits that the legislation left nothing to chance.
Counsel submits that s.39 of the Act of 1994 represents part of a new code. Counsel submits that it is most notable that s.53 does not appear to be referred to in s.39 (2) as an offence in respect of which the Gardai may enter onto private property to effect an arrest. Counsel submits that in the absence of express authority it cannot be inferred that such a power exists, especially since the passing of the Act of 1994. Counsel refers to the authority of Director of Public Prosecutions v. Greeley [1985] ILRM 320 where at p. 324, Barrington J. stated, inter alia, as follows:
"I do not think that the present case should properly be regarded as a case where evidence has been obtained in breach of the defendant's constitutional or legal rights. The problem is that s.23 of the Road Traffic Act, 1978 makes prima facie evidence a certificate which, without that express statutory enactment, would not be evidence at all."
Counsel submits that in the instant case there was no express statutory enactment to enter upon the private property to effect an arrest under s.53 (6). Counsel submits that a valid arrest is a necessary pre-condition to the exercise of the power contained in s.13 of the Act of 1994.
Counsel further refers to the judgment of Hederman J. in Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 where he stated, inter alia, at p. 250:
"An offence under s.13, sub-s.3 cannot, therefore, be committed unless (a) the driving or attempted driving of the vehicle took place in a public place, and (b) the driver was validly arrested, and (c) he had been brought (in custody) to a garda station."
Counsel further refers to the judgment of Walsh J. in Director of Public Prosecutions v. Gaffney [1987] I.R. 173 where he stated, inter alia, at p.180: "Notwithstanding the decision of O'Hanlon J. in Director of Public Prosecutions v. Closkey (Unreported, High Court, 6th February, 1984) and the English decision of Morris v. Beardsmore [1981] A.C. 446, it is my view that the absence of an express refusal or of an express order to leave cannot be construed as an implied invitation or permission to enter, particularly in the circumstances of the case."
Counsel refers to the judgment of McCarthy J. in Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 where he stated, inter alia, at pp. 255-256:
"The relevant sections of the Act of 1978, including that substituting a new s.49 inn the Act of 1961, clearly anticipate an offence committed in a public place and, possibly, also an arrest in such place. Whatever that case may be, if there is to be an arrest carried out in a private place by a garda who is a trespasser, such a mode of arrest requires express statutory provision in order to justify it at law. There is no such provision accordingly, the purported arrest here was unlawful."
Counsel submits that there must be a distinction drawn between the law prior to the enactment of the Act of 1994 and that subsequent thereto. Counsel submits that the Act of 1994 presupposes a valid opinion as a pre-condition to a valid arrest. Counsel submits that there was a trespass in the instant case which was not provided for in the Act of 1994.
In reply, counsel for the Director submits that the arrest in the instant case was valid and that the evidence obtained was admissible. With regard to the suggestion that the provisions of s.39 of the Act of 1994 overruled the decision of the Supreme Court in Director of Public Prosecutions v. Forbes [1992] 2 I.R. 542, counsel submits
that it had no such effect but that s.39 (2) conferred a power in the gardai which was not that confirmed to exist in the decision of the Supreme Court. Counsel submits that the enactment of the Act of 1994 does not affect the validity of the decision in Director of Public Prosecutions v. Forbes.
Counsel refers to a passage from the judgment of O'Flaherty J. with whom the other members of the Court agreed where he stated at p.548 in reference to the passage from the judgment of McCarthy J. in Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 quoted above:
"Insofar as this passage in the judgment of McCarthy J. suggests that it might be necessary for the arrest, as well as the driving, to take place in a public place, I am unable to share that view which, of course, was clearly an obiter statement and in any event was put forward only as a possibility."
Counsel refers to the fact that the McCreesh case and the case of Director of Public Prosecutions v. Gaffney [1987] I.R.177 were considered by the Supreme Court in Director of Public Prosecutions v. Forbes.
Counsel re-iterates that there is no evidence in the instant case of an unwillingness to allow the Gardai to enter onto the private property in question. In contrast, in Director of Public Prosecutions v. Gaffney [1987] I.R. 177 there was evidence of such unwillingness.
Conclusions
I am satisfied that this case is clearly governed by the decision of the Supreme Court in Director of Public Prosecutions v. Forbes. With regard to the Act of 1994 and in particular s.39 (2) thereof, it authorised the Gardai to enter onto private property in circumstances where the entry might constitute a trespass. On the other hand., the decision in Director of Public Prosecutions v. Forbes which related to an implied authority to enter onto private property such that the entry in question would not constitute a trespass at all. The Act of 1994 has no bearing on the decision of the Supreme Court in Director of Public Prosecutions v. Forbes.
In light of this conclusion I am satisfied that I must answer the case stated in the negative.
