Dougal v Mahon

• Jurisdiction: Ireland
• Judge: Mr. Justice Gannon
• Judgment Date: 02 December 1988
• Neutral Citation: [1988] IEHC 16
• Docket Number: JR 126/1988
• Court: High Court
• Date: 02 December 1988

DOUGAL v. MAHON

JOHN ANTHONY DOUGAL

APPLICANT

AND

DISTRICT JUSTICE MAHON AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

[1988] IEHC 16

JR 126/1988

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Arrest

Validity - Road traffic - Garda - Powers - Opinion that driver had committed an offence in a public place - District Justice - Personal knowledge of ~locus in quo~ - Knowledge used to supply evidence - On 15/4/88 the applicant was convicted in the District Court of having driven a motor car on 28/12/87 in a public place while he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle, contrary to s. 49, sub-s. 1, of the Act of 1961 - The applicant was also convicted of having failed on said 28/12 to provide a specimen of his urine, when duly requested to do so, contrary to s. 13, sub-s. 3, of the Act of 1978 - On the date of those offences a garda noticed that the applicant's car was being driven in an erratic manner on the Dublin Road, Kilminchy, Portlaoise; the garda followed the applicant's car until it came to a halt "outside the Killeshin Hotel" - The applicant got out of his car at that place when requested to do so by the garda and remained at that place; the garda drove the applicant's car into the hotel car park and, having returned, found the applicant standing at the same place - At the request of the garda (made pursuant to s. 12, sub-s. 1, of the Act of 1978) the applicant exhaled into a breath-analyser and, when that apparatus disclosed the presence of alcohol in the applicant's breath, he was arrested by the garda and taken to a garda station - At the garda station the applicant refused to comply with a garda's requirement that the applicant provide, for a designated registered practitioner, a specimen of the applicant's urine - Having obtained leave, the applicant applied to the High Court for an order of certiorari quashing his convictions on the ground that he had not been a person "in charge of a mechanically propelled vehicle in a public place" when he was asked to provide a specimen of his breath and when he was arrested and that, consequently, his arrest had been unlawful - Section 12, sub-s 1, of the Act of 1978 states that, whenever a member of the Garda Siochana is of the opinion that "a person in charge of a mechanically propelled vehicle in a public place" has consumed intoxicating liquor, such a member may require the person to provide, by exhaling into an apparatus for indicating "the presence of alcohol" in the breath, a specimen of his breath and may indicate the manner in which that person is to comply with the requirement - Section 12, sub-s 2, states that a person who fails to comply with such requirement shall be guilty of an offence, and sub-s. 3 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 section 12 - Although the request to the applicant to provide a specimen of his breath was made pursuant to s. 12, sub-s 1, his arrest was not authorised by sub-s. 3 as he appears to have complied with that request - However, s. 49, sub-s. 6, of the Act of 1961 also 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 this section" - At the hearing of the application there was no evidence to establish the exact position of the applicant when he was arrested; it was averred that the District Justice had stated that he was satisfied, from his own knowledge, that the car park of the said hotel was a public place - Held, in dismissing the application, that the District Justice had been entitled to rely on his own knowledge of the area in front of the hotel and that the applicant had not adduced any evidence to establish that the place where the applicant gave the specimen of his breath and was arrested was not a public place: ~Director of Public Prosecutions v Joyce~ [1985] ILRM 206 and ~Director of Public Prosecutions v Gilmore~ [1981] ILRM 102 considered - Held that the affidavit filed on behalf of the applicant showed that there was evidence on which the District Justice could properly conclude that the garda had formed the opinion, from his observation of the manner in which the applicant's car was being driven in a public place before it stopped at the hotel, that the driver of the car was incapable of having proper control of it - Road Traffic Act, 1961, s. 49 - Road Traffic (Amendment) Act, 1978, ss. 12,13 - (1988/126 JR - Gannon J. - 2/12/88)

|Dougal v Mahon|

EVIDENCE

Judge

~Locus in quo~ - Knowledge - Offence - Proof - Whether offence committed in a public place - Propriety of essential proof being supplied by application of personal knowledge of trial judge - ~See~ Criminal Law, arrest - (1988/126 JR - Gannon J. - 2/12/88)

|Dougal v. Mahon|

GARDA SIOCHANA

Powers

Arrest - Road traffic - Offence - Motor vehicle - Erratic driving observed - Opinion of garda that an offence had been committed - Opinion that driver had driven car in a public place while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle - ~See~ Criminal Law, arrest - (1988/126 JR - Gannon J. - 2/12/88)

|Dougal v. Mahon|

JUDGE

Knowledge

Application - Criminal charge - Proof - Public place - Propriety of essential proof being supplied by judge's personal knowledge of ~locus in quo~ - Criminal Law, arrest - (1988/126 JR - Gannon J. - 2/12/88)

|Dougal v. Mahon|

Citations:

ROAD TRAFFIC (AMDT) ACT 1978 S13(3)

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S4(a)

ROAD TRAFFIC (AMDT) ACT 1978 S10

ROAD TRAFFIC (AMDT) ACT 1978 S13

ROAD TRAFFIC ACT 1961 S49(6)

ROAD TRAFFIC (AMDT) ACT 1978 S12(3)

ROAD TRAFFIC (AMDT) ACT 1978 S12

DPP V JOYCE 1985 ILRM 206

DPP V GILMORE 1981 IR 102

ROAD TRAFFIC (AMDT) ACT 1978 S15(1)

1 Judgment of Mr. Justice Gannon delivered the 2nd day of December 1988.

2 By Order of Barr J. dated the 2nd May 1988 the applicant obtained leave to apply for an Order of Certiorari by way of Judicial Review in respect of two Orders of conviction for offences under the Road Traffic Acts made on the 15th of April 1988. The Order recites that a statement by the Solicitor for the applicant was filed on the 2nd of May 1988. Further, it declares the grounds for application for Judicial Review to be "the grounds set out in paragraph E of the said statement filed on the 2nd of May 1988."

3 The paragraph E mentioned contains ten enumerated subparagraphs the first of which is a statement summarizing the evidence in the District Court. The next following eight paragraphs specify complaints of errors of law alleged to have been made by the District Justice. The tenth and final subparagraph is as follows:

"10. That the applicant stands convicted of an offence under Section 49 (1) and (4a) of the Road Traffic Act 1961as amended and an offence under Section 13 (3) of the Road Traffic (Amendment) Act 1978which convictions were imposed contrary to law and without jurisdiction and in breach of the applicant's legal and constitutional rights and should be quashed."

4 The two offences with which the applicant was charged before the District Justice on the 15th of April 1988 and upon which he was convicted were: firstly, that he drove motor car 223 BZM on the 28th December 1987 at Kilminchy, Portlaoise, in a public place while under the influence of an intoxicant such as to be incapable of having proper control of it contrary to Section 49 of the Road Traffic Act 1961as amended; and, secondly, that on the same date, being a person arrested and brought to the Garda Station and required to provide a specimen of urine for the designated registered medical practitioner, he refused to comply with the request contrary to Section 13 of the Road Traffic (Amendment) Act 1978.

5 Section 49 (1) of the Road Traffic Act 1961as amended by Section 10 of the Road Traffic (Amendment) Act 1978is as follows:

6 a "49(1)(a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.

7 (b) In this subsection "intoxicant" includes alcohol and drugs and any combination of drugs or of drugs and alochol."

8 Section 13 (3) of the Road Traffic (Amendment) Act 1978is as follows:

"(3) A person who, following a requirement under subsection (1) (b),"

(a) refuses or fails to comply with such a requirement, or

(b) refuses or fails to comply with a requirement of a designated registered medical practitioner in relation to the taking under this section of a specimen of blood or the provision under this section of a specimen of urine,

9 shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or, at the discretion of the court, to a fine not exceeding £500, or to both."

10 The subsection 1 (b) therein mentioned namely Section 13 (1) is as follows:-

"Where a person arrested under section 49 (6) of the Principal Act or section 12 (3) has been brought to a Garda station, a member of the Garda Siochana may at his discretion do either or both of the following:-"

(a) require the person to provide, by exhaling into an apparatus for indicating the concentration of alcohol in breath or blood, a specimen of his breath,

(b) require the person either to permit a designated registered medical practitioner to take from the person a specimen of his blood or, at the option of the person, to provide for the designated registered medical practitioner a specimen of the person's urine."

11 As is evident from that subsection the previous arrest of the applicant under Section 49 (6) of the 1961 Act or under Section...