Doyle v Judge Connellan & DPP

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 09 July 2010
• Neutral Citation: [2010] IEHC 287
• Court: High Court
• Date: 09 July 2010

DOYLE v JUDGE MURROUGH CONNELLAN & ORS

JUDICIAL REVIEW

BETWEEN

PHELIM DOYLE

APPLICANT

AND

JUDGE MURROUGH CONNELLAN AND THE DIRECTOR OF PUBLIC PROSECUTION

RESPONDENTS

[2010] IEHC 287

197 JR/[2009]

THE HIGH COURT

CRIMINAL LAW

Judicial review

Road traffic conviction - Trial in due course of law - Driving while under influence of drugs - Caution - Power of arrest - Adequacy of evidence - Delay in seeking judicial review - Alternative remedy of appeal - Whether breach of constitutional justice - Whether proceedings fundamentally flawed - Whether incapable of having proper control of vehicle - Whether alternative remedy - Whether appeal appropriate remedy - Whether delay - Sweeney v Brophy [1993] 2 IR 202; Buckley v Kirby [2000] 3 IR 431 and Lennon v District Judge Clifford [1992] 1 IR 382 - Road Traffic Act 1961 (No 24), s 49 - Road Traffic Act 1994 (No 7), s 14(2) - Misuse of Drugs Act 1977 (No 12), s 23 - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21(1) - Relief refused (2009/197JR - Kearns P - 9/7/2010) [2010] IEHC 287

Doyle v Judge Connellan

Facts: The applicant was given leave to apply for an order of certiorari quashing an Order of the first named respondent made convicting the applicant of an offence under s. 49 Road Traffic Act 1961, as amended, of driving under the influence of an intoxicant. The applicant contended that the conduct of the trial by the first named respondent amounted to a breach of constitutional justice so as to deprive the applicant of the right to a fair trial. The applicant alleged that the manner in which the respondent had interpreted s. 49 failed to recognise that there were two ingredients in the offence for drinking driving and not one, i.e. evidence of being under the influence of an intoxicant and proof that the accused was incapable of being in proper control of a mechanically propelled vehicle.

Held by Kearns P. that the present application for relief could not proceed as the appropriate remedy was to proceed by way of appeal on the question of the adequacy of the evidence. The delay in seeking a remedy was excessive. None of the affidavits sworn gave an explanation for the lack of promptness in seeking leave.

Reporter: E.F.

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2006 S18

MISUSE OF DRUGS ACT 1977 S23

ROAD TRAFFIC ACT 1994 S14(2)

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S14(3)

ROAD TRAFFIC ACT 1994 S49(8)

DE BLACAM DRUNKEN DRIVING & THE LAW 3ED 1995 2.05

SWEENEY v BROPHY 1993 2 IR 202

BUCKLEY v KIRBY 2000 3 IR 431

LENNON v DISTRICT JUDGE CLIFFORD 1992 I IR 382

HALSBURYS LAWS OF ENGLAND 3ED VOL 11 119

RSC 1986 O.84 r21(1)

1 JUDGMENT of Kearns P. delivered the 9th day of July, 2010

2 By Order of the High Court (Charleton J.) made on the 23 ^rd February, 2009, the applicant was given leave to apply by way of an application for judicial review for an order of certiorari quashing the Order of the first named respondent made on the 14 ^th October, 2008, convicting the applicant of an offence under s. 49(1) and (6)(a) of the Road Traffic Act, 1961 (hereinafter to be referred to as "the Act of 1961, as amended") as inserted by s. 10 of the Road Traffic Act 1994, as amended by s. 18 of the Road Traffic Act 2006.

3 The principal ground upon which relief is sought is the assertion on behalf of the applicant that the conduct of the trial by the first named respondent amounted to a breach of the fundamental tenets of constitutional justice so as to deprive the applicant of a trial in due course of law and that the proceedings, when considered in the light of all of the complaints made by the applicant, were so fundamentally flawed that they are susceptible to judicial review and an order of certiorari.

BACKGROUND

4 The application is grounded on the affidavit of David Tarrant, the applicant's solicitor, sworn on the 20 ^th of February, 2009, wherein he deposes that on the 2 ^nd November, 2007, the applicant was stopped by Garda Seamus O'Brien of Wicklow Garda Station at Ballinabarney, Rathnew, County Wicklow. On the occasion in question, Garda O'Brien had been on duty as an observer in a patrol car when he formed the opinion that the applicant had performed a "power slide", or had used the handbrake to skid around a roundabout. He was also of the opinion that the applicant's car was travelling at speed. He and his colleague pursued the applicant's vehicle and the same came to a halt. On approaching the vehicle, Garda O'Brien in his affidavit deposed that the applicant was exhibiting signs of intoxication. He gave evidence before the respondent that the irises of the applicant's eyes were unusually large and that he exhibited slowness of movement. He also gave evidence that he smelt cannabis emanating from the vehicle.

5 It is common case that Garda O'Brien then carried out a search of the vehicle pursuant to s. 23 of the Misuse of Drugs Act 1977 (as amended) as he suspected that the applicant was in possession of controlled drugs. In the course of this search, he found a yellow cannabis grinder with traces of what appeared to be cannabis on it. Garda O'Brien gave evidence of a conversation with the applicant in which he admitted ownership of the cannabis grinder and admitted having consumed cannabis within the previous twenty-four hours. From the answers received, Garda O'Brien formed the opinion that an offence had been committed.

6 In his statement of proposed evidence, Garda O'Brien said he then formed the opinion that Mr. Doyle had committed an offence under s. 14(2) of the Road Traffic Act 1994, as amended. However, his evidence in court was to the effect that in his opinion the applicant had committed an offence contrary to s. 49 of the Act of 1961, as amended, on the basis of the manner of driving, the appearance and manner of the applicant.

7 In his statement of proposed evidence, Garda O'Brien further stated that having informed the applicant of his opinion that an offence under s. 14 of the Road Traffic Act 1994 had been committed, he then invited the applicant to accompany him to Wicklow Garda Station and informed the applicant that if he did not do so voluntarily he would arrest him under s. 14(3) of the Act. His statement of proposed evidence goes on to relate that the applicant declined to accompany him and as a result Garda O'Brien arrested the applicant under s. 14(3) of the Road Traffic Act 1994. However, in court Garda O'Brien gave evidence that he effected the arrest of the applicant under s. 49(8) of the Act of 1961, as amended.

8 Following arrest, the applicant was brought to the Garda Station where a blood sample was taken which resulted in a negative result for alcohol but a positive result for cannabis.

9 In his affidavit, Mr. Tarrant states that he cross-examined Garda O'Brien with a view to determining whether Garda O'Brien had carried out a sobriety test of any nature, or otherwise satisfied himself as to what degree the applicant was under the influence of an intoxicant. In reply, Garda O'Brien stated that he was satisfied as to the state of the applicant's intoxication from the manner of his driving, the fact that his irises were dilated and from the admission that he had consumed cannabis within the previous twenty-four hours. He did, however, concede in cross-examination that he had carried out no other tests such as inviting the applicant to walk a white line, nor did he give any evidence that the applicant displayed any physical signs of intoxication by way of slurred speech, unsteadiness or otherwise.

10 At the conclusion of the prosecution case, Mr. Tarrant applied for a direction for a number of reasons, including that the law did not prohibit the applicant having drugs in his system while driving, but rather prohibited him from driving with drugs in his system to such an extent that he was incapable of having proper control of the vehicle. He submitted there was no such evidence. He further submitted that if an offence had...