DPP (at the suit of Garda Francis McMahon) v John Rafferty
| Jurisdiction | Ireland |
| Judge | Mr. Justice Charleton |
| Judgment Date | 29 October 2008 |
| Neutral Citation | [2008] IEHC 335 |
| Docket Number | [2008 No. 942 SS] |
| Court | High Court |
| Date | 29 October 2008 |
BETWEEN
AND
[2008] IEHC 335
THE HIGH COURT
CRIMINAL LAW
Road traffic
Drink driving - Summary prosecution - Charge sheet - Whether incorrect identification of location of alleged offence fatal to prosecution - Whether person moving vehicle on direction of garda constitutes voluntary behaviour - Road Traffic Act 1961 (No 24), s 109 - District Court Rules 1997 (SI 93/1997), O 38 - case stated answered in negative (2008/942SS - Charleton J - 29/10/2008) [2008] IEHC 335
DPP (McMahon) v Rafferty
Facts: The opinion of the High Court was sought in relation to whether the learned District Judge was correct as a matter of law in dismissing the prosecution against the accused for drunken driving, in circumstances where the charge sheet identified the location of the offence as being the street where the Garda asked the accused to pull over his car rather than the street where the Garda first stopped the accused? At the close of the prosecution case, it was submitted on behalf of the defendant that the defendant had been driving his car involuntarily on Lower Ormond Quay, having been instructed by the arresting Garda to pull onto that street. The defendant had been initially stopped on Capel Street Bridge. However, the charge sheet before the District Court detailed the offence as having been committed on Lower Ormond Quay.
Held by Charleton J. in allowing the appeal: That on any reasonable view of the facts in this case, the accused was driving his vehicle while intoxicated both in the place where he was first stopped, and in the place to which he was lawfully directed by the Garda to move his vehicle. There was no exemption in law whereby someone pulling his car into a safe location at the direction of a Garda, was immune from liability for drunken driving. It was within the powers of the Garda in this case to direct the defendant to stop his vehicle in a particular place. The interpretation placed by the learned District Judge on the relevant legislation, whilst understandable, was incorrect.
Reporter: L.O'S.
SUMMARY JURISDICTION ACT 1857 S2
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51
ROAD TRAFFIC ACT 1961 S49(4)
ROAD TRAFFIC ACT 1961 S6(a)
ROAD TRAFFIC ACT 2002 S23
ROAD TRAFFIC ACT 1961 S49(8)
ROAD TRAFFIC ACT 1961 S49(1)
ROAD TRAFFIC ACT 1961 S49(2)
ROAD TRAFFIC ACT 1961 S49(3)
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S4
DPP v SHEERAN 1986 ILRM 579
DCR O.38 r1(1)
DCR O.38 r1(2)
DPP v WINSTON UNREP HIGH O'HANLON 25.5.1992 1992/6/1935
THE DISTRICT COURT RULES 1948 SI 431/1947
EDKINS v KNOWLES 1973 QB 748
MISUSE OF DRUGS REGS 1988-1998
HAUGHTON v SMITH 1975 AC 476
HEALY, STATE v DONOGHUE 1976 IR 325
This is an appeal, on a driving charge, by way of Case Stated by District Judge Angela Ní Chondúin 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 of the prosecutor who was dissatisfied with the determination of the learned District Judge as being erroneous in point of law.
The opinion of the High Court is sought on the following question:
Was the learned District Judge correct as a matter of law in dismissing the prosecution in circumstances where the charge sheet identified the location of the offence as being the street where the Garda asked the accused to pull over his car rather than the street where the Garda first stopped the accused?
At a sitting of the District Court held at Richmond District Court on the 26th November, 2007, the defendant appeared before District Judge Ní Chondúin to answer a charge that he had committed an offence contrary to s. 49(4) and 6(a) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994, as amended by s. 23 of the Road Traffic Act 2002. This offence is called drunken driving in ordinary speech. The charge sheet detailed the offence as having been committed on Lower Ormond Quay, Dublin 1.
The circumstances of the incident are central to this appeal. At approximately 10.20 a.m. on the 13th May 2007, Garda Francis McMahon was on bicycle patrol with Sergeant Curran on Capel Street, Dublin 7, when he observed two vehicles driving across Capel Street Bridge in the wrong direction. Garda McMahon stopped the first vehicle which was being driven by the defendant and directed him to pull onto Lower Ormond Quay in order to minimize traffic obstruction.
Garda McMahon spoke with the defendant who claimed to have become confused and taken a wrong turn. During this conversation, Garda McMahon noticed a smell of intoxicating liquor from the defendant and also that his speech was slurred, while his eyes were glazed over. All of these are signs of drunkenness. A request was made for the defendant's name and address, which was complied with.
Garda McMahon then arrested the defendant, pursuant to s. 49(8) of the Road Traffic Act 1961 (as amended), having formed the opinion that the defendant was committing or had committed an offence under s. 49(1), (2), ( 3) or (4) of that Act. The nature of the arrest was explained to the defendant in ordinary language and the usual caution was administered. The defendant was conveyed to Store Street Garda Station where he provided two breath specimens into the machine for analyzing alcohol consumption, called the Lion Intoxiliser, for analysis. The result of the test was 49 microgrammes of alcohol per 100 millilitres of breath. The defendant was charged with drunken driving and then released from custody.
At no time during the course of the hearing was any suggestion made by the defendant or his representatives of any non-compliance with the myriad of statutory requirements surrounding the prosecution of the offence in question. During the course of the trial, however, the defendant's solicitor questioned Garda McMahon in relation to his having ordered the defendant to move his vehicle onto Lower Ormond Quay. Garda McMahon asserted that to leave the vehicle on the bridge would have caused an obstruction and that the road layout dictated that the only safe option was to move the vehicle onto Lower Ormond Quay.
At the conclusion of the prosecution evidence, the defendant's solicitor made an application to the Court to have the case dismissed on the basis that Garda McMahon had instructed the defendant to pull onto Lower Ormond Quay and that, as a result, the defendant had been driving the car involuntarily. The defendant's case was, therefore, that he was incapable of committing an offence as he was driving the car at the behest of a member of An Garda Síochána. His solicitor further submitted that it would have been open to the prosecution to seek to amend the charge sheet so as to insert the correct location of the offence but this had not been done. It was contended that had this been done, the defendant would have been unlikely to have had any defence to the charge.
The prosecution solicitor argued that the case was no different to a situation in which a member of An Garda Síochána asks someone to pull in to a lay-by on the side of the road. He further submitted that no prejudice had arisen as against the defendant and that the prosecution had made its case to the requisite standard of proof.
Having heard all the evidence, the learned District Judge dismissed the case on the stated basis that...
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