DPP (Dooley) v Lynch

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1998
• Docket Number: [1996 No. 859 SS]
• Date: 01 January 1998

High Court

[1996 No. 859 SS]

Director of Public Prosecutions (Dooley) v. Lynch

In the matter of s. 2 of the Summary Jurisdiction Act, 1857 and in the matter of s. 51 of the Courts (Supplemental Provisions) Act

1961.

The Director of Public Prosecutions (at the suit of Garda C. Dooley)

Prosecutor

and

Harry Lynch

Respondent

Case mentioned in this report:-

Director of Public Prosecutions v. Forbes [1994] 2 I.R. 542; [1993] I.L.R.M. 817.

Criminal law - Arrest on private property - Whether implied authority to enter onto private property - Whether burden of proof includes obligation to show defendant had no interest in property - Road Traffic Act, 1961 (No. 24), ss. 49(8) and 50(10) - Road Traffic Act, 1994 (No. 7), s. 39(2).

Case stated.

The facts are summarised in the headnote and are fully set out in the judgment of Costello P., infra.

The respondent was prosecuted in the District Court on the 9th November, 1995, when certain charges were dismissed. It came before the High Court on appeal by way of case stated pursuant to s. 2 of the Summary Jurisdiction Act, 1857, as extended by of s. 51 of the Courts (Supplemental Provisions) Act, 1961, upon an application by the prosecution.

The matter was heard by the High Court (Costello P.) on the 30th April, 1997.

Section 39(2) of the Road Traffic Act, 1994, provides:-

"A member of the Garda Síochána may for the purpose of arresting a person under section 49(8) or 50(10) of the Principal Act [the Road Traffic Act, 1961] enter without warrant (if need be by use of reasonable force) any place (including the curtilage of a dwelling but not including a dwelling) where the person is or where the member, with reasonable cause, suspects him to be."

In the instant case, a member of the gardaí followed the respondent onto private property and arrested him under s. 49(8) of the Road Traffic Act, 1961. The respondent was charged, inter alia, with driving with an excess of alcohol. That charge was dismissed by the District Court and a case was stated to the High Court.

It was argued by the respondent that the entry onto private property in this case was not validated by s. 39 of the Act of 1994, as it was effected for the purpose of investigating whether or not an arrestable offence had occurred, as the member in question had not formed a valid opinion which could lead to the arresting of the respondent under s. 49(8) or s. 50(10) of the Act of 1961.

The Director of Public Prosecutions accepted that the entry was not validated by s. 39 of the Act of 1994 but sought to rely on the principle established in Director of Public Prosecutions v. Forbes[1994] 2 I.R. 542, where it was held that a householder must be regarded as giving implied authority to a member of the...