DPP (Garda James Reynolds) v Burke

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 03 October 2018
• Neutral Citation: [2018] IEHC 554
• Court: High Court
• Docket Number: [2017 No. 1253 S.S.]
• Date: 03 October 2018

[2018] IEHC 554

THE HIGH COURT

Binchy J.

[2017 No. 1253 S.S.]

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (GARDA JAMES REYNOLDS)

PROSECUTOR

AND

STEPHEN BURKE

ACCUSED

Case stated – Dangerous driving – Admissibility of evidence – District Judge seeking the opinion of the High Court – Whether an answer given by an accused person pursuant to a question put to him under s. 107 of the Road Traffic Act 1961 may be admitted in evidence against him in a prosecution for an offence under the 1961 Act

Facts: The accused, Mr Burke, on 23rd March, 2017, appeared before Bray District Court, Co. Wicklow, charged with two counts of dangerous driving. At the conclusion of Garda Reynolds’ evidence, the accused submitted to the court that the evidence that Garda Reynolds had obtained from the accused that he was driving the vehicle constituted an involuntary statement in law because it had been provided in response to a demand made by Garda Reynolds of the accused pursuant to s. 107 of the Road Traffic Act 1961. Accordingly, the accused submitted that that admission could not be used in evidence against him. The court did not determine the proceedings and decided to state a case on the issue. The District Judge certified the following questions of law for determination by the High Court: (a) Given that the transcript reflected that the information was provided pursuant to the statutory demand, and both parties accepted that to be so, was the District Judge right to find that the information provided by Mr Burke was not provided by him following a demand made pursuant to legislation? (b) If no, does it follow that the information provided by the accused was, in fact, pursuant to a demand made pursuant to s. 107 of the 1961 Act? (c) Is an answer provided pursuant to the section voluntary and admissible as evidence in subsequent criminal proceedings? At the hearing of the case stated, the parties agreed that question (c) was unnecessarily broad in its scope, and could be reformulated so as to ask whether an answer given by an accused person pursuant to a question put to him under s. 107 may be admitted in evidence against him in a prosecution for an offence under the 1961 Act?

Held by the Court that the only reasonable inference that could be drawn from the evidence was that the accused made the statement that he did to Garda Reynolds pursuant to the demand made by Garda Reynolds under s. 107; that being the case, the statement made by the accused could not be regarded as a voluntary statement. The Court therefore held that although the first two questions asked by the District Judge in the consultative case stated related to matters of fact, they may be answered in this case because the conclusion reached by the District Judge as to the admissibility of the statement made by the accused was wholly unsupported by the evidence and must be set aside. The Court held that the second question asked by the District Judge should be answered in the affirmative; the statement made by the accused was indeed made pursuant to a demand made by Garda Reynolds under s. 107.

The Court held that the answer to the third question posed by the District Judge (as modified in the manner indicated above) was that a statement made by an accused person in response to a demand made by a garda pursuant to s. 107 is admissible in subsequent criminal proceedings.

Case stated.

JUDGMENT of Mr. Justice Binchy delivered on the 3rd day of October, 2018

1 This matter comes before the Court by way of consultative case stated by District Judge David Kennedy dated 7th November, 2017.

2 On 23rd March, 2017 the accused appeared before Bray District Court, Co. Wicklow, charged with two counts of dangerous driving. The offences were alleged to have occurred on the N11 on 13th January, 2016, at two locations, the Glen of the Downs, Delgany, Co. Wicklow and Kilmurry South, Co. Wicklow. The prosecuting garda, Garda Reynolds, gave evidence that on that date he observed a motorcycle being driven dangerously at the two locations in respect of which summonses were issued. He was unable to obtain a complete registration number for the vehicle but obtained sufficient segment of the registration number to match it to a vehicle fitting the description of the motorcycle that he had observed. This led Garda Reynolds to call to the house of the accused on 16th January, 2016, at 11.38a.m. Garda Reynolds inquired of the accused as to who was driving the motor vehicle on the date and at the time he observed it on the N11. He confirmed that he requested this information pursuant to and having referred specifically to s. 107(4) (hereinafter referred to as ‘s. 107’) of the Road Traffic Act 1961 (the ‘act of 1961’), which provides as follows:-

‘(4) Where a member of the Garda Síochána has reasonable grounds for believing that there has been an offence under this Act involving the use of a mechanically propelled vehicle or a pedal cycle —

(a) the owner of the vehicle shall, if required by the member, state whether he or she was or was not actually using the vehicle at the material time and, if he or she fails to do so, commits an offence,

(b) if the owner of the vehicle states that he or she was not actually using it at the material time, he or she shall give such information as he or she may be required by the member to give as to the identity of the person who was actually using it at that time and, if he or she fails to do so, commits an offence unless he or she shows to the satisfaction of the court that he or she did not know and could not with reasonable diligence have ascertained who that person was, or

(c) any person other than the owner of the vehicle shall, if required by the member, give any information which it is in his or her power to give and which may lead to the identification of the person who was actually using the vehicle at the material time and, if he or she fails to do so, commits an offence.

(5) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding €2,000.

3 Garda Reynolds confirmed to the court that he informed the accused that he would be committing an offence by not telling Garda Reynolds who was driving the motorcycle on the date in question. However, the accused, on three occasions, informed Garda Reynolds that he did not know who was driving the vehicle on that date. Garda Reynolds said that he reminded the accused on several occasions that he would be committing an offence by not telling Garda Reynolds who was driving the vehicle, but the accused persisted in stating that he did not know who was driving.

Garda Reynolds also informed the court that as he was leaving the house of the accused, the accused's partner asked Garda Reynolds how Garda Reynolds could be contacted. Garda Reynolds gave his contact details.

4 Later that day, Garda Reynolds received a message to say that the accused had been looking for him. He returned the call to the accused at 2:11pm on that day. The evidence of Garda Reynolds as to this conversation, as recorded in the transcript sent forward with the consultative case stated, is as follows:-

‘I talked to Stephen Burke who formally said, ‘I was driving the bike on N11 that morning.

Judge, I cautioned him immediately. I understood – I asked him did he understand the caution. He says ‘yes’. After cautioning him, he said:

‘is that serious? I don't recall any serious incident or accident’.’

5 Under cross-examination by the solicitor for the accused, Mr. Maloney, Garda Reynolds drew a distinction between issuing a caution to the accused and demanding information from him pursuant to s. 107. This is apparent from the following exchange recorded in the transcript:-

Garda Reynolds: ‘when he admitted on the phone call that he was the driver, I cautioned.’

Mr. Maloney: ‘No. No, No. Let's go to back to house, because you have told us in your evidence, and I am picking this up from your evidence, when you went in, you were satisfied as that stage to administer a caution to him; isn't that correct?’

Garda Reynolds: ‘Judge, I didn't say I cautioned him. I actually informed him, being the registered owner, that I made the requirement of him to – under the Road Traffic Act to tell me who was driving the vehicle that morning.’

Mr. Maloney: ‘And that's under section 107?’

Garda Reynolds: ‘I think it…’

Mr. Maloney: ‘It's what you say in your statement?’

Garda Reynolds: ‘That would be correct then.’

6 The accused did not give any evidence at the hearing before the District Court on 23rd March, 2017. It appears that the only evidence was that given by Garda Reynolds. Garda Reynolds accepted that the accused in, stating that he was driving the motor vehicle at the date and time in question, did so in response to the requirement made by Garda Reynolds. Garda Reynolds did not have any other evidence sufficient to establish that the accused was driving the vehicle on the occasion in question.

7 At the conclusion of Garda Reynolds” evidence, Mr. Maloney submitted to the court that the evidence that Garda Reynolds had obtained from the accused that he was driving the vehicle constituted an involuntary statement in law because it had been provided in response to a demand made by Garda Reynolds of the accused pursuant to s. 107 of the Act of 1961. Accordingly, it was submitted on behalf of the accused that that admission could not be used in evidence against him.

8 The District Judge adjourned the matter for three weeks to allow the parties to make written submissions on this issue. The consultative case stated records that having heard the submissions of the parties on that date, the District Judge ruled that:

‘because there had been a gap between the making of the demand under the legislation and furnishing of the information, that the information...