DPP (Grant) v Reddy

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 04 February 2011
• Neutral Citation: [2011] IEHC 40
• Court: High Court
• Date: 04 February 2011

[2011] IEHC 40

THE HIGH COURT

[No. 1465 S.S./2010]

DPP (Garda Grant) v Reddy

JUDICIAL REVIEW

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MARK GRANT

PROSECUTOR

AND

ANTHONY REDDY

RESPONDENT

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2006 S18

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S13(1)(A)

RTA 1994 S17

RUTTLEDGE v DISTRICT JUDGE CLYNE & DPP UNREP DUNNE 7.4.2006 2006/50/10720 2006 IEHC 146

DPP v CULLEN UNREP HIGH COURT 2.7.1984 (NO TRANSCRIPT AVAILABLE)

ROAD TRAFFIC ACT 1961 S50

ROAD TRAFFIC ACT 1961 S49(6)(B)

DPP v O'NEILL UNREP EDWARDS 15.2.2008 2009/18/4435 2008 IEHC 457

DPP v KENNY UNREP HERBERT 13.10.2006 2006/19/3924 2006 IEHC 330

DPP (O'MAHONY) v O'DRISCOLL UNREP SUPREME 1.7.2010 2010 IESC 42

DPP v BREHENY UNREP SUPREME 2.3.1993 1993/2/255

DPP v GRAY UNREP O'HANLON 8.5.1987 1987/2/463

O'HARA v CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY 1997 AC 286 1997 2 WLR 1

PROES v REVENUE COMMISSIONERS 1998 4 IR 174

DPP v MCCREA UNREP SUPREME 9.12.2010 2010 IESC 60

HOBBS v HURLEY UNREP COSTELLO 10.6.80 1980/6/1106

DPP v PENNY 2006 3 IR 553

CRIMINAL LAW

Drink driving

Evidence - Description - Erratic driving observed by Garda - Garda left scene before arrival of arresting Garda - Arresting Garda did not observe driving - Insufficient evidence linking description to accused - Insufficient evidence accused committed or was committing offence of driving under the influence of an intoxicant - Application to dismiss - Request by prosecution for alternative conviction under Road Traffic Acts - Whether arresting Garda reasonable grounds to form requisite opinion for arrest - Whether District Court judge correct in law in dismissing case on basis that arresting Garda could not reasonably have formed opinion required for arrest that accused committed or was committing offence of drunk driving - Whether judge correct in law in holding insufficient evidence to consider conviction under s 50 of the Road Traffic Act 1961 - Threshold for formation of reasonable suspicion - Whether arresting member entitled to have a reasonable cause to suspect based on what he is told - Whether High Court jurisdiction to determine matter given case stated procedure limited to points of law - DPP (Garda O'Mahony) v O'Driscoll [2010] IESC 42 (Unrep, SC, 1/7/2010) applied - DPP v Gray (Unrep, O'Hanlon J, 8/5/1987) followed - DPP v Breheny (Unrep, SC, 2/3/1993), O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, Proes v Revenue Commissioners [1998] 4 IR 174, DPP (Garda Lavelle) v McCrea [2010] IESC 60 (Unrep, SC, 9/12/2010), Hobbs v Hurley (Unrep, Costello J, 10/6/1980) and DPP (Hallinan) v Penny [2006] 3 IR 553 considered - Summary Jurisdiction Act 1857 (c 43), s 2 - Courts (Supplemental Provisions) Act 1961 (No 39), s 51 - Road Traffic Act 1961 (No 24), ss 48, 49(4), 49(6)(a) & 50 - Road Traffic Act 1994 (No 7), s 10 - Road Traffic Act 2006 (No 23), s 18 - Case stated questions addressed (2010/1465SS - Kearns P - 4/2/2011) [2011] IEHC 40

DPP (Garda Grant) v Reddy

Facts The respondent had been observed by a member of An Garda Síochána driving erratically and crashing his car. The garda in question dialled 999 and continued on into work. A garda car thereafter approached the respondent, arrested him and charged him with a drink-driving offence under the Road Acts. Subsequently the respondent was found to be over the legal limit and was prosecuted. It had been the case in the District Court that the judge was not satisfied that the arresting garda could have correctly formed the opinion required under section 49(8) of the Road Traffic Act, 1961 that the accused had committed or was committing a road traffic offence. It had been contended by the defence that the arresting garda had not seen the erratic driving of the respondent. A case was stated for the opinion of the High Court as to whether the District Court judge was correct in dismissing the charge.

Held by Kearns P. in answering the case stated in the negative. A requirement that the arresting Garda observe the defendant to be actually driving a motor vehicle in such a manner as to give rise to reasonable opinion was to add something which the relevant statute simply did not provide. The opinion formed by the garda must be bona fide and could derive from either his or her own observations or from reports received from third parties. The courts must allow the arresting officer an appropriate margin of appreciation and not be seen as permanently poised to strike down the prosecution at every turn by holding members of the Garda Síochána to impossible requirements as though they themselves were adjudicating an issue as to reasonableness in a courtroom setting.

Reporter: R.F.

1 JUDGMENT of Kearns P. delivered the 4th day of February, 2011

2 This is an appeal by way of case stated by District Judge John O'Neill pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961 and the Rules of the District Court arising out of the prosecution of the accused on a charge of driving under the influence of an intoxicant 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. 18 of the Road Traffic Act 2006.

FACTUAL BACKGROUND

3 On 1 ^st October 2009, the accused appeared before the District Court on foot of charge sheet No. 8972403 alleging that on 13 ^th May, 2009 at the N4 Lucan Bypass in Co. Dublin, he drove a mechanically propelled vehicle, registration number 03MN2628 in a public place while there was present in his body a quantity of alcohol such that within three hours or so after driving, the concentration of alcohol in his breath exceeded a concentration of 35 micrograms of alcohol per 100 millilitres of breath contrary to s. 49(4) and (6) (a) of the Road Traffic Act 1961, as amended by s. 18 of the Road Traffic Act 2006. The District Judge acceded to the application of counsel for the accused that all prosecution witnesses be directed to remain outside the court until called to give evidence.

4 The factual matrix which led to the prosecution of the respondent are set out by District Judge O'Neill at paragraph 2 of the case stated. The evidence given by Garda Keogh of her observations was set out as follows:-

5 a "(b) Garda Orlaith Keogh of Store Street Garda Station testified that on 13/06/09 at approximately 5.35am whilst driving to work for 6am, she observed an Audi A4 driving in front of her. She stated that the car was driving in an erratic manner and was weaving between lanes. She observed the car approach road works on the N4. At the junction where the slip road for Lucan joins the N4, the car drove straight across two lanes of traffic and hit the traffic cones on the road. The cones flew up into the air and landed across two lanes of traffic causing Garda Keogh and other road users to brake to avoid them. She testified that the car then crashed into the hard shoulder of the N4 across from the Texaco garage on the city bound lane of the N4. Garda Keogh then called 999. She testified that she informed the emergency services that an Audi A4 had been driving erratically, that there was only one person in the car, and that it had crashed into the hard shoulder across from the Texaco garage on the city bound lane. She further testified that she had no opportunity to identify the driver of the said vehicle.

6 (c) Under cross-examination, Garda Keogh testified that she informed the emergency services of the erratic nature of the driving and the location of that driving. Garda Keogh was specifically asked whether she imparted any other information to the emergency services and she confirmed that she did not. She confirmed that she did not speak with Garda Mark Grant at the time and that she had no further dealings with the vehicle because, having called 999, she left the scene as she did not want to be late for work. She was not present when Garda Grant arrived at the scene."

7 The evidence given by Garda Mark Grant follows at sub-paragraphs (d), (e), (f), (g) and (h) of paragraph 2:-

8 a "(d) Garda Mark Grant testified that on Saturday 13 ^th June 2009 at approximately 5.45am he was the official observer in the Ronanstown Patrol car QC1 with Garda Richard Lynch detailed as the driver. At approximately 5.45am on Saturday 13 ^th June 2009, they received a call from the Garda Control for a vehicle, an Audi A4, registration number 03MN2628, that had been observed by an off duty member; Garda Orlaith Keogh travelling all over the road on the N4 inbound and the vehicle had crashed into the hard shoulder. Garda Grant testified that it was clear that the car had crashed as there was damage to the side of the vehicle and it had eventually to be towed away.

9 (e) Under cross-examination, it was put to Garda Grant that his colleague, Garda Keogh, had testified that the only information she imparted to the emergency services was as to the nature of the driving and the location of that driving. It was further put to Garda Grant that Garda Keogh did not give the registration number of the vehicle in question and did not identify herself to the emergency services. When Garda Grant was asked to explain how the emergency services could have communicated such information to him when that information had not been provided to them, Garda Grant...