DPP (Hallinan) v Donal Milmo Penny

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date27 July 2006
Neutral Citation[2006] IEHC 230
CourtHigh Court
Docket Number[2006 No. 73 SS]
Date27 July 2006
DPP (HALLINAN) v PENNY
in the MATTER of section 52 of the courts (SUPPLEMENTAL provisions)
act 1961

between

Director of Public Prosecutions (at the suit of garda Garry Hallinan)
Prosecutor

and

Donal Milmo Penny
Defendant

[2006] IEHC 230

[73 S.S/2006]

The high court

CRIMINAL LAW:

Evidence

Validity of opinion of arresting garda - Whether direction by gardaí to commit illegal act affects validity of evidence or prosecution - Garda forming opinion that accused intoxicated to such extent that incapable of driving - Garda subsequently directing defendant to drive car to side of road - Whether amounting to direction to commit illegal act - Whether vitiating arrest - Held that arrest lawful (2006/73SS - Dunne J -27/7/2006) [2006] IEHC 230, [2006] 3 IR 553

DPP (Hallinan) v Penny

The accused was stopped by a member of the gardaí and informed that he had formed the opinion that the accused had committed an offence contrary to s. 49 of the Road Traffic Act 1961, as amended. The arresting garda then directed the accused to drive his car to the side of the road and stop whence he was arrested. At the conclusion of the evidence in the District Court, the accused applied for a direction that he be acquitted on the grounds that his arrest had been unlawful by reason of the fact that the arresting garda, having purportedly formed the opinion that the accused had committed an offence contrary to s. 49 of the Act of 1961, as amended, then required him to drive his car in circumstances which deprived him of his liberty and that the requirement was one to commit a criminal offence. It was also contended that the illegality associated with the arrest tainted the evidence obtained thereafter. The District Judge refused the application but agreed to state a case to the High Court as to (a) whether the arrest of the accused was lawful in circumstances where the arresting garda, having stated that he had formed the opinion that the accused had committed an offence contrary to s. 49 of the Act of 1961, then required the accused to continue driving; and (b) in the alternative, whether the requirement that the accused continue driving sufficient to vitiate the garda's opinion that the defendant had committed an offence contrary to s. 49.

Held by Ms Justice Dunne in answering the first question posed in the affirmative and the second in the negative.

1. that the fact that a garda has requested one to do an illegal act did not, of itself, amount to authority to an individual to do that illegal act.

2. That, as there was no causative link between the act complained of and the obtaining of evidence, the defendant had not been prejudiced thereby.

3. That, in the circumstances where there was a finding of fact that the garda had formed the necessary opinion, it could not be vitiated by subsequent events.

Reporter: P.C.

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S17

DPP v SPRATT 1995 2 ILRM 117

LYNCH v AG 2004 1ILRM 129

ROAD TRAFFIC ACT 1961 S109(1)

STRATFORD v FAGAN 1994 3 IR 265 1994 2 ILRM 349 1994/13/4063

ROAD TRAFFIC ACT 1961 S110

NATIONAL IRISH BANK, RE 1999 3 IR 145

JOHNSON v PHILLIPS 1976 RTR 170

HOBBS v HURLEY UNREP COSTELLO 10.6.80 1980/6/1106

DPP v GILMORE 1981 ILRM 102

DPP v LYNCH 1991 1 IR 43

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S2

ROAD TRAFFIC ACT 1961 S3

ROAD TRAFFIC ACT 1961 S4

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

1

judgment of Ms. Justice Dunne delivered on the 27th day of July 2006 .

2

This is a consultative case stated pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961, by District Judge Catherine Murphy arising out of a sitting of the Dublin Metropolitan District Court on 30th June, 2005. On that date the defendant appeared before the learned District Judge to answer a complaint in which he was charged with having driven a mechanically propelled vehicle in a public place on 2nd November, 2003, at Templeogue Road, Dublin 6W, while there was present in his body a quantity of alcohol such as that within three hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 35mgm of alcohol per 100ml of breath contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961as inserted by s. 10 of the Road Traffic Act, 1994and as amended by s. 23 of the Road Traffic Act, 2002.

3

At the hearing, the prosecutor was represented by Garrett Henry of the Chief Prosecutions Solicitors office and the defendant was represented by James B. Dwyer, B.L.

4

Two witnesses gave evidence on behalf of the prosecution namely Garda Garry Hallinan and Garda Pat Lally.

5

The relevant facts proved or admitted were as follows:

6

On November 2nd 2003, Garda Hallinan was on duty at a checkpoint on the Templeogue Road at approximately 8.30 p.m. A vehicle was stopped at the checkpoint and Garda Hallinan spoke to the driver, the defendant herein. He noted that there was a smell of alcohol from the driver and that his speech was slurred. He asked the defendant had he drunk alcohol and the defendant replied that he had and that he had been at a rugby match earlier and was driving towards Templeogue. Garda Hallinan formed the opinion that the defendant was intoxicated to such an extent as to render him incapable of operating a mechanically propelled vehicle in a public place. He then informed the defendant that he was arresting him under the provisions of the Road Traffic Act, 1961as amended and explained this to the defendant. The defendant was brought to Terenure Garda Station and subsequently a breath test was obtained from him.

7

Under cross examination, Garda Hallinan confirmed that he stopped the vehicle driven by the defendant, that he observed the general demeanour of the defendant and particularly the smell of the defendant's breath and the fact that his speech was slurred. He cautioned the defendant and asked the defendant if he had been drinking. The defendant told him that he had a few pints after a rugby match in Donnybrook and was going to a friend's house in Templeogue. Garda Hallinan stated that he then asked the defendant to pull over to the side of the road having formed the opinion that he had committed an offence under s. 49 of the Road Traffic Act, 1961. He stated that the checkpoint was in the middle of the road. He watched the defendant drive off the main road into Rathdown Park. He did not order the defendant to drive into Rathdown Park but merely to pull over. He then effected the arrest of the defendant.

8

At the conclusion of the prosecution evidence counsel for the defendant sought a direction on a number of grounds which were rejected save for the one which gave rise to this consultative case stated. It was submitted by Mr. Dwyer on behalf of the defendant that the arrest of the defendant was unlawful by reason of the fact that Garda Hallinan having purportedly formed the opinion that the defendant had committed an offence under s. 49 of the Road Traffic Act, 1961, then required him to drive his car in circumstances which deprived him of his liberty and furthermore that requirement was in effect a requirement to commit a criminal offence. He then submitted that the illegality associated with the defendant's arrest tainted the evidence obtained by the prosecution thereafter in particular the s. 17 statement. Mr. Dwyer conceded that he was unaware of any case law that supported his submission.

9

By way of reply Mr. Henry for the prosecution likewise was unable to refer to any case law on the issue. He submitted that in the context of a road traffic checkpoint in the middle of a busy public road, the Garda was entitled to ask the defendant to pull in before completing the arrest as a matter of public safety.

10

The learned District Judge was of the view that she was not going to accept the contentions made on behalf of the defendant she was nonetheless prepared to state a case on a consultative basis having regard to the novelty of the point raised. Accordingly the opinion of the High Court has been sought on the following questions:

11

2 (a) Was the arrest of the defendant lawful in circumstances where Garda Hallinan, having stated that he formed the opinion the defendant had committed an offence contrary to s. 49 of the Road Traffic Act, 1961, as amended, then required the defendant to continue driving albeit a short distance?

12

3 (b) In the alternative, was the requirement that the defendant continue driving sufficient to vitiate Garda Hallinan's opinion that the defendant had committed an offence under s. 49 of the said Act?

13

Submissions were made on behalf of the prosecutor by Paul Anthony McDermott B.L. In the first instance, he contended that as a matter of common sense a member of the Gardaí manning a checkpoint in the middle of a busy road is entitled to request a driver to pull over before the arrest process is completed. He noted that the driver did so voluntarily. He pointed out that it had not been suggested that any of the ingredients which go to make up a valid arrest had been omitted by the Guard. Accordingly he contended that the ingredients of a valid arrest were present in that the arresting officer formed the necessary opinion and the defendant was informed of the reason for the arrest.

14

The main point made by counsel for the prosecutor was that even if the request made to the driver of the vehicle to pull over to the side of the road amounted to a potential wrong or indeed a potential offence, he stated that it was unclear how that potential illegality could affect the validity of the arrest. He pointed out that there was no causal connection between any...

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