DPP v Behan

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 03 March 2003
• Neutral Citation: 2003 WJSC-HC 2930
• Docket Number: [No. 1080 S.S./2002]
• Court: High Court
• Date: 03 March 2003

2003 WJSC-HC 2930

THE HIGH COURT

Aindrias Ó Caoimh

[No. 1080 S.S./2002]

DPP v. BEHAN

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISONS) ACT,1961 to 1991

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

-and-

PATRICIA BEHAN

Accused

Citations:

COURTS (SUPPLEMENTAL) PROVISIONS ACT 1961 S52

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S13

PIERSE ROAD TRAFFIC LAW 2ED 1995 396

SPALDING V PAINE 1985 CLR 673

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 REG 21(1)

ROAD TRAFFIC ACT 1994 S15

ROAD TRAFFIC ACT 1994 S23(1)

MCAULEY & MCCUTCHEON CRIMINAL LIABILITY 2000 316

BREND V WOOD 1946 62 TLR 462

DUNCAN V GLEESON 1969 IR 116

HARDING V PRICE 1948 1 KB 695

ROAD TRAFFIC ACT 1994 S23(12)

DPP V MCGARRIGLE 1996 1 ILRM 271

SHANNON REGIONAL FISHERIES BOARD V CAVAN CO COUNCIL 1996 3 IR 267

FISHERIES (CONSOLIDATION) ACT 1959 S171(B)

MIN POST V CAIT BEAN UI CHADHAIN 1980–1998 IR SP REP 91

MAGUIRE V SHANNON REGIONAL FISHERIES BOARD 1994 3 IR 580

DPP V MANGAN 2001 2 IR 373

ROAD TRAFFIC ACT 1972 (UK)

ROAD TRAFFIC ACT 1994 S23

Synopsis:

CRIMINAL LAW

Delay

Road traffic offence - Case stated - Intoxilyser - Whether failure to provide specimen of breath strict liability offence - Failure to provide specimen of breath - Whether limited defence provided by statute only defence available to accused - Whether necessity for accused to understand consequences of failure to provide breath specimen - Road Traffic Act, 1994, sections 13(1) and 23(1) (2002/1080SS - O Caoimh J - 3/3/2003)

DPP v Behan

The defendant was arrested under section 49 of the Road Traffic Act, 1961 and brought to Portlaoise Garda station where she attempted but failed to provide the requisite two breath samples into an intoxilyser. The gardaí gave evidence that the accused had attempted suicide and was in a state of extreme distress at the time. The prosecution came before District Court Judge Martin who stated a case to the High Court at the request of the defendant on the following matters: (a) whether section 23(1) of the Road Traffic Act, 1994 provides the only defence available to a person in a prosecution under section 13 for failure to comply with a requirement to provide two specimens of her breath, (b) whether section 13(1) of the Act of 1994 contemplates the involvement of a mental process to the extent that the court should be satisfied that a person is capable of understanding the requirement being made and the consequences of failing to comply with that requirement, and (c) whether emotional distress and suicidal ideation render a person incapable of understanding the requirement made under section 13 of the Act of 1994 or the consequence of failing to comply with that requirement.

Held by ó Caoimh J., in answering the case stated and in ordering that the matter be remitted to the District Court that the offence created by section 13 of the Act of 1994 is a strict liability offence where section 23(1) provides the only defence available to it. There was no obligation on the prosecution to show that an accused was capable of understanding the consequences of failing to comply with the requirement to provide breath specimens in section 13(1) of the Act of 1994. The third question posed was a question of fact which would have to be addressed by the court of trial in the first instance on the basis of evidence before it.

Mr. Justice Aindrias Ó Caoimh

1 This matter comes before this Court by means of a consultative case stated by Judge Mary Martin, a judge of the District Court assigned to District No. 15 sitting at the District Court at Portlaoise, County Laois, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act,1961for the determination of this Court.

2 The case stated recites that this case has been stated pursuant to an application made to Judge Martin in that behalf by Michael Lanigan, Solicitor for the accused.

3 The facts have been set forth in the case stated herein as follows:-

4 1. At a sitting of the District Court held at Portlaoise on the 7^th September, 2001, there came before Judge Martin a summons issued on behalf of the prosecutor (hereinafter referred to as “the Director”) against the accused alleging that the accused on the 13^th December, 2000 at the Garda Station Portlaoise, County Laois within the District Court area of Portlaoise being a person arrested under s. 49(8) of the Road Traffic Act,1961, having been required at Portlaoise Garda Station by Sergeant M. Hannigan a member of An Garda Siochana, pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, to provide two specimens of her breath, did fail to comply forthwith with the said requirement in a manner indicated by the said member of An Garda Siochana contrary to s. 13(2) of the Road Traffic Act,1994.

5 2. At the hearing of the said complaint evidence was given by a number of members of An Garda Siochana called by Inspector John Dunleavy on behalf of the Director who were cross-examined by Mr. Lanigan, Solicitor for the accused. The first witness called by the State was Garda Karen Ryan of Portlaoise Garda Station. She confirmed to the Court that on Wednesday the 13^th December, 2000, at 11.47 a.m. she stopped a motorcar registration 00 D 59581, a red Honda Civic on the Dublin Road, Portlaoise.

6 3. She had observed the car being driven in an erratic manner. She asked the driver of the vehicle to pull up to the side of the road which she observed the driver doing with great difficulty. She spoke to the driver who identified herself as Patricia Behan of Hillside House, Rochestown, Cork City. Garda Ryan gave evidence that Mrs. Behan spoke in a very slow and slurred manner and that there was a smell of intoxicating liquor off her. She assembled the roadside test apparatus and made a requirement under s. 12 of the Road Traffic Act. Mrs. Behan inhaled into the apparatus and it gave a negative test turning the test tube green. Garda Ryan formed the opinion that Mrs. Patricia Behan had committed an offence under s. 49(2), ( 3) or (4) of the Road Traffic Act,1961to 1964. She informed Mrs. Behan that she was arresting her under s. 49(8) of the Road Traffic Act,1961to 1994for drunken driving.

7 4. She then brought Mrs. Behan to Portlaoise Garda Station arriving there at 11.59 a.m. While in the public office Mrs. Behan asked Garda Ryan for a pen and an envelope. At 12.21 p.m. Garda Downey, Sergeant Boyle and Garda Ryan escorted Mrs. Behan to the doctors' room. On entering the doctors' room Mrs. Behan handed a letter to Garda Ryan which she asked to be given to the Sergeant in charge after the test. Garda Downey was setting up the breath machine and Garda Ryan then observed Mrs. Behan put her hand to her mouth. Garda Ryan said that she saw what looked like tablets in Mrs. Behan's hand. She used reasonable force to open the defendant's hand and saw she had approximately ten tablets in her hand. She later became aware that these were Xanax tablets.

8 5. She described Mrs. Behan at this stage as being very unstable and stressed out. She brought her at 12.29 p.m. to the parade room. She told her to sit down. She decided that she should call a doctor for Mrs. Behan. At 12.30 p.m. she called Dr. Honan a local doctor to come to the station to examine Mrs. Behan. Dr. Honan informed her that she was unable to come to the station. She attempted to contact four other doctors but none were available to attend the station. She observed Mrs. Behan from 12.29 p.m. until 12.43 p.m. and she noted that Mrs. Behan did not consume or smoke anything within those times. She brought Mrs. Behan back to the doctors' room at 12.43 p.m. She again was accompanied by Sergeant Hannigan and Garda Downey. At 1.22 p.m. Mrs. Behan was returned to the public office. She had failed to provide a breath test. Mrs. Behan continued to be upset. At 1.25 p.m. she was placed in the parade room. Garda Ryan then made contact with the daughter of the defendant who advised her that her mother was suffering from depression and was unstable. Garda Ryan contacted Dr. Hayes, Mrs. Behan's own medical practitioner, who advised that Mrs. Behan should be seen by a medical practitioner immediately.

9 6. Sergeant Phelan and Garda Drumm then brought Mrs. Behan to St. Fintan's Psychiatric Hospital at 4.36 p.m. Mrs. Behan was returned to the garda station at 6.10 p.m. where she was collected by her son at 7.35 p.m.

10 7. Garda Ryan was then cross-examined by Mr. Michael Lanigan Solicitor for the accused. He asked Garda Ryan whether Mrs. Behan was upset after she had been arrested. Garda Ryan confirmed that Mrs. Behan was upset but that in itself was not unusual as persons in her experience were upset by the fact of being arrested. She was asked whether Mrs. Behan then subsequently became more upset than that which would have normally been seen by her as an experienced Garda. She confirmed that at the station Mrs. Behan had become very upset but then appeared to her to be reasonably calm when she asked for the pen and paper. Garda Ryan was asked to confirm that the contents of what she wrote to the sergeant in charge was in fact a suicide note. Garda Ryan confirmed that this was the case. Garda Ryan was asked to produce that note to the judge. Garda Ryan produced that note to Judge Martin. Garda Ryan was asked as to whether she believed that the attempt by Mrs. Behan to ingest tablets was a real attempt at suicide. Garda Ryan believed that Mrs. Behan was attempting at that point to take an overdose of tablets. Garda Ryan was asked to confirm that at no stage did she believe that Mrs. Behan was trying to manipulate a situation. Garda Ryan confirmed that she believed that at...