DPP v Byrne

• Jurisdiction: Ireland
• Judge: Murray, J.
• Judgment Date: 06 December 2001
• Neutral Citation: [2001] IESC 97
• Docket Number: [S.C. No. 226 of 2000]
• Court: Supreme Court
• Date: 06 December 2001

[2001] IESC 97

THE SUPREME COURT

Keane, C.J.

Murray, J.

Fennelly, J.

Record No: 226/00

DPP v. BYRNE

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 AND IN THE MATTER OF A CASE STATED IN RELATION TO A PROSECUTION ENTITLED

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

-AND-

EDWARD BYRNE

Defendant

Citations:

COURT OF JUSTICE ACT 1947 S16

ROAD TRAFFIC ACT 1961 S50(3)

ROAD TRAFFIC ACT 1961 S6(a)

ROAD TRAFFIC ACT 1994 S11

ROAD TRAFFIC ACT 1961 S50(10)

ROAD TRAFFIC ACT 1961S13(1)(b)

ROAD TRAFFIC ACT 1994 S18

ROAD TRAFFIC ACT 1961 S50

DPP V WATKINS 1989 RTR 324

ROAD TRAFFIC ACT 1961 S50(8)

ROAD TRAFFIC ACT 1994 S11

ROAD TRAFFIC ACT 1961 S50(2)

LICENCING ACT 1872

HALSBURYS LAWS OF ENGLAND 4ED 17 PARA 6

ROAD TRAFFIC ACT 1961 S50(4)

ROAD TRAFFIC ACT 1961 S50(4)(a)

Synopsis:

- [2002] 2 IR 397 - [2002] 2 ILRM 68

The defendant had been found asleep in the driver's seat of a motor vehicle by a member of An Garda Síochána. The defendant's keys were in the ignition and the defendant was awakened by a garda and arrested under section 50 of the Road Traffic Acts 1961-1994 on suspicion of being drunk while in charge of a car. The sample subsequently tendered by the defendant was in excess of legal level of alcohol permissible. The defendant was convicted in the District Court. On appeal to the Circuit Court it was submitted on behalf of the defendant that as he was deeply asleep he could not be said to be "in charge of a vehicle". Furthermore it was said that being asleep he could not be said to have had an intention to drive the vehicle. On behalf of the DPP it was submitted that the defendant had been found with the keys in the ignition turned to the ready position and that he had remained in charge of the vehicle. The Circuit Court judge stated a case for the opinion of the Supreme Court as to whether the defendant could be said to be in charge of the vehicle and secondly whether the intentions of the defendant before he went to sleep could be considered. In the Supreme Court counsel for the DPP submitted that the defendant had obviously entered the car earlier and, on his own admission had involuntarily fallen asleep. The defendant had remained in charge of the car from the time he got into the car and that he remained in charge of the car up and including the time when the garda member arrived and woke him up. The fact that he had fallen asleep in the meantime did not alter the fact that he was a person in charge of the motor car within the meaning of Section 50 of the Act, as amended. On behalf of the defendant it was submitted that the presumption that the defendant intended to drive was defeated by the fact that the defendant was asleep. In addition it was contended that the relevant offence referred to a period of three hours within which an accused had been charge of a vehicle. It was submitted that in the circumstances no particular point of time could be established at which the defendant could be said to have been in charge of the vehicle.

Held by the Supreme Court (Murray J delivering judgment, Keane CJ and Fennelly J agreeing) in answering the case stated. If the court of trial was satisfied beyond reasonable doubt that the defendant was in charge with intent to drive at some point during the period from when the garda member observed the defendant in the car and arrested him then it must convict him. There was no statutory definition of "in charge" of a vehicle and the term "in charge" must be applied in a common sense way. Where a person was found alone in a car occupying the driver's seat, with the keys of the car in the ignition prima facie he could be considered to be in charge of the motor car. On the facts set out in the case stated the Circuit Court judge was entitled to hold that the defendant was in charge of the motor car when the garda arrived on the scene. As the learned judge implicitly acknowledged in the case stated whether there was an "intent to drive" on the part of a defendant who was in charge of a motor vehicle was something which had to be determined having regard to the particular facts of the case. Certain inferences could be drawn as to the defendant's intentions before he fell asleep which was entirely a matter for the judge, and the judge was entitled to consider these. The matters which occurred before the defendant fell asleep were part of the res gestae. Items of evidence were said to be part of the res gestae owing to the nature and strength of their connection with the matters in issue and as such were admissible. A presumption of intention to drive a vehicle as set out under section 50 (8) of the Road Traffic Act, only arose where the Court was satisfied that the defendant was in charge of the vehicle. If the trial judge was satisfied that the defendant was in fact in charge of the vehicle, the presumption was raised and it fell to the defendant to raise a reasonable doubt in the mind of the trial judge. Both questions posed by the learned judge would be answered in the affirmative.

1 6th day of December, 2001 byMurray, J.

Murray, J.

2 The issues in this case arise out of a Case Stated by Judge Michael White of the Circuit Court pursuant to Section 16 of the Courts of Justice Act, 1947. The Case Stated itself arises out of proceedings against the above named Defendant in which the offence alleged is of being in charge of a motor vehicle with intent to drive when he had in his body a quantity of alcohol in excess of that stipulated by law, contrary to Section 50(3) of the Road Traffic Act 1961as amended. He had been convicted of the offence in the District Court and the case is now before the Circuit Court on appeal by way of rehearing.

3 The facts and circumstances of the case are set out in the case stated as are the specific questions of law posited by the learned Circuit Court Judge for determination by the Supreme Court. For the sake of convenience I will quote the relevant parts of the case stated:-

"1. At a sitting of the Circuit Court held at The Fourt Court, Dublin 7 the Defendant appeared before me to answer the complaint of the Director of Public Prosecutions at the suit of Garda Kinneen in the summons served on the Defendant that the said Edward Byrne on the 13th day of February 1988 at Navan Road, Ashtown, Dublin 15, in said district, were in charge of a mechanically propelled vehicle, registered number 90 LS 2030, in a public place with intent to drive the said vehicle (but not driving or attempting to drive it) when in your body there was present a quantity of alcohol such that, within three hours of having been so in charge of the vehicle, the concentration of alcohol in your urine exceeded a concentration of 107 milligrammes of alcohol per 100 millilitres of urine."

4 Contrary to Section 50(3) and 6(a) of the Road Traffic Act 1961, as inserted by Section 11 of the Road Traffic Act 1994.

5 The said Defendant had been convicted of the said offence by a Judge of the District Court and was sentenced accordingly. The case came before me by way of Appeal against the Order of the District Court aforesaid:-

6 2. The facts proved or admitted were as follows:-

7 (a) On the 13th of February 1998, Garda Sean Kinneen, a member of An Gardia Siochana stationed at Cabra, was on duty in the official Cabra patrol car. At approximately 1.20 a.m. he observed a blue Peugeot 405, registration number 90 LS 2030 parked on the hard shoulder of the Navan Road, Ashtown, Dublin 15. The lights were on in this car and as he pulled along side it he could see the Defendant asleep in the driver's sent.

8 (b) Garda Kineen got out of the patrol and knocked on the window of the Peugeot, but could get no response. Then opened the car door and observed the keys in the ignition which were turned "two clicks" to ready. Garda Kinneen shook the Defendant and called "wake up" to awaken him and did in fact then waken him.

9 (c) Having awoken the Defendant from his sleep, Garda Kinneen noted the Defendant's eyes were bloodshot and bleary and when the Defendant spoke, his breath smelt of intoxicating liquor. Garda Kinneen asked the Defendant to step out of the car, when he did so he was very unsteady on his feet.

10 (d) At this stage Garda Kinneen cautioned the Defendant as follows:

"You are not obliged to say anything unless you wish to do so, but anything you say will be taken down in wrting and may be given in evidence."

11 Garda Kinneen then asked the Defendant if he had much to drink to which he replied "a few".

12 (e) Garda Kinneen told the Defendant that he had formed the option that the Defendant had consumed an intoxicant to such an extent as to have him rendered incapable of having proper control of a mechanically propelled vehicle in a public place, and was subsequently arrested under Section 50(10) of the Road Traffic Act 1961/ 947as amended. Garda Kinneen then explained to the Defendant that he was arresting him for being drunk in charge of a car. The time of the arrest was 1.25am.

13 (f) Garda Kinneen then conveyed the Defendant to Cabra Garda Station. Upon arrival at the station he introduced the Defendant to Garda Yvonne Burke, member in charge of the station. He observed the custody record being filled out and a Form C. 72 handed to the Defendant and then explained to him.

14 (g) Garda Kinneen then informed the Defendant that a designated doctor would be called on behalf of the Gardaí and that he could have his own doctor present at his own expense. At 1.40 a.m. Dr. Maloney was called and he arrived at 2.40 a.m. At 2.42 am. Garda Kinneen introduced the Defendant to Dr. Maloney as a designated doctor.

15 (h) Garda Kinneen informed the Defendant that he was requiring him under Section 13 (1) (b) of the Road Traffic Act 1961/ 947to permit Dr. Maloney to take from him a sample of his blood or at his option provide Dr. Maloney...