DPP v O Connor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Quirke
• Judgment Date: 14 December 2005
• Neutral Citation: [2005] IEHC 422
• Docket Number: [No. 704 SS/2005]
• Date: 14 December 2005

DPP v O'CONNOR

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

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPELLANT

AND

TIM O'CONNOR

ACCUSED/RESPONDENT

[2005] IEHC 422

[No. 704 SS/2005]

THE HIGH COURT

CRIMINAL LAW

Road traffic offences

Detention - Detention for observation - Delay in seeking breath specimen - Onus on prosecution to show delay reasonable - Whether legality of detention challenged - DPP v Finn [2003] 1 IR 372 and DPP v McNiece [2003] 2 IR 614 followed - Road Traffic Act 1951 (No 24), s 49 - Case stated answered that dismissal of charges incorrect in law

Facts: This case stated sought the opinion of the High Court as to whether the District Judge was correct in law in dismissing a charge against the respondent alleging the commission of an offence contrary to s. 49 of the Road Traffic Act 1951. The charge was dismissed on the grounds that the respondent was in unlawful detention for a seven minute period during the investigation of the offence alleged.

Held by Quirke J. in answering the questions posed in the negative that the District Judge was not correct in law in determining that the respondent was in unlawful detention during the investigation of the offence with which he had been charged.

Reporter: R.W.

SUMMARY JURISDICTION ACT 1857

COURT (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1951 S49(4)

ROAD TRAFFIC ACT 1961 S(6)(a)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1994 S13(1)(a)

ROAD TRAFFIC ACT 1994 S17

DPP v FINN 2003 1 IR 372 2003 2 ILRM 47

DPP v MCNIECE 2003 2 IR 614 2003

DPP v FOX 1997 1 ILRM 440

Mr. Justice Quirke

1 This is a case stated by Judge James Paul McDonnell, a judge of the District Court, pursuant to s. 2 of the Summary Jurisdiction Act, 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act1961.

2 It has been made on the application of the prosecutor/appellant (hereafter the DPP) who is dissatisfied with the determination of the learned District Judge as being erroneous in point of law. The case stated seeks the opinion of the High Court as to whether the District Judge was correct in law in dismissing a charge against the respondent alleging the commission of an offence contrary to the provisions of s. 49 of the Road Traffic Act 1951. The charge was dismissed on the grounds that the respondent was in unlawful detention for a seven minute period during the investigation of the offence alleged.

RELEVANT FACTS

3 1. At sittings of Tallaght District Court on 22nd January, 2004, and 12th February, 2004, the respondent appeared before the learned District Judge charged with the commission of an offence pursuant to s. 49( 4) and (6)(a) of the Road Traffic Act, 1961 as inserted by s. 10 of the Road Traffic Act, 1994.

4 The offence alleged was that on the 29th September, 2001, at the Tallaght bypass, Tallaght, Dublin 24, he drove a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath. The respondent denied committing the offence.

5 2. Garda Brian Dineen, testifying on behalf of the DPP, in evidence, said that having formed the opinion that the respondent had driven a vehicle at a time when he had consumed an intoxicant he conveyed the respondent to Terenure Garda Station arriving at 12.55 am. On arrival, Garda Dineen introduced the respondent to Garda Dooley who was the member in charge.

6 3. At 1.07 am Garda Dineen and Garda Dooley took the respondent to the doctor's room where an Intoximeter machine was located.

7 It is acknowledged that the provisions of s. 13(1)(a) of the Road Traffic Act,1994, were properly and lawfully applied by Garda Dooley and that the respondent provided two specimens of his breath.

8 4. The intoxilyzer which records the concentration of alcohol present in human breath, printed statements pursuant to s. 17 of the Act of 1994 which indicated that there was a concentration of 127 microgrammes of alcohol per 100 millilitres within the breath sample.

9 5. The Case Stated by the learned District Judge provides (at para. 3(e)) that:

"A 20 minutes observation period prior to the giving of the breath specimen's is justified in order to ensure that an arrested person does not consume anything by mouth, as such consumption might make the specimen unreliable."

10 It is unclear whether evidence to that effect was adduced in the proceedings but presumably the learned District Judge was satisfied by way of evidence that such was the case and certainly that fact has been established in evidence in many other similar cases.

11 The learned District Judge held that the respondent had been detained within Terenure Garda Station for a period of 27 minutes, and, accordingly, had been in unlawful detention for a period of seven minutes more than was warranted for his satisfactory observation. Accordingly he decided that the respondent had been in unlawful detention during the investigation of the offence alleged and he dismissed the charge preferred against the respondent.

12 He has sought the opinion of this court as to whether he was correct in law:

13 (1) in determining that the respondent was in unlawful detention for the additional period of seven minutes and

14 (2) in dismissing the charge.

DECISION

15 On the facts as outlined in the case stated I am satisfied that in this case the learned District Judge was not correct in law in determining that the respondent was in...