DPP v Corrigan

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-HC 386
• Court: High Court
• Docket Number: [1986 No. 296 SS],296 SS/1986
• Date: 01 January 1987

1986 WJSC-HC 386

296 SS/1986

DPP v. CORRIGAN

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

JOHN PATRICK CORRIGAN

DEFENDANT

Citations:

AG V O'BRIEN 1965 IR 142

BURDETT V ABBOTT 14 EAST 163

CONSTITUTION ART 40.5

DPP V CLOSKEY UNREP O'HANLON 06.02.84 1984/4/1155

DPP V GAFFNEY 1986 ILRM 657, 1987 IR 173

DPP V JOYCE 1985 ILRM 206

FOX V CHIEF CONSTABLE OF GWENT 1985 1 AER 230

HALSBURY'S LAWS 4ED V11 PARA 104

LAUNOCK V BROWN 2 B&ALD 593

MCNAMARA V ELECTRICITY SUPPLY BOARD (ESB) 1975 IR 1

MORRIS V BEARDMORE 1980 2 AER 753 1979 3 QBD 290, 1981 AC 446, 1980 3 WLR 283

ROAD TRAFFIC ACT 1972 S8(2)

ROAD TRAFFIC (AMDT) ACT 1978 S10

ROAD TRAFFIC (AMDT) ACT 1978 S12(3)

ROAD TRAFFIC (AMDT) ACT 1978 S13

ROAD TRAFFIC (AMDT) ACT 1978 S49

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(6)

SALMOND & HEUSTON TORTS 18ED P36

SEMAYNE'S CASE 1604 5 CO REP 196

Synopsis:

CONSTITUTION

Personal rights

Dwelling - Forcible entry - Arrest - Trespassing police - Defendant arrested in the driveway of his dwelling immediately after he had driven his car there - Arresting garda had no permission to enter upon defendant's premises - Held that the arrest was not an infringement of the provisions of Article 40.5 of the Constitution - Constitution of Ireland, 1937, Article 40 - ~See~ Criminal Law, arrest - (1986/296 SS - Blayney J. - 18/7/86) - [1986] IR 290 - [1987] ILRM 575

|Director of Public Prosecutions v. Corrigan|

CRIMINAL LAW

Arrest

Location - Legality - Private property - Trespassing police - Defendant arrested in the driveway of his dwellinghouse immediately after he had driven his car there - Arresting gardai without permission to enter upon defendant's premises - Defendant was brought to garda station where he refused to provide a sample of his blood or his urine when requested for same pursuant to s.13(1) of the Act of 1978 - Prima facie offence contrary to s.13(3) of that Act - Power of gardai to request sample was dependent upon arrest of defendant being lawful - District Court dismissed a complaint that defendant had committed an offence contrary to s.13(3) - Case stated by District Justice - Held that the arrest of the defendant was a lawful arrest, notwithstanding the fact that the arresting garda was a trespasser at the time of the arrest, and was not an infringement of Article 40.5 of the Constitution - Held, accordingly, that evidence of the defendant's refusal contrary to the provisions of s.13(1) was admissible at his trial on a charge of an offence contrary to s.13(3) - Held, therefore, that the dismissal of the complaint of an offence contrary to s.13(3) was not in accordance with law - Road Traffic Act, 1961, s.49(6) - Road Traffic (Amendment) Act, 1978, s.13 - (1986/296 SS - Blayney J. - 18/7/86) - [1986] IR 290; [1987] ILRM 575

|Director of Public Prosecutions v. Corrigan|

EVIDENCE

Admissibility

Procurement - Unlawful means - Trespass by police - Arrest of defendant in driveway of dwellinghouse immediately after he had driven his car there - Refusal of defendant to provide sample of his blood or urine in garda station when requested to do so - Prima facie offence contrary to s.13(3) of Act of 1978 - Power to request sample dependent upon lawfulness of arrest - Held that the arrest was lawful despite the trespass of the arresting garda - Held that evidence of the defendant's refusal was admissible at his trial for an offence contrary to s.13(3) of the Act - Road Traffic Act, 1961, s.49(6) - Road Traffic (Amendment) Act, 1978, s.13 - (1986/296 SS - Blayney J. - 18/7/86) - [1986] IR 290; [1987] ILRM 575

|Director of Public Prosecutions v. Corrigan|

ROAD TRAFFIC

Alcohol test

Blood or urine - Refusal to provide sample - Proof - Power to request sample dependent upon lawfulness of arrest of defendant - Arrest of defendant in the driveway of his dwelling immediately after he had driven his car there - Arresting garda did not have permission or authority to enter upon defendant's premises - Held that the arrest was lawful despite the trespass of the arresting garda - Road Traffic Act, 1961, s.49(6) - Road Traffic (Amendment) Act, 1978, s.13 - (1986/296 SS - Blayney J. - 18/7/86) - [1986] IR 290; [1987] ILRM 575

|Director of Public Prosecutions v. Corrigan|

GARDA SIOCHANA

Powers

Private property - Entry - Authority - Entry without permission or authority - Trespass by garda - Arrest of defendant in driveway of dwellinghouse immediately after he had driven his car there - Refusal of defendant to provide sample of blood or urine in garda station when requested to do so - Power of garda to request sample was dependent upon lawfulness of arrest - Held that the arrest was lawful despite the trespass of the arresting garda - Road Traffic Act, 1961, s.49(6) - Road Traffic (Amendment) Act, 1978, s.13 - (1986/296 SS - Blayney J. - 18/7/86) - [1986] IR 290; [1987] ILRM 575

|Director of Public Prosecutions v. Corrigan|

Appeal by Way of Case Stated

1 Judgment of Mr. Justice Blayney delivered the 18th day of July 1986 .

2 This is a Case Stated by District Justice Sean Delap in which the opinion of the High Court is sought as to whether he was right in law in dismissing a charge under Section 13 of the Road Traffic (Amendment) Act 1978in the circumstances set out in the case. The relevant facts set out in the Case Stated are as follows. At about midnight on Monday the 18th of March 1985 two members of an Garda Síochána stationed at Skerries, Garda John Clince and Garda P.G. McHugh, were travelling in a Skerries patrol car in Rush, going in the direction of Skerries when they saw a Hillman Hunter Estate car parked with its lights on at the side of the road. The patrol car stopped beside the car and Guard Clince got out of the patrol car to speak to the driver. The other car immediately drove off at speed in the direction of Skerries and the patrol car followed in pursuit. In the course of the pursuit the car on three or four occassions went two to three feet over the white line. Finally it turned left without giving any indication; crossed on to the incorrect side of the roadway and then turned right into St. Catherine's Way. It then turned left into No. 31, St. Catherine's Way, Rush, which Garda McHugh knew to be the home of the Defendant, John Patrick Corrigan.

3 The Defendant got out of the car and both Gardaí approached him and Garda McHugh asked him if he could account for the manner of his driving. Garda Clince detected a strong smell of intoxicating liquor from the Defendant's breath and the Defendant appeared to be somewhat unsteady. Guard Clince also formed the opinion that the Defendant had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle. Garda Clince thereupon arrested the Defendant under Section 49(6) of the Road Traffic Act 1961for an alleged offence under Section 49( 2) or (3) of the Road Traffic Act 1961as inserted by Section 10 of the Road Traffic (Amendment) Act 1978.

4 The Defendant, when arrested, was unco-operative and replied to Garda Clince by stating "you are not arresting me". He resisted mildly during the five yard walk to the patrol car and was driven to Balbriggan Garda Station. At the Garda Station the Defendant refused on three occasions to permit a Doctor to take a specimen of blood and be also refused to supply a specimen of his urine. In cross-examination both Garda McHugh and Garda Clince agreed that they knew that 31 St. Catherine's Way was Mr. Corrigan's house and they said that they did not seek or receive any permission before entering his driveway.

5 On these facts the learned District Justice found as a fact that Garda Clince arrested Mr. Corrigan in his own driveway, and this was not a public place. The charge against the Defendant under Section 13 of the Road Traffic (Amendment) Act 1978was dismissed as the learned District Justice was of the opinion that the arrest of the Defendant on the 19th of March 1985 was bad because it had not been effected in a public place. In the Case Stated the opinion of the High Court is sought as to whether the learned District Justice was right in law in dismissing the charge under Section 13 of the Road Traffic (Amendment) Act 1978in the circumstances outlined.

6 Section 13 of the Road Traffic (Amendment) Act 1978provides as follows:

"(1) Where a person arrested under section 49 (6) of the Principal Act or section 12(3) has been brought to a Garda station, a member of the Garda Siochána may at his discretion do either or both of the following-"

(a) require the person to provide, by exhaling into an apparatus for indicating the concentration of alcohol in breath or blood, a specimen of his breath,

(b) require the person either to permit a designated registered medical practitioner to take from the person a specimen of his blood or, at the option of the person, to provide for the designated registered medical practitioner a specimen of the person's urine."

7 The section gives a member of the Garda Síochána a discretion, in the circumstances outlined at the opening of the section, to require a person to provide a specimen of his breath, of his blood or of his urine. The circumstances are that the person should have been arrested under Section 49 (6) of the Road Traffic Act 1961and should have been brought to a Garda Station. It is contended in the present case that these circumstances did not exist in that the Defendant was not lawfully arrested under Section 49(6) of the 1961 Act. It is submitted on his behalf that at the time of his arrest the Gardaí who arrested him were trespassing and accordingly his arrest was unlawful.

8 In my opinion there can be no doubt that the reference in the section to "a person arrested" must be to a person who has been lawfully arrested. Accordingly, if in the present case the position...