DPP v Garret Byrne

JurisdictionIreland
JudgeMr Justice Hedigan
Judgment Date31 July 2014
Neutral Citation[2014] IEHC 394
CourtHigh Court
Date31 July 2014

[2014] IEHC 394

THE HIGH COURT

[No. 2140 SS/2013]
DPP (Garda McDonnell) v Byrne
IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961
THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA NIALL McDONNELL)
Prosecutor
-AND-
GARRET BYRNE
Accused

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 2010 S4(8)

ROAD TRAFFIC ACT 2010 S12(1)(B)

ROAD TRAFFIC (NO 2) ACT 2011 S9(D)

ROAD TRAFFIC ACT 2010 S12(3)(B)

ROAD TRAFFIC ACT 2010 S12(4)

MISUSE OF DRUGS ACT 1977 S23

ROAD TRAFFIC ACT 2010 S4

MISUSE OF DRUGS ACT 1977 S23(1)

MISUSE OF DRUGS ACT 1977 S23(1B)(C)

MISUSE OF DRUGS ACT 1977 S23(1)(A)

MISUSE OF DRUGS ACT 1977 S23(1)(B)

MISUSE OF DRUGS ACT 1977 S23(1E)

HOWARD & ORS v CMSRS OF PUBLIC WORKS 1994 1 IR 101 1993/3/683

DPP v MOOREHOUSE 2006 1 IR 421 2006 1 ILRM 103 2005/21/4245 2005 IESC 52

DPP v BULLMAN UNREP CCA 28.7.2009 2009/14/3351 2009 IECCA 84

DPP (GARDA O'HIGGINS) v FARRELL 2009 4 IR 689 2009/16/3706 2009 IEHC 368

Road Traffic Accident – Specimen Sample – Compliance – Evidence – Drugs – Intoxication – Delay

Facts: This was a case stated by Judge Anne Watkin, 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) Act, 1961, and the Rules of the District Court. It had been noted that the accused appeared before her to answer a charge of refusing to supply a sample or either urine or blood pursuant to Section 12 (1)(b) of the Road Traffic Act 2010, as amended by Section 9(d) of the Road Traffic (No.2) Act 2011. Garda McDonnell in his evidence stated that on the 15 th November 2012 whilst on active patrol that he became suspicious of a BMW vehicle as he was concerned about the driving of the vehicle. He subsequently stopped the vehicle and stated that he smelled cannabis. He also stated that the accused was very chatty and at times appeared confused and disoriented. However, after searching the accused, his passenger and the car under the Misuse of Drugs Act, no drugs were found. A further sear by a sniffer dog also found no drugs. Garda McDonnell stated in evidence that he formed an opinion at this point that the accused was under the influence of an intoxicant, namely, a controlled drug. However, he stated that he did not arrest the accused at this point but instead asked him if he had taken drugs on the evening in question. In response, the accused replied that he was on "legal medication" for certain medical conditions. Garda McDonnell stated that he asked the accused if he was permitted to drive while taking these medications to which the accused replied 'yes'. Following the search, Garda McDonnell stated that he informed the accused he had formed the opinion that he was under the influence of an intoxicant. He was arrested under 4(8) of the Road Traffic Act 2010 for an alleged offence under Section 4 of the same Act. At the police station a doctor was called to make a requirement under Section 12(1)(b) of the Road Traffic Act 2010 for the purpose of taking a specimen of blood or urine. The accused offered to provide a urine sample, and then declared that he was unable to produce the sample required. The accused was then requested to provide a sample of blood. He refused stating that he was afraid of needles. Garda McDonnell informed the accused that he had committed an offence under Section 12 of the Road Traffic Act and that he was to be charged with that offence. Garda McDonnell confirmed that the accused was not under arrest during the search of his person at the roadside nor immediately after it had been concluded. Garda McDonnell stated, however, that although not under arrest, the accused was not free to leave and would have been prevented if he had tried to do so. On further cross-examination Garda McDonnell could not furnish evidence to the Court as to how long it took for the dog handler (Garda Bartley) to arrive. It was put to Garda McDonnell that Garda Bartley had made a statement indicating she was "working late patrolling the city centre" when she got a call for assistance. Garda McDonnell agreed that the location of the search was some distance from the city centre and that the accused was not ultimately arrested until after the dog handler had arrived and the dog completed the search of the accused's car. When asked how long the entire search took, the Garda estimated that it took about 15 minutes. Garda McDonnell confirmed that, following the search of the accused himself, he was required to wait at the scene pending the search of the passenger and the vehicle, albeit that this was not articulated specifically to the accused. Garda McDonnell stated that, following completion of the searches of the passenger and the vehicle, he informed the accused that he intended to arrest him under the provisions of Section 4(8) of the Road Traffic Act. Dr.Fakih also gave evidence that he was of the opinion that the accused, based on his behaviour, was under the influence of an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle in a public place. In view of the issues arising in the case, the opinion of the High Court was sought in respect of the following questions: (1) Was the detention at the roadside by Garda McDonnell of the accused lawful and permissible under the terms of s.23 of the Misuse of Drugs Act?; (2) Was the subsequent arre93st of the accused under Section 4 (8) of the Road Traffic Act 2010 a lawful arrest?; and (3) If the answer to either (i) or (ii) was "no", was the judge required to exclude the evidence of the making of a requirement under Section 12 (1) (b) of the Road Traffic Act 2010 and any evidence of a subsequent failure by the accused to comply with the requirement?" Counsel for the accused submitted that there were serious issues surrounding the arrest and detention of the accused in that after the search of his person was concluded, the investigating Garda went on to search the passenger of the car and the car itself, however, in all this time, nothing was communicated to the accused either formally or informally, regarding his status. Garda McDonnell accepted under cross-examination that he had formed an opinion regarding the accused at this time, albeit a private thought, and stated that, accordingly, the accused was not free to leave the scene and he would have prevented the accused from leaving the scene had he attempted to do so. Garda McDonnell further accepted that while the accused was detained by the roadside and under ' de facto' arrest, he never actually conveyed this fact to the accused, or invoked any statutory power, and therefore, counsel for the accused contended, his subsequent arrest under s.4 (8) of the Road Traffic Act, 2010, was unlawful. Furthermore, it was argued, while Garda McDonnell was waiting for the back-up Gardaí to arrive, the accused remained at the roadside still in this limbo half-way house regarding his status. Counsel for the accused further contended that Garda McDonnell should have informed the accused of his impending arrest at the point when he had 'formed an opinion' regarding the accused. Once the search of the accused had completed, one of the following three things should have occurred: one, the accused should have been free to leave, thus having his liberty restored; two, a further statutory detention power should have been invoked, which should have been communicated to the accused, or three, the accused should have been arrested for an offence, informed of the reason for same and his liberty thus removed at that moment. Counsel for the accused submitted that there was no practical impediment on the Garda's part to informing the accused of his arrest and detention, instead of detaining him at the roadside in this limbo, half-way house scenario. Counsel for the prosecution contended that this one statement by Garda McDonnell in cross-examination had been taken and given more significance than it actually deserved. He submitted that the accused was informed at every stage of the process exactly what was happening. Counsel for the prosecution doubted that the accused could have been in any doubt as to what was going on. Counsel for the prosecution accepted that while an argument could be made that, once the accused had stated that he was taking legal medication and was permitted to drive whilst on such medication, the accused should have been arrested then. But this does not take into account the fluidity of the investigation. Counsel for the prosecution submitted that the Gardaí are fully entitled to investigate the possible commitment of an offence and argued that although a half-way house situation did probably occur here, it was created by legislation. The legislation doesn't provide for the detention of an accused when their vehicle is being searched, but an accused can be required to stay with the vehicle. Practical reality has to be given to the fluidity of the situation and if one looks at the language in s.23 (1)(a) of the Act, the language is large enough to include the vehicle. On this point, counsel for the prosecution argued that if a member of An Garda Síochána thought that a person was in possession of a drug, even if it's in his vehicle, the Garda can search that person and detain them while a search of their vehicle is being carried out. Counsel for the prosecution stated that this was the approach Judge Watkin took in the District Court. A search of a driver, car and passenger, as in the case at hand, was all part and parcel of the one search and, therefore, if there was a detention, it was a legal detention.

Held by Justice Hedigan that the nub of the case was a question as to whether a driver, subsequent to a search of his person and...

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