Dpp v Kulimushi
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 16 December 2011 |
| Neutral Citation | [2011] IEHC 476 |
| Court | High Court |
| Date | 16 December 2011 |
[2011] IEHC 476
THE HIGH COURT
BETWEEN
ROAD TRAFFIC ACT 1961 S49(4)
ROAD TRAFFIC ACT 1961 S49(8)
DPP v DUFFY 2000 1 IR 393
DPP v GILMORE 1981 ILRM 102
ROAD TRAFFIC ACT 1961 S49(3)
ROAD TRAFFIC ACT 1961 S49(6)
ROAD TRAFFIC ACT 1961 S49(2)
DPP (O'MAHONY) v O'DRISCOLL UNREP SUPREME 1.7.2010 2010/17/4045 2010 IESC 42
O'HARA v CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY 1997 AC 286
DPP (GRANT) v REDDY UNREP KEARNS 4.2.2011 2011 IEHC 40
DPP v O'CONNOR UNREP QUIRKE 14.12.2005 2005/22/4512 2005 IEHC 422
DPP (GARDA O'HIGGINS) v FARRELL 2009 4 IR 689
CRIMINAL LAW
Road traffic offence
Drink driving - Reasonable cause for suspicion - Reasonableness of opinion formed - Lack of challenge by defence - Whether correct in dismissing case - Whether garda validly formed opinion necessary to ground arrest - Whether opinion bona fide - DPPv Duffy [2000] 1 IR 393; DPP v Gilmore [1981] ILRM 102; DPP (O'Mahony) v O'Driscoll [2010] IESC 42, (Unrep, SC, 1/7/2010); O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286; DPP (Grant) v Reddy [2011] IEHC 40, (Unrep, HC, Kearns P, 4/2/2011); DPP v O'Connor [2005] IEHC 422, (Unrep, HC, Quirke J, 14/12/2005) and DPP v Farrell [2009] IEHC 368, (Unrep, HC, Clark, 16/7/2009) considered - Road Traffic Act 1961 (No 24), s 49 - Road Traffic Act 2006 (No 23) - Case stated questions answered in negative, appeal allowed and case remitted to District Court (2011/1034SS - Hedigan J - 16/12/2011) [2011] IEHC 476
DPP v Kulimushi
Facts: A District Judge sought an opinion of the High Court as to whether he was correct in law in holding that an Garda had not formed the opinion necessary to ground an arrest for drunk driving and whether he was correct in law in dismissing the case against the accused. The reasonableness of the opinion formed was not challenged by the defence in cross-examination.
Held by Hedigan J. that it was not open to the District Judge to dismiss the case against the accused on the basis that the prosecuting Garda did not validly form the opinion necessary to ground an arrest for drunk driving. If the Garda formed his opinion on a bona fide basis rather than capriciously or arbitrarily that was enough. It was a low threshold. The appeal would be allowed and the case remitted to the District Court.
Reporter: E.F.
Judgment of Mr. Justice Hedigan delivered the 16th day of December 2011
1. This case stated arises from proceedings dated the 28 th September, 2010, wherein Judge Aeneas McCarthy, a Judge of the District Court sitting at Limerick District Court, sought the opinion of the High Court on the following the questions:-
(a) Whether he was correct in law in holding that the Garda did not validly form the opinion necessary to ground an arrest for drunk driving and
(b) Whether he was correct in law in dismissing the case against the accused on that basis.
2. On the 28 th September, 2010 District Judge Aeneas McCarthy dismissed a prosecution against the accused under Section 49(4) of the Road Traffic Act 1961, as amended, on the ground that he was not satisfied that the arrest was valid based on the opinion of the Garda. The prosecuting Garda, Mark Mannix, had given evidence that he was administering a Mandatory Alcohol Testing Checkpoint under the Road Traffic Act 2006 and that he required the accused to provide a roadside specimen of his breath. The Garda gave evidence that the result of this preliminary breath test was "positive". He then gave evidence that he formed the requisite opinion for the arrest of the accused under section 49(8) of the Road Traffic Act, 1961 to 1994. The reasonableness of the opinion formed by the prosecuting Garda was not challenged by the defence in cross-examination. The District Judge questioned this issue at the conclusion of the prosecution and defence case but the prosecuting guard was not recalled to address this point. The District Judge noted that the word "positive" was more suitable in the context of the "old" breathalyzer apparatus, which had been in use up to the end of 2005, and which only had two readings, "positive" and 'fail". He noted that the breathalyser currently in operation has four readings and that a positive reading could include "alert", which is a reading of less than 30 to 35 mg of alcohol per hundred millilitres of breath, or a "fail", which is a reading greater than 35 mg of alcohol per hundred millilitres of breath. The Judge held that he was not satisfied that the arrest was valid based on the opinion of the Garda. The DPP seeks to appeal this finding and District Judge Aeneas McCarty has sought the opinion of the High Court on the questions outlined above.
3. The starting point for a consideration of this issue is the case of DPP v Duffy [2000] 1 JR 393, which establishes the principle that if a Garda states that he has formed the requisite opinion, and where the accused has been represented by a competent legal practitioner and the validity of such opinion has not been challenged, then the evidence of the Garda as to the formation of the opinion is sufficient. In that case, the Garda had not given any evidence as to the basis for his opinion, but this had not been questioned by the defence, by cross examination or otherwise. Quirke J. stated as follows:-
"In the instant case, the provisions of s. 12 of the Act of 1994 required that before requiring the accused to provide a specimen of his breath it was necessary for Sergeant Treacy to have formed the opinion that the accused had consumed intoxicating...
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