DPP v Lorraine O'Sullivan

• Jurisdiction: Ireland
• Judge: Mr. Justice David Keane
• Judgment Date: 06 November 2015
• Neutral Citation: [2015] IEHC 693
• Court: High Court
• Date: 06 November 2015

[2015] IEHC 693

THE HIGH COURT

[No. 979SS/2014]

DPP v Lorraine O'Sullivan

No Redaction Needed

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

DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

LORRAINE O'SULLIVAN

RESPONDENT

Practice & Procedures – Crime & Sentencing – S. 4 (8) of the Road Traffic Act 2010 – S. 2 of the Summary Jurisdiction Act, as amended by s. 51 of the Courts (Supplemental Provisions) Act 1961

Facts: The appellant had filed an appeal against the decision of the District Judge by way of case stated under s. 2 of the Summary Jurisdiction Act on the questions: whether the District Judge was correct in law in holding that the detention of the respondent/accused arrested under s. 4 (8) of the Road Traffic Act 2010 for 20 minutes' observation after her arrival at the Garda Station was invalid and whether the District Judge was correct in law for dismissing the case against the respondent/accused on that basis.

Mr. Justice David Keane held that the District Judge was incorrect in law in holding that the detention of the respondent was unlawful and in dismissing the case against the respondent. The Court held that the District Judge had not been made aware of the dicta of Murray j. in Director of Public Prosecutions v McNiece [2003] 2 I.R. 614 that the necessary observations for administration of a precise test by the use of an intoxilyser to determine the level of alcohol would be better carried out in a controlled situation in a garda station than in a patrol vehicle faced with risky arresting situations. The Court found that there was nothing irrational and illogical for putting the respondent under 20 minutes of observation in the garda station before administration of the test as it had important consequences for the arrested person and for the common good. The Court held that if the required test was not done in a controlled environment, there would always be a risk that an accused could claim to have taken something while the garda was momentarily distracted.

1 JUDGMENT of Mr. Justice David Keane delivered on the 6th November 2015

Introduction

2 1. This is an appeal by way of case stated from the District Court, pursuant to the provisions of s. 2 of the Summary Jurisdiction Act 1857, as extended by the terms of s. 51 of the Courts (Supplemental Provisions) Act 1961. District Judge Bryan Smyth stated the case at the request of the Director of Public Prosecutions ("the appellant").

The Case Stated

3 2. The learned District Judge has set out the facts and grounds of the determination under appeal as follows:

4 (i) Ms Lorraine O'Sullivan (the accused herein) [and the respondent to the present appeal ("the respondent")] appeared before me at Court 8. Criminal Courts of Justice, on the 8 ^th January 2014 on foot of charge sheet 13739012 alleging that she did on the 4/ 5/2013 at Ballyfermot Garda Station, being a person arrested under s. 4(8) of the Road Traffic Act 2010, having been required by Garda Anne Irwin, a member of the Garda Síochána, pursuant to s. 12(1)(a) of the Road Traffic Act 2010, as amended by s. 9(d) of the Road Traffic (No. 2) Act 2011, to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, two specimens of her breath, did fail to comply immediately with the said requirement of the said member of An Garda Síochána, contrary to s. 12(1)(a), (2) and (4) of the Road Traffic Act 2010, as amended.

5 (ii) Treasa Howell Solicitors represented the [respondent]. Counsel was instructed to appear on behalf of the [respondent]. Michael Durkan, Solicitor, instructed by the Chief Prosecution Solicitor, represented the [appellant].

6 (iii) The facts as proved or admitted or agreed and as found by me are as follows:-

7 a a. Garda John Noonan gave evidence as follows, which I accepted. He is stationed at Clondalkin Garda Station, Dublin 22. On 3 May, 2013, he took up duty as observed in the patrol car. At approximately 4:40 AM on the morning ofthe 4 ^th May,2013,he was driving on St. Cuthbert's Road, Clondalkin, Dublin 22, when he observed the relevant vehicle, parked at the bus stop with its lights on and the engine running. As the patrol car went to pull up alongside, the driver attempted to drive off before again coming to a complete stop, when the Garda requested her to do so. The Garda then requested the driver to roll down the driver's window, which she seemed to have difficulty with. On speaking with the driver, the Garda asked if she was okay. At first, she did not reply, before repeating three times that she was okay. During this time, the Garda noted that her speech was very slurred and her eyes were glazed over. When the Garda asked her name again, she just repeated that she was okay before rolling up the window and again attempting to drive off, before being instructed again to stop. Garda Noonan then cautioned the driver, who gave her details as Lorraine O'Sullivan, the [respondent]. The Garda formed the relevant opinion and arrested the [respondent] for drunk driving.

8 b b. The Garda arrested the [respondent] at 4.45 AM under s. 4(8) of the Road Traffic Act 2010. He then placed her in the patrol car and escorted her to Ballyfermot Garda Station, where they arrived at 5.05 AM. At this stage, the Garda said he then began a 20 minute period of observation to ensure that the [respondent] had nil by mouth prior to the administration of the Evidenzer procedure. At 5:15 AM, Garda Annie Irwin introduced herself to the [respondent] as the Evidenzer Garda. At 5:25 AM, Garda Irwin and Garda Noonan escorted the accused to the Evidenzer room. Here, Garda Noonan observed Garda Irwin carry out the Evidenzer procedure and he observed the accused failing to comply with Garda Irwin's requirement. The accused was then later charged with the offence of failing to provide a specimen set out above.

9 c c. Garda Noonan was then cross-examined and during cross-examination, he said he was seated in the rear of the patrol car beside the accused on the journey to the Garda Station. He accepted that the accused was handcuffed. He said that he closely observed her during this period. He was asked if there was any possibility that she may have had a drink, taken medication or belched while in the backseat of the car. [H]e stated she did not. He was asked if he had just spent 20 minutes in a car with the accused watching her, how could he possibly justify watching her for another 20 minutes when they got to the Garda station. He responded it was his standard procedure to begin the observation period at the Garda station. The Garda was then re-examined on this point and asked if it was dark in the patrol car on the journey to the station. The Garda confirmed that it was. He also said he could not be 100% sure that the accused had nil by mouth on the journey to the station.

10 d d. It was submitted then on behalf of the defence that there was no justification for the 20 minute period of observation in Ballyfermot Garda Station. Mr Durkan, for the prosecution, said the 20 minute period in the Garda Station was justified as the interior of the station was better lit than a patrol car and there were no distractions such as there would be outside the window of a moving patrol car. Mr Durkan also submitted that the prosecution was entirely justified in conducting the 20 minute observation period in the controlled environment at the Garda Station and that he should therefore be allowed to continue with his evidence and to call the Evidenzer Garda. Mr Durkan made no reference to the decision in Director of Public Prosecutions v. McNiece [2003] 2 I.R. 614.

11 e e. The Evidenzer Garda was not called at this stage as I decided that I was in agreement with the defence that the detention of the accused for 20 minutes after arrival at the Garda station was not justified. At this stage, I then acceded to the defence application for a direction on the basis that the detention of the [respondent] at the Garda station was invalid, without hearing any further evidence.

12 (iv) The prosecutor now seeks to appeal by way of case stated. The opinion of the High Court is sought on the question as to;

13 (a) whether I was correct in law in holding that the detention of the [respondent] for 20 minutes observation after her arrival at Ballyfermot Garda Station was invalid;

14 (b) whether I was correct in law in dismissing the case against the accused on that basis."

The McNiece decision

15 3. It is an especially noteworthy feature of the grounds of the determination made by the learned District Judge in this case, as set out in the case stated, that no reference was made in argument before him to the decision in Director of Public Prosecutions v. McNiece [2003] 2 I.R. 614.

16 4. McNiece involved a consultative case stated to the Supreme Court in the course of a Circuit Court appeal against a District Court conviction for an offence of failing to provide two specimens of breath, subsequent to arrest on suspicion of driving while intoxicated, contrary to s. 13(2) of the Road Traffic Act 1994.

17 5. Two questions were posed for the consideration of the Supreme Court, the second of which is more pertinent for the purpose of the present judgment. That question was, in circumstances where the accused had been in the company of the arresting garda from the time his vehicle came to a halt to the time of his arrival at the Garda station, whether it was lawful for another garda to detain the accused for a period of twenty minutes at the Garda station in order to observe him prior to requiring him to provide the relevant breath samples.

18 6. In giving judgment on that question, Murray J. (Keane C.J. and Denham, McGuinness and Hardiman JJ. concurring) stated (at pp. 624-5 of the report):

...