DPP v Mangan

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 06 April 2001
• Neutral Citation: [2001] IESC 111
• Court: Supreme Court
• Docket Number: [S.C. No. 324 of 1998]
• Date: 06 April 2001

DPP v. MANGAN

CASE STATED PURSUANT TO THE PROVISIONS OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

AND

SIMON MANGAN

Accused/Appellant

[2001] IESC 111

324/98

THE SUPREME COURT

Synopsis:

Road Traffic

Road traffic; case stated; appellant convicted for refusing to permit doctor to take blood specimen; whether trial judge entitled to infer that requirement made by Garda pursuant to Road Traffic Act was made under Road Traffic Act, 1994; whether trial judge correct in law in holding that later requirement merely a repetition of earlier requirement or alternatively otiose; whether requirement with which appellant refused to comply, was lawful.

Held: Trial judge entitled to hold that appellant had refused to comply with a lawful requirement pursuant to 1994 Act.

DPP. v. Mangan - Supreme Court: Keane C.J., Denham J., Geoghegan J. - 06/04/2001 - [2001] 2 IR 373 - [2002] 1 ILRM 417

Citations:

ROAD TRAFFIC ACT 1994 S13(3)

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S13(1)(b)

ROAD TRAFFIC ACT 1961 S13

ROAD TRAFFIC ACT 1968 S13

ROAD TRAFFIC ACT 1973 S13

ROAD TRAFFIC ACT 1978 S13

ROAD TRAFFIC ACT 1961 S13(1)(b)

DPP V MCGARRIGLE (NOT CIRC) 22.6.1987 1991/11/2775

BRENNAN V DPP 1996 1 ILRM 267

DPP V HAND 1994 1 IR 577

COUGHLAN, DPP V SWAN 1994 1 ILRM 314

ROAD TRAFFIC ACT 1978 S14

1 6th day of April 2001 by Keane C.J. [nem diss]

2 This is a Consultative Case Stated by Judge Patrick McCartan of the Circuit Court. It arises out of the prosecution of the appellant in respect of an offence alleged to have been committed by him of refusing to permit a designated doctor to take from him a specimen of his blood contrary to s. 13(3) of the Road Traffic Act, 1994(hereafter "the 1994 Act"). The appellant was convicted in the District Court of the alleged offence and appealed to the Circuit Court.

3 I think that it is helpful at the outset to set out the relevant statutory provisions. Section 13(1) of the 1994 Act provides that:

"Where a person is arrested under s. 49( 8) or 50(1) of the Principal Act or s. 12 (3), or where a person is arrested under s. 53(6), 106(3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following ..."

4 (b) require the person either -

5 (i) to permit a designated doctor to take from the person a specimen of his blood, or

6 (ii) at the option of the person, to provide for the designated doctor a specimen of his urine,

7 and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related."

8 Section 13(3) provides that

" ... A person who, following a requirement under subsection (1)(b)"

(a) refuses or fails to comply with the requirement, or

(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection of a specimen of blood or the provisions under that subsection of a specimen of urine,

9 shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both."

10 The only witness called on behalf of the prosecutor in the Circuit Court was Garda Christine Dowling. She gave evidence that she had been on duty on the 11th April 1996 at approximately 12.30 a.m. as an observer in a garda patrol car which was being driven at or about the Dublin Road, Swords. She observed a motor car being driven in an erratic fashion. The driver put on the flashing beacon on the patrol car and the vehicle which had been observed being driven in an erratic fashion stopped and the driver got out. Garda Dowling approached the driver who gave his name as Simon Mangan, of Borranstown, Ashbourne, Co. Meath, the appellant.

11 Garda Dowling said that she formed the opinion that the appellant was incapable of having proper control of the motor car due to the consumption of an intoxicant, arrested him and conveyed him to Swords Garda Station. A Dr. Williams was called and arrived at 12.40 a.m. When the doctor arrived, the appellant was brought to the doctor's room.

12 Garda Dowling then said in her evidence:

"At 1.05 a.m., I required the appellant pursuant to the provisions of s. 13(1)(b) of the Road Traffic Act to permit the designated doctor to take from him a specimen of his blood, or at his option, to provide the designated doctor with a specimen of his urine."

13 She also explained that it was an offence not to comply and she explained the penalties involved.

14 Garda Dowling said that the appellant opted to give a urine specimen and was provided with the relevant jug by the designated doctor. She said that there then followed several attempts on the part of the appellant to provide a urine specimen. On three occasions he went into the toilet area and attempted to give a specimen, but was unable to provide it. Her evidence went on as follows:

"At 1.48 a.m., I then made a further requirement of the accused to provide for the designated doctor a sample of his blood and I explained the penalties to him. He refused to give a specimen."

15 That completed the case for the prosecution.

16 Counsel for the appellant advanced two submissions to the learned Circuit Court judge. First, he said that there was not sufficient evidence before the court that the requirement on which the prosecution relied had been made under s. 13(1)(b) of the Road Traffic Act of 1994. He pointed out that other Road Traffic Acts - those of 1961, 1968, 1973 and 1978 - contained a section 13 and the 1961 Act contained a section 13(1)(b). Counsel submitted that, having regard to the decision of this court in Director of Public Prosecutions .v. McGarrigle,decided by this court on 22nd June 1987 and reported in the form of an appendix to Brennan .v. Director of Public Prosecution, [ (1996) 1 ILRM 267 at p. 271] it was an essential proof that the requirement had been made by Garda Dowling under the Road Traffic Act 1994.

17 Having heard submissions on behalf of the prosecutor, the learned Circuit Court judge said that, while he accepted that there had been no express evidence given that the Road Traffic Act in question was the Road Traffic Act 1994, he was prepared to draw the inference that the requirement had been made under the 1994 Act.

18 Counsel secondly submitted that the requirement with which the applicant had refused to comply was that made at 1.48 a.m. when he was simply required to provide a blood sample. Counsel submitted that there was no provision in the 1994 Act or indeed in any other Road Traffic Act providing for the legality of such a requirement. It was accordingly submitted that, in the circumstances, the requirement with which the appellant had refused to comply was neither the requirement set out in the charge nor a requirement provided for by the 1994 Act.

19 Having heard submissions on behalf of the prosecutor, the learned Circuit Court judge said that the was satisfied that the requirement made at 1.48 a.m. merely repeated the earlier requirement or in the alternative was not relevant.

20 The learned Circuit Court judge said in the Case Stated that, at the request of the appellant, he had agreed to state for the opinion of this court the following questions of law:

21 i "(i) In the circumstances before me, where the evidence given was that the requirement made by Garda Dowling at 1.05 a.m. was made pursuant to s. 13(1)(b) of the Road Traffic Act, was I entitled to infer that the requirement was made under the Road Traffic Act, 1994?

22 (ii) If the answer to the above question is yes, whether I was correct in law in holding that the requirement made at 1.48 a.m. was merely a repetition of the requirement made at 1.05 a.m. or in the alternative otiose?

23 (iii) If the answer to (ii) above is "no", was the requirement which the appellant refused to comply with a lawful requirement?"

24 On behalf of the appellant, Mr. Feichín McDonagh S.C. submitted that the effect of the decision of this court in McGarrigle was that a person charged with the offence of refusing to give a specimen when required to do so could not be convicted of that offence unless the court of trial was satisfied that he or she was informed of the specific section of the relevant statute - in this case s. 13 of the 1994 Act - under which the requirement was being made. That this was the effect of the decision in McGarrigle was, he urged, made clear by the subsequent decision of this court in The Director of Public Prosecutions .v. Hand, (1994) 1 IR 577. Hence, the omission by Garda Dowling to specify the Road Traffic Act under which the requirement was made was fatal: for all the appellant knew, she could have been referring to s. 13(1)(b) of the Road Traffic Act, 1961which dealt, of course, with an entirely different matter. He submitted that this was in accordance with the principle laid down in McGarriage, i.e. that the obligation to give a specimen which may establish the commission of a serious offence is an exception to the general principle of the criminal law protecting accused persons against involuntarily self-incrimination. It followed, as the court went on to hold in McGarrigle, that in such circumstances the making of the requirement under the relevant section with which the accused had allegedly failed to comply must be affirmatively proved and could not be left to be inferred, as was...