DPP v Moloney

• Jurisdiction: Ireland
• Judge: Mr. Justice Finnegan
• Judgment Date: 20 December 2001
• Neutral Citation: [2001] IEHC 178
• Court: High Court
• Docket Number: No. 2201 SS 2000
• Date: 20 December 2001

[2001] IEHC 178

THE HIGH COURT

No. 2201 SS 2000

DPP v. MOLONEY

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

THOMAS MOLONEY

RESPONDENT

Citations:

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51(1)

ROAD TRAFFIC ACT 1994 S12(1)

ROAD TRAFFIC ACT 1961–95 S49(2)

ROAD TRAFFIC ACT 1961–95 S49(3)

ROAD TRAFFIC ACT 1961–95 S50(2)

ROAD TRAFFIC ACT 1961–95 S49

ROAD TRAFFIC ACT 1961–95 S49(6)(B)

ROAD TRAFFIC ACT 1961–95 S49(8)

ROAD TRAFFIC ACT 1961–95 S50

ROAD TRAFFIC ACT 1994 S11

ROAD TRAFFIC ACT 1961–95 S50(6)(B)

ROAD TRAFFIC ACT 1961–95 S50(8)

ROAD TRAFFIC ACT 1961–95 S50(10)

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S53(6)

ROAD TRAFFIC ACT 1994 S106(3A)

ROAD TRAFFIC ACT 1994 S112(6)

ROAD TRAFFIC ACT 1994 S12(3)

ROAD TRAFFIC ACT 1961–94 S13

ROAD TRAFFIC ACT 1994 S10(6)(B)

ROAD TRAFFIC ACT 1994 S11(6)(B)

ROAD TRAFFIC ACT 1961–95 S50(6)(A)

CHRISTIE V LEACHINSKI 1947 1 AER 567

GELBERG V MILLER 1961 AER 291

PREVENTION OF CRIMES (AMDT) ACT 1885 S2

METROPOLITAN POLICE ACT 1839 S54

DPP V MOONEY 1992 1 IR 548

DPP V CONNELL 1998 3 IR 62

ROAD TRAFFIC ACT 1961–95 S49(1)

HOBBS V HURLEY UNREP COSTELLO 10.6.80 1980/6/1106

ROAD TRAFFIC ACT 1961 S2

ROAD TRAFFIC ACT 1994 S10

Synopsis:

CRIMINAL LAW

Road traffic offences

Powers of arrest - Drunk driving - Whether accused arrested under correct section - Whether person arrested under section 49(8) of the Road Traffic Acts, 1961–95 could be charged with offence under Section 50 of the Acts - Road Traffic Act, 1961 - Road Traffic Act, 1994 (2000/2201SS - Finnegan J - 20/12/01)

DPP v Moloney

Facts: The respondent had been requested by a garda to give a breath sample on the suspicion that he had consumed alcohol. The sample was positive and the garda informed the respondent that it was his opinion that the respondent had committed an offence under section 49 of the Road Traffic Acts 1961 and was arresting him pursuant to that section. The respondent was in fact later charged under section 50 of the Act. In the District Court the solicitor on behalf of the respondent contended that the State was not entitled to prosecute a section 50 charge when the respondent had been arrested under section 49 of the Act. It was argued that there were two distinct powers of arrest, i.e. one set out in section 49(8) and in the other in section 50(10). It was submitted that neither section gave power to arrest for an offence under the other section. On behalf of the appellant it was argued that the respondent had been lawfully arrested, no issue regarding the taking of the specimens was raised and the prosecution was entitled to put either charge (i.e. under section 49(2) or Section 50(2)) to the respondent. It was submitted that the evidence before the Court supported a charge of either Section 49(2) or Section 50(2). The District Court Judge accepted the argument made on behalf of the respondent and dismissed the charge against him. The District Court Judge stated a case for the opinion of the High Court as to whether he was correct in law in dismissing the said charge as the respondent had been arrested under Section 49(8) of the Road Traffic Act, 1961 and therefore the respondent could not be convicted of the offence under Section 50(2) and 6(a) of the said Act.

Held by Mr. Justice Finnegan in answering the case stated in the negative. If a man was to be deprived of his freedom he was entitled to know the reason why. However an arrest did not become wrongful merely because a man was arrested for one felony and was subsequently charged with another felony. The garda had formed the opinion that the respondent had consumed intoxicating liquor and had so informed the respondent. The respondent furnished a specimen of his breath which proved positive. The respondent was told that he was being arrested for drink driving. It was quite clear that the arrest was lawful. These facts together were sufficient to constitute the crime with which he was charged which was an offence under the Road Traffic Acts, 1961-1994. It was immaterial that he was in fact arrested pursuant to the statutory power of arrest conferred by section 49(8) of the Acts. The scheme of the Road Traffic Acts was also relevant. Had the respondent in fact been charged under Section 50 of the Acts, he could have been convicted under Section 49 of the Act and vice versa. The learned District Judge was not correct in dismissing the charge and the answer to the composite question accordingly was no.

JUDGMENT of

Mr. Justice Finnegan

1 delivered on the 20th day of December, 2001.

2 This is a case stated by David Riordan, Judge of the District Court, pursuant to Section 2 of the Summary Jurisdiction Act, 1857 as extended by the Courts (Supplemental Provisions) Act,1961Section 51 thereof. The Courts (Supplemental Provisions) Act,1961Section 51 provides as follows:-

" S. 51(1) Section 2 of the Summary Jurisdiction Act, 1857 is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a Justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the Court) if dissatisfied with such determination as being erroneous on a point of law, to apply in writing within 14 days after such determination to the said Justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court."

3 The relevant circumstances are as follows. On the 23rd November, 1999 at 2 p.m., Garda Oliver O'Connell having received a report observed the Respondent's motor vehicle pulled up on the grass verge. He spoke to be the Respondent and observed that the engine was running and that the keys were in the ingnition. When speaking to the Respondent he got a strong smell of alcohol from his breath and the Respondents speech was slurred. He requested the Respondent to step from the vehicle which the Respondent did with some difficulty. Garda O'Connell informed the Respondent that he was of the opinion that he, the Respondent, had consumed intoxicating liquor and that he was going to give him a breath test. He made the formal requirement of him in the following terms:-

"In accordance with Section 12(1) of the Road Traffic Act,1994, I am now requiring you to provide a specimen of your breath by exhaling into this apparatus designed for the purpose of indicating the presence of alcohol in the breath."

4 The Respondent provided a breath specimen and it was positive. Garda O'Connell then informed the Respondent that he was of the opinion that the Respondent had committed an offence under Section 49( 2) or (3) of the Road Traffic Acts,1961/957at Clonea Road, a public place, and that he was arresting him pursuant to subsection 8 of that section. Garda O'Connell explained to the Respondent that he was being arrested for drink driving and cautioned him in the usual terms. The Respondent was taken to Dungarvan Garda Station where he opted to and did provide a specimen of his urine which was sent to the Medical Bureau of Road Safety: the Bureau's certificate indicated that the same contained a concentration of 189 milligrams of alcohol per 100 millilitres of blood.

5 Notwithstanding that the arrest of the Respondent was effected pursuant to the Road Traffic Acts,1961/957Section 49( 2) or (3) the Respondent was in fact charged under the Road Traffic Acts, 1961/957Section 50(2).

6 The Road Traffic Act,1961Section 49 is substituted by the Road Traffic Act,1994Section 10. Insofar as is relevant to these proceedings it provides as follows:-

"S. 49(3) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 107 milligrams of alcohol per 100 millilitres of urine.

(6)(b) A Person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under Section 50 of this Act.

(8) A member of the Garda Siochána may arrest without warrant a person who in the members opinion is committing or has committed an offence under this section."

7 The Road Traffic Act,1961Section 50 is substituted by the Road Traffic Act,1994Section 11. Insofar as is relevant to these proceedings it provides as follows:-

" S. 50(2) A person shall be guilty of an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his body a quantity of alcohol such that, within 3 hours after being so in charge, the concentration of alcohol in his urine will exceed a concentration of 107 milligrams of alcohol per 100 millilitres of urine."

8 (6)(b) A person charged with an offence under this section may in lieu of being found guilty of that offence, be found guilty of an offence under Section 49 of this Act.

9 (8) In a prosecution for an offence under this section it shall be presumed that the Defendant intended to drive or attempted to drive the vehicle concerned until he shows the contrary.

10 (10) A member of the Garda Siochána may arrest without warrant a person who in the members opinion is commiting or has committed an...