DPP v O'Neill,  IESC 7 (2011)
THE SUPREME COURT[Appeal No: 92 of 2008]
The Director of Public ProsecutionsApplicant and
Judgment delivered on the 16th day of February, 2011 by Denham J.
This is an appeal by the Director of Public Prosecutions, the prosecutor/appellant, "the D.P.P.", from a decision of the High Court (Edwards J.) delivered on the 15th February, 2008,  I.E.H.C. 457.
The facts are set out in the case stated, signed by Judge Gerard J. Haughton on the 10th October, 2007. Gerard O'Neill, the accused/respondent, "the respondent", was arrested by a member of An Garda Síochána under s.50(10) of the Road Traffic Act, 1961. Garda Marion Galvin gave evidence as follows. On Friday the 30th September, 2005, at 11.41 p.m., she was on duty as observer of the official Arklow patrol car, accompanied by Garda Liam Rochford. While driving along the Main Street of Arklow she observed a motor car, registered number 04 WX 402, stopped with the engine running in the middle of the road facing towards the bridge. The car indicated to turn left and then indicated to turn right and was about to move off when Garda Galvin approached the driver. The car was causing an obstruction to traffic heading towards the bridge. On speaking to the driver, Garda Galvin got a strong smell of alcohol from his breath and noticed that his speech was slurred. The keys were in the ignition of the car and the engine was running. The driver gave his name as Gerard O'Neill, who is the respondent. Garda Galvin formed the opinion that the respondent was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle while under the influence of an intoxicant at Wexford Road, a public place. At 11.42 p.m. Garda Galvin arrested the respondent under s.50(10) of the Road Traffic Act, 1961, as amended, for an offence under s.50(1), s.50(2), s.50(3) or s.50(4) of said Act. Garda Galvin explained to the respondent in ordinary language, as stated in the Case Stated, that she was arresting him for "drink driving". Garda Galvin gave further evidence which is not relevant to the issue before the Court. On cross-examination, Garda Galvin again stated that she observed the respondent's vehicle indicate to turn right and then to turn left by the operation of the indicators. She stated further that in concluding that the vehicle was about to move off she had observed that the brake lights of the vehicle, which had been on, went off. Garda Galvin stated that she was familiar with the provisions of s.50 of the Road Traffic Act, 1961, as amended. She agreed that she did not see the respondent actually driving the vehicle, that the vehicle was stationary and that the respondent was attempting to drive. She also agreed that she told the respondent that she was arresting him for "drunk driving".
Judge Haughton held that he was satisfied of the following facts:-
(a) That the respondent attempted to drive the vehicle;
(b) That the opinion formed by the garda was bona fide though mistaken.
Judge Haughton stated that it was his view that the alternate verdicts available in prosecutions under s.49 and s.50 of the Road Traffic Act, 1961, as amended, were relevant to the matter and that having regard to the evidence in the case, he was of the opinion that the arrest was lawful.
Judge Haughton stated a case for the opinion of the High Court and consequently reserved his decision on the said complaint pending determination of the case stated.
The opinion of the High Court was sought on the following question:
"On the facts as found by me and on the evidence given by Garda Marion Galvin as to her observations of the vehicle prior to the arrest of [the respondent] as a matter of law can it be held that the arrest of [the respondent] was lawful?"
On the 15th February, 2008, the High Court answered the question in the negative.
The learned High Court judge held, inter alia:-
"I am satisfied that in enacting ss.49 and 50 the Oireachtas clearly intended to comprehensively address all manifestations of the mischief in question and to that end intended that the sections should complement each other. It is clear that this is so from the presence of the alternative verdict provisions contained in s. 49(6)(b) and s. 50(6)(b) respectively. I think that any other construction would be absurd and untenable.
However, my conclusion in that regard does not dispose of the issue that has been raised in this case. It does not dispose of it because, notwithstanding that the Oireachtas intended that ss.49 and 50 should complement each other, both of these sections contain separate and distinct powers of arrest. These are contained in s. 49(8) and s. 50(10) respectively. The power of arrest created by each of these subsections respectively relates only to “a person who in the member's opinion is committing or has committed an offence under this section” (my emphasis).
What is the significance of this? It is this. The applicant contends that for the power of arrest under either subsection to be validly exercised the member must hold the required opinion, and that opinion must be bona fide held and not irrational. The bona fides of Garda Galvin is not in issue. However, the rationality of her opinion that an offence under s. 50 had been, or was being, committed is in issue. If the applicant is right then the arrest was bad. If the arrest was bad then the accused was detained in breach of his constitutional right to liberty. Notwithstanding that this might have occurred without mala fides on the part of Garda Galvin, and due to a genuine mistake of fact, the arrest was undoubtedly a deliberate and conscious action in the sense referred to in People (DPP) v. Kenny  I.L.R.M. 569. That being the case, and in the absence of extraordinary excusing circumstances (of which there do not appear to be any), all evidence obtained in consequence of this deliberate and conscious violation of the accused's constitutional right to liberty would be tainted and inadmissible at trial. Such evidence would include, in the circumstances of this case, the sample of blood taken from the accused in Arklow Garda Station, and its analysis. Accordingly, although it would theoretically be open to the District Judge to convict the accused of an s. 49 offence following his trial on a charge preferred under s. 50, he could only do so if there was evidence that an offence under s. 49 had been committed. In circumstances where evidence relating to the blood sample and its analysis could not be admitted, and in the absence of other admissible evidence of intoxication, the District Judge would have no option but to acquit the accused.
While it might be argued, as the respondent has sought to do in this case, that the legislature never envisaged that an intended target of ss. 49 and 50 should "fall between two stools", and that accordingly any construction leading to that result ought to be rejected as absurd, I must respectfully disagree. The language used in both s. 49(8) and s. 50(10) is quite clear. They cannot be read as one, or as being...
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