DPP v O'Neill

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 15 February 2008
• Neutral Citation: [2008] IEHC 457
• Court: High Court
• Date: 15 February 2008

[2008] IEHC 457

THE HIGH COURT

[No. 1492 S.S./2007]

DPP v O'Neill

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS, 1961 - 1991 AND IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

GERARD O'NEILL

ACCUSED

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1961 S50(2)

ROAD TRAFFIC ACT 1961 S50(6)(A)

ROAD TRAFFIC ACT 1994 S11

ROAD TRAFFIC ACT 2002 S23

ROAD TRAFFIC ACT 1961 S50(10)

ROAD TRAFFIC ACT 1961 S50(1)

ROAD TRAFFIC ACT 1961 S50(2)

ROAD TRAFFIC ACT 1961 S50(3)

ROAD TRAFFIC ACT 1961 S50(4)

ROAD TRAFFIC ACT 1961 S50

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1961 S50(6)(B)

ROAD TRAFFIC ACT 1961 S50(8)

DPP v TYNDALL 2005 1 IR 593 2006 1 ILRM 1 2005/22/4618 2005 IESC 28

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S30(1)

DPP v O'CONNOR 1985 ILRM 333 1984/6/1977

DPP v BYRNE 2002 2 IR 397 2002 2 ILRM 68 2001/7/1593

DPP v KENNY UNREP HERBERT 13.10.2006 2006/19/3924 2006 IEHC 330

ROAD TRAFFIC ACT 1961 S49(6)(B)

CHRISTIE v LEACHINSKY 1947 1 AER 567 1947 AC 573

GELBERG v MILLER 1961 1 AER 291 1961 1 WLR 153

HOBBS v HURLEY UNREP COSTELLO 10.6.1980 1980/6/1106

DPP v CONNELL 1998 3 IR 62 2000/20/7776

DPP v MOLONEY UNREP FINNEGAN 20.12.2001 2001/8/2055

DPP v KENNY 1990 2 IR 124 1990 ILRM 569 1990/2/431

INTERPRETATION ACT 2005 S5(1)

ROAD TRAFFIC ACT 1961 S3

CRIMINAL LAW

Road traffic offences

Drink driving - Arrest - Driving - Intention to drive - Applicant alleged to have been found in driver's seat of car with engine running - Applicant arrested for offence contrary to s. 50 of the Road Traffic Act 1961 - Alternative verdicts - Literal interpretation - Whether grounds for arrest valid - Whether suspicion of arresting garda rational - Whether arresting garda could have reasonably concluded that applicant intended to drive - DPP v Kenny [1990] ILRM 569 applied; DPP v Tyndall [2005] IESC 28 [2005] 1 IR 593, DPP v O'Connor [1985] ILRM 333, DPP v Byrne [2002] 2 ILRM 268, DPP v Kenny [2006] IEHC 330 (Unrep, Herbert J, 13/10/2006), Christie v Leachinsky [1947] 1 All ER 567, Gelberg v Miller [1961] 1 All ER 29, Hobbs v Hurley (Unrep, Costello J, 10/6/1980) and DPP v Connell [1998] 3 IR 62 considered; DPP v Moloney (Unrep, Finnegan P, 20/12/2001) distinguished - Road Traffic Act 1961 (No 24), ss 49 and 50 - Interpretation Act 2005 (No 23), s5 - Arrest declared unlawful (2007/1492SS - Edwards J - 15/2/2008) [2008] IEHC 457

DPP v O'Neill

Facts The accused was arrested pursuant to s. 50(10) of the Road Traffic Act, 1961 as inserted by s. 11 of the Road Traffic Act, 1994 and was prosecuted for an offence pursuant to s. 50(2) of that Act. The prosecuting Garda gave evidence that having observed the accused's vehicle in the middle of the road with the engine running and the activation of the left and right indicators she approached the vehicle and observed the accused in the driving seat. The Garda also stated that she had observed the brake lights turning off and formed the opinion that the accused was attempting to drive. It was submitted on behalf of the accused that on the evidence offered by the Garda she could not have reasonably concluded that the accused was committing or had committed and offence under s. 50 as the evidence clearly established that the accused attempted to drive and that therefore the arrest of the accused under that section was unlawful in the circumstances of this case and all evidence obtained following that arrest was inadmissible. The learned District Judge found that the accused had attempted to drive but that the opinion formed by the Garda was bona fides though mistaken. Having found that the arrest was lawful the learned District Judge sought the opinion of this Court as to whether he was correct in so holding.

Held by Edwards J. in answering the question posed in the negative: That notwithstanding the Oireachtas' intention that ss. 49 and 50 should compliment each other, both of those sections contained separate and distinct powers of arrest. For the power of arrest under either section to be lawfully exercised the opinion of the arresting Garda grounding such arrest must be rational and bona fide. In this case, the only rational interpretation of the accused's actions, facing the prosecuting Garda was that the accused was attempting to drive. Consequently, the opinion formed by the Garda that an offence had been, or was being committed under s. 50 as opposed to s. 49 was irrational. That being the case, the accused's arrest and subsequent detention was unlawful and in deliberate and conscious violation of his constitutional right to liberty and accordingly any evidence obtained during that time, including the sample of his blood was inadmissible in evidence.

Reporter: L.O'S.

1 JUDGMENT of Mr Justice Edwards delivered on the 15th day of February, 2008

Introduction

2 On the 10 ^th October 2007 Gerard J. Haughton, a Judge of the District Court, sitting in the District Court at Arklow in the County of Wicklow, stated a case for the determination of the High Court pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961. The facts of the matter are succinctly stated by the District Judge within his case stated in the following terms:-

Facts

3 1. At a sitting of the District Court held at Arklow in the County of Wicklow on the 1 ^st day of March 2006, the accused appeared before me, charged that he was, on the 30/09/05 at Main Street Arklow in the said District Court area of Arklow, in charge of a mechanically propelled vehicle registered number 04-WX-402 in a public place with intent to drive the said vehicle (but not driving or attempting to drive it) when in his body there was present a quantity of alcohol such that within three hours of having been so in charge of the vehicle, the concentration of alcohol in his blood exceeded a concentration of 80 milligrammes of alcohol per 100 millilitres of blood, contrary to s. 50(2) and (6) (a) of the Road Traffic Act, 1961 as inserted by s. 11 of the Road Traffic Act, 1994 as amended by s. 23 of the Road Traffic Act, 2002.

4 2. At the hearing of the said complaint evidence was given on behalf of the prosecutor by Garda Marion Galvin as follows:-

"I am a member of An Garda Síochána stationed at Arklow. On Friday, 30 ^th September, 2005 at 11.41 pm I was on duty as observer in the official Arklow patrol car accompanied by Garda Liam Rochford. While driving along Arklow Main Street I observed a motor car 04-WX-402 stopped with the engine running in the middle of the road facing towards the bridge. This car indicated to turn left and then indicated to turn right and was about to move off when I approached the driver. The car was causing an obstruction to traffic heading towards the bridge. On speaking to the driver I got a strong smell of alcohol from his breath and 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 of Glenour Adamstown, Co. Wexford. I then formed the opinion that the driver Gerard O'Neill was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle whilst under the influence of an intoxicant at Wexford Road a public place and at 11.42 pm I arrested Gerard O'Neill under s. 50(10) of the Road Traffic Act 1961/ 947 for an offence under s. 50(1), 50(2), 50( 3), or 50(4) of the said Act. I explained to him in ordinary language that I was arresting him for drink driving. (Further evidence was given by Garda Galvin touching upon the procedure followed by her in bringing the accused to Arklow Garda Station where a blood sample was taken from him which on analysis was proved to contain a concentration of 169 milligrammes of alcohol per 100 millilitres of blood). On cross examination of Garda Galvin by counsel on behalf of the accused Garda Galvin again stated that she observed the accused's vehicle indicate to turn right and then left by the operation of the indicators and she further stated 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 further stated that she was familiar with the provisions of s. 50 of the Road Traffic Act, 1961- 1994 under which she arrested the accused and she agreed that this offence applies to a person 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. She also stated that she did not see the accused actually driving the vehicle, but the vehicle was stationary and the person (the accused) was attempting to drive. She also agreed on cross examination that she told the accused that she was arresting him for 'drunk driving'".

5 3. It was contended for the accused that on the evidence offered by Garda Galvin she could not have reasonably concluded that the accused was committing or had committed an offence under s. 50 of the Road Traffic Act, 1961- 1994 as the evidence clearly established that the accused attempted to drive and that therefore the arrest of the accused under that section was unlawful in the circumstances of this case. It was further contended for the accused that if this contention is correct then the subsequent events were inadmissible in evidence and the accused ought to be acquitted.

6 4. It was contended for the Director of Public Prosecutions that the arrest of the...