DPP v O'Neill

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 16 February 2011
• Neutral Citation: [2011] IESC 7
• Court: Supreme Court
• Date: 16 February 2011

[2011] IESC 7

THE SUPREME COURT

Denham J.

Macken J.

O'Donnell J.

[Appeal No: 92 of 2008]

DPP v O'Neill

Between/

The Director of Public Prosecutions

Applicant

and

Gerard O'Neill

Respondent

DPP v O'NEILL UNREP EDWARDS 15.2.2008 2009/18/4435 2008 IEHC 457

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 S49

DPP v MOLONEY UNREP FINNEGAN 20.12.2001 2001/8/2055 2001 IEHC 178

ROAD TRAFFIC ACT 1961 S49(8)

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 1994 S10

ROAD TRAFFIC ACT 1961 S50(4)

ROAD TRAFFIC ACT 1961 S50(6)(B)

ROAD TRAFFIC ACT 1961 S50(8)

ROAD TRAFFIC ACT 1994 S11

HOBBS v HURLEY UNREP COSTELLO 10.6.1980 1980/6/1106

DPP v BREHENY UNREP SUPREME 2.3.1993 1993/2/255

DPP v GRAY 1987 ILRM 4

ROAD TRAFFIC ACT 1961 S112

ROAD TRAFFIC ACT 1961 S113

ROAD TRAFFIC ACT 1961 S112(6)

ROAD TRAFFIC ACT (AMDT) ACT 1978 S13(3)

ROAD TRAFFIC ACT (AMDT) ACT 1984 S5

DPP v FINNEGAN 2009 1 IR 48

DPP v BYRNE 2002 2 IR 397

CRIMINAL LAW

Road traffic offences

Arrest - Opinion - Bona fides -Irrationality - No qualifying words in relation to forming opinion - Lawful arrest - Fact opinion mistaken does not alter validity of arrest -DPP v Byrne [2002] 2 IR 397 and DPP v Moloney (Unrep, Finnegan P, 20/12/2001) approved; People (DPP) v Kenny [1990] 2 IR 110; Hobbs v Hurley (Unrep, Costello J, 10/6/1980); DPP v Breheny (Unrep, SC, 2/3/1993); DPP v Gray (Unrep, O'Hanlon J, 8/5/1987); DPP v Finnegan [2009] 1 IR 48 considered - Road Traffic Act 1961 (No 24), ss 2, 49 and 50 - Interpretation Act 2005 (No 23), s 5 -Road Traffic Act 1994 (No 7), ss 10 and 11 - Road Traffic (Amendment) Act 1978 (No 19) s 13 - Road Traffic (Amendment) Act 1984 (No 16), s 5 - Prosecutor's appeal allowed (92/08 - SC - 16/2/2011) [2011] IESC 7

DPP v O'Neill

Facts The case involved the arrest of the respondent by a Garda on the suspicion of drunk driving. The respondent was arrested by a member of An Garda S?och?na under s.50(10) of the Road Traffic Act, 1961. Evidence was given that the respondent had been seen in a stopped motor car with the keys in the ignition of the car and the engine running. The Garda formed the opinion that the respondent was under the influence of an intoxicant and was arrested. The Garda agreed that she had not see the respondent actually driving the vehicle and that the vehicle was stationary. The District Judge held that the respondent was attempting to drive the vehicle but that the opinion formed by the garda was bona fide though mistaken. However having regard to the evidence in the case, the Judge was of the opinion that the arrest was lawful. On a case stated in the High Court it was held the arrest in question had not been valid and thus all evidence thereafter obtained was inadmissible at trial. Although it would theoretically be open to the District Judge to convict the accused of an offence under section 49 Road Traffic Act, 1961 on a charge under s. 50, this could only done if there was evidence that an offence under s. 49 had been committed. In circumstances where evidence relating to the blood sample could not be admitted, and in the absence of other evidence, the District Judge would have no option but to acquit the accused. The DPP appealed against the decision.

Held by the Supreme Court (Denham J delivering judgment) in answering the case stated as follows. The statutory requirement was that the Garda must form an opinion. In this case, the Garda formed an opinion, bona fide, on the facts and reached a conclusion of law and invoked section 50(10). The opinion of Garda Galvin was reasonable. The arrest of the respondent was lawful. The fact that at a later date her opinion as to which of the two sections (s.49 and s.50) applied was mistaken did not render the lawful arrest unlawful. A person charged under one section, say s.50, could be prosecuted under s.49 and vice versa. Of course an arrest made mala fides would taint proceedings. However, it was not intended by the legislature that s.49 and s.50 would become so separately and technically interpreted so as to defeat the policy of the legislature. On the basis of the foregoing the case stated could be answered in the affirmative. As a matter of law based on the evidence and on the Garda???s observations of the vehicle prior to the arrest of the respondent, the arrest of the respondent could be regarded as lawful.

Reporter: R.F.

1 Judgment delivered on the 16th day of February, 2011 by Denham J.

2 JUDGMENT DELIVERED BY DENHAM, J. [NEM. DISS.]

3 1. 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 15 ^th February, 2008, [2008] I.E.H.C. 457.

4 2. The facts are set out in the case stated, signed by Judge Gerard J. Haughton on the 10 ^th 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 30 ^th 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".

5 3. Judge Haughton held that he was satisfied of the following facts:-

6 (a) That the respondent attempted to drive the vehicle;

7 (b) That the opinion formed by the garda was bona fide though mistaken.

8 4. 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.

9 5. 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.

10 6. 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?"

11 7. On the 15 ^th February, 2008, the High Court answered the question in the negative.

12 8. 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...