DPP v Prezemyslaw Czyzak
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 07 March 2014 |
| Neutral Citation | [2014] IEHC 102 |
| Court | High Court |
| Date | 07 March 2014 |
[2014] IEHC 102
THE HIGH COURT
AND
SUMMARY JUDGMENT ACT 1857 S2
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51
ROAD TRAFFIC ACT 2010 S5
ROAD TRAFFIC ACT 2010 PART 2
ROAD TRAFFIC ACT 2010 S5(4)(B)
ROAD TRAFFIC ACT 2010 S5(5)
ROAD TRAFFIC ACT 2010 S13
ROAD TRAFFIC ACT 2010 S4
DPP v MOONEY 1992 1 IR 548 1993 ILRM 214 1992/5/1581
ROAD TRAFFIC ACT 1961 S49(1)
ROAD TRAFFIC ACT 1961 S49(2)
ROAD TRAFFIC ACT 1961 S49(3)
CHRISTIE v LEACHINSKY 1947 1 AER 567 1947 AC 573
DPP v CONNELL 1998 3 IR 62 2000/20/7776
DPP v MCCORMACK 1999 4 IR 158 2000 1 ILRM 241 1999 IEHC 13
DPP v MOLONEY UNREP FINNEGAN 20.12.2001 2001/8/2055 2001 IEHC 178
ROAD TRAFFIC ACT 1961 S49
ROAD TRAFFIC ACT 1961 S50
GELBERG v MILLER 1961 1 AER 291 1961 1 WLR 153
DPP v GRAY UNREP O'HANLON 8.5.1987 1987/2/463
PROES v REVENUE COMMISSIONERS 1998 4 IR 174 1997 ITR 407 1998/36/13677
Criminal law - Criminal procedure - Evidence - Drink-driving - Validity-Understanding reasons for arrest - Discretion of Court - Invalid arrest - Road Traffic Act 2010
Facts: The Court considered a case stated from the District Court as to the validity of an arrest under s. 5 Road Traffic Act 2010 for drink-driving. The question was posed by the District Court as to circumstances where the accused did not understand the reason for his arrest as to whether it was within his discretion to hold that an arrest was invalid (question 1) and if so, whether the Court had discretion to dismiss both charges in the circumstances (question 2). On the facts of the case, no evidence was before the District Judge as to whether the respondent had failed to understand the reason for the arrest.
Held by Kearns P. that if the accused did not know the reason for his arrest, it was within the discretion of the judge to hold that the arrest was invalid. However, there was no evidence before the court that the respondent did not understand the reasons for his arrest and the answer to the second question posed had to be answered in the negative.
JUDGMENT of Kearns P. delivered on the 7th day of March, 2014
This matter comes before the Court by way of case stated by Judge Ann Watkin of the District Court pursuant to s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, and the Rules of the District Court.
It concerns the validity of an arrest under s. 5 of the Road Traffic Act, 2010. The facts may be summarised as follows:-
The accused appeared before the learned District Judge at the Criminal Courts of Justice, Dublin 8 on the 18 th June, 2013, on foot of a charge sheet alleging that on the 4 th April, 2013, at Ballymun in the City of Dublin, while being a specified person under Part 2 of the Road Traffic Act 2010, he was in charge of a mechanically propelled vehicle with the intent to attempt to drive the said vehicle (but not driving or attempting to drive) while there was present in his body a quantity of alcohol such that, within three hours after being so in charge, the concentration of alcohol in his breath exceeded a concentration of 9 micrograms of alcohol per 100 millilitres of breath, to wit, 82 micrograms per 100 millilitres of breath, contrary to s. 5(4)(b) and (5) of the Road Traffic Act 2010. The accused was also charged on a separate charge sheet with a separate offence under s. 13 of the Road Traffic Act, 2010, which is not the subject matter of the present case stated.
The facts stated to have been "proved or admitted or agreed and as found by the District Judge" are as follows:-
"Garda Brendan Eddery gave evidence that on the 4 th April, 2013, he was on patrol with a colleague when shortly before midnight they responded to a call of a suspected drink-driver at Harristown in Ballymun. On proceeding to that location and on approaching the motor vehicle which had been identified to him, Garda Eddery observed a male whom he now knew to be the accused, who appeared to be asleep in the driver's seat. The engine of the car was running, the car keys were in the ignition and the lights of the car were on. Garda Eddery knocked on the car window but failed to initially rouse the driver. He then opened the car door to find the accused with a smell of alcohol coming from his person. The garda said that when he roused Mr. Czyzak his eyes were glazed and his speech was slurred. Garda Eddery gave evidence that he asked the accused where he was going and he replied: 'I'm heading home to Finglas.' Garda Eddery said he formed his opinion that Mr. Czyzak was under the influence of an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle in a public place. He further stated he had formed the opinion that the accused was in charge of the car and had 'intent' to drive. He then arrested the accused under s. 5 of the Act of 2010 and cautioned him in plain English that he was being arrested for being 'drunk in charge' of a vehicle. The accused replied by saying 'you're joking, that's ridiculous'. Garda Eddery then told the accused he was being arrested for being drunk behind the wheel of the car while the vehicle was running. He was thereafter conveyed to Ballymun Garda Station where, following the usual formalities, he was required to furnish two specimens of his breath. Following receipt of the two statements produced by the apparatus, the same were supplied to the accused with a request that he sign same. The accused declined to do so."
Following the examination of this witness by the prosecution solicitor, the learned District Judge states as follows:-
"I indicated that my view is that the offences created by s. 5 of the Road Traffic Act, 2010, often referred to as 'drunk in charge' are not offences with which the public would be familiar when compared with the more well known and commonly prosecuted offences created by s. 4 of the Act of 2010, often referred to as drink-driving. Therefore, I indicated that I was of the view that when he was arresting the accused, Garda Eddery should have told the accused that he was being arrested for being drunk in charge 'with intent to drive' as being drunk in charge does not constitute an offence as such. I said that I was of the view that Garda Eddery had not given a sufficient communication of the reason for the arrest to allow the accused to understand why he was being arrested. Not only do the public frequently misunderstand the nature of the 'drunk in charge' offence, but many lawyers, gardaí and even judges can make the same mistake, in not appreciating that it is the intention to drive that is key to the formulation of the offence. Being drunk whilst in charge of a vehicle is not an offence unless one has an intention to drive it. The language used by the Garda misinformed the accused as to the reason for his arrest, because Garda Eddery specifically told the accused that he was being arrested for being drunk behind the wheel of the car whilst the engine of the car was running, I found as a fact that just because the accused told the Garda that he was 'heading home' did not indicate that he understood the reason for his arrest. I took the view and found as a fact that the accused, on the evidence before me, did not understand the reason for his arrest. This finding was reinforced by the evidence that when the accused was told by Garda Eddery that he was being arrested for being 'drunk in charge' of a vehicle, he responded by saying 'you're joking, that's ridiculous'. However, I was satisfied that the accused understood that he was being arrested for something to do with drinking and driving."
Ms. Staunton, for the prosecution, submitted that Garda Eddery had given evidence of his opinion that the accused had intent to drive and had given evidence that the accused had told him he was intending to drive home. She also submitted that the Garda had told the accused he was arresting him for being 'drunk in charge' and that, further, it must have been obvious to the accused what he was being arrested for, given the surrounding circumstances, keys in the ignition, engine running and lights on. I disagreed with these submissions for the reasons set out in detail above and found that the circumstances were not such as to make it obvious to the accused why he was being arrested. Having so found, I therefore held the arrest to be unlawful. I therefore dismissed both charges. I held that the arrest was not a valid arrest because I was of the view that the Garda had not given a sufficient communication of the reason for the arrest. I then dismissed both charges."
Following her determination, the learned District Judge, at the request of the prosecution, furnished a case stated to this Court seeking its opinion on the following questions:-
a "(a) In circumstances where the accused did not understand the reason for his arrest, was it within my discretion to hold that the arrest was invalid for the reason set out above?
(b) If the answer to bracket (a) above is 'yes', did I then have discretion to dismiss both charges against the accused in the particular circumstances of this case?"
On behalf of the respondent, it was submitted that, in reality, the prosecution were seeking to appeal and displace findings of fact arrived at by the District Court Judge which were supported by evidence. Findings of primary fact by the trial judge should not be disturbed unless there is no evidence to support them. The rights available to the prosecutor were confined to those cases where it was alleged...
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