DPP v Richard Mcdonnell
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 31 January 2014 |
| Neutral Citation | [2014] IEHC 35 |
| Court | High Court |
| Docket Number | Record No. 313 SS/2013 |
| Date | 31 January 2014 |
[2014] IEHC 35
THE HIGH COURT
BETWEEN
AND
ROAD TRAFFIC ACT 1994 S15(1)
ROAD TRAFFIC ACT 1994 S15(2)
ROAD TRAFFIC ACT 2006 S18
ROAD TRAFFIC ACT 1961 S53(1)
ROAD TRAFFIC ACT 1961 S51
ROAD TRAFFIC ACT 1994 S15(1)(B)(I)
ROAD TRAFFIC ACT 1961 S53
MISUSE OF DRUGS ACT 1977 S3(1)
MISUSE OF DRUGS ACT 1977 S23
ROAD TRAFFIC ACT 1961 S107
ROAD TRAFFIC ACT 1994 S15(1)(B)
DPP v ROONEY 1992 2 IR 7
DPP v GAFFNEY 1987 IR 173 1988 ILRM 39
DPP v MCFADDEN 2003 2 IR 105 2003 2 ILRM 201 2003/18/4124
DPP v DUFFY 2000 1 IR 393 1999/7/1635 1999 IEHC 173
ROAD TRAFFIC ACT 1994 S15
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL RIGHTS ART 8
DPP v CASH 2010 1 IR 609 2010 1 ILRM 389 2010/14/3331 2010 IESC 1
DPP v O'DONNELL & ORS 1995 2 IR 294 1995/2/589
DUBLIN POLICE ACT 1842 S29
CHRISTIE v LEACHINSKY 1947 1 AER 567 1947 AC 573
AG, PEOPLE v WHITE 1947 IR 247
DPP, PEOPLE v KENNY 1990 2 IR 110
Criminal law - Constitutional law - Case stated - Lawfulness of search - Medical treatment - Search of clothing - Sample - Opinion - Intoxication - Lawful demand - Road Traffic Act 1994, as amended
Facts: The proceedings arose by way of a consultative case stated and concerned the lawfulness of a search of clothing of the accused carried out in hospital while the accused was receiving medical treatment. The District Judge had sought the Opinion of the High Court as to whether the manner of discovery of white power in the clothes of the accused amounted to an unlawful search and whether the Gardai could rely upon the fact of its discovery and form an opinion that a person summed it as an intoxicant for the purposes of the Road Traffic Act 1994, as amended and make as a consequence a demand for a sample or blood or urine.
Held by O”Malley J. that the Court would answer the questions posed in the affirmative. The argument that no constitutional right was involved could not succeed. It was clear that the Garda did not seek and did not have the consent of the accused. The contents of pockets of clothing removed were protected by the privacy rights of the owner to the same extent as a wallet removed from a person. The evidence required to prove a lawful demand was comparable to that required for a lawful arrest. However, there was no requirement that the opinion be based upon matters themselves that were admissible.
This is a consultative case stated by District Judge William Hamill.
The issues in the case concern, firstly, the lawfulness of a search of the clothing of the accused carried out in hospital while the accused was receiving medical treatment and, secondly, the consequences of any illegality attaching thereto.
The accused appeared before the District Court charged with the following offences: -
i i. On the 18th July, 2010 at Our Lady of Lourdes Hospital Drogheda in said District Court Area of Drogheda, being a person in respect of whom the provisions of Section 15(1) of the Road Traffic Act, 1994 then applied, having been required by Garda Louise Anne McConnell a Member of An Garda Síochána pursuant to section 15(1) of the Road Traffic Act to permit a designated Doctor to take from him a specimen of Blood or at your option a specimen of Urine did REFUSE to permit the doctor to take from you a specimen of your blood contrary to section 15(2) of the Road Traffic Act 1994 as amended by section 18 of the Road traffic Act 2006.
ii ii. On the 18th July, 2010 at Cherrybrook Drive Drogheda Co. Louth a public place in the said District Court Area in Drogheda, did drive a vehicle, registration number 01-LH 7395 in a manner (including speed) which having regard to all of the circumstances of the case (including the condition of the vehicle, the nature, condition and use of such place and the amount of traffic which then actually was or might reasonably be expected then to be therein was dangerous to the public. Contrary to section 53(1) of the Road Traffic Act 1961 as amended by section 51 of the Road Traffic Act 1961 as amended by section 51 of the Road Traffic Act 1968 and as amended by section 18 of the Road Traffic Act 2006;
iii iii. On the 18th July, 2010 at Our Lady of Lourdes Hospital Drogheda in said District Court Area of Drogheda had unlawfully in your possession a controlled drug to wit Cocaine contrary to Section 3 and section 27 of the Misuse of Drugs Act 1977 (as amended by section 6 of the Misuse of Drugs Act 1984).
4. The evidence is summarised in the case stated as follows:
"At a sitting of the Drogheda District Court held on the 24th February, 2012 Richard McDonnell (hereinafter referred to as 'the accused') appeared by way of summons charged with offence(s) under section 15(2) of the Road Traffic Act 1994 for an alleged failure to comply with the requirement of Garda Louise McConnell (herein the prosecutor) made pursuant to 15(1)(b)(i) of the aforementioned Act and an offence under section 53 of the Road Traffic Act 1961 as amended namely dangerous driving and a further charge under section 3(1) of the Misuse of Drugs Act 1977 for possession of a controlled drug namely cocaine…"
The facts proved or admitted or agreed and as found by me were as follows:
(a) On the 18th July, 2010, Garda Louise McConnell (herein the prosecutor) received a report of a single vehicle collision at Marley's Lane Drogheda a public place. On arrival at the scene the prosecutor observed motor vehicle registration 01 LH 7385 crashed on its roof with the accused injured and trapped inside the vehicle.
(b) The prosecutor contacted emergency services and both fire and ambulance personnel subsequently attended at the scene of the accident. The accused was stabilised and treated at the scene before being transported by ambulance to Our Lady of Lourdes Hospital Accident and Emergency Department where he came under the care of Dr. Fawad the A/E registrar on duty. The prosecutor travelled to the hospital with the accused in the ambulance.
(c) The prosecutor confirmed that a registration check had been carried out on the vehicle and the name "Richard McDonnell" with an address was provided. The prosecutor confirmed that subsequent to his arrival at hospital the accused was coherent and responded to the name "Richard McDonnell" from conversations with the medical staff treating him at the hospital.
(d) The prosecutor stated in her direct evidence that in an effort to confirm the identity of the accused she searched the accused's clothing which had been cut off him by the medical staff and placed on a table or locker beside his bed in the Accident & Emergency Department of the Lourdes Hospital, Drogheda.
(e) The prosecutor stated in evidence that as a result of that search she found two bags of what she described in her statement as suspicious white powder in his jeans and as a direct result of this she formed her opinion that the accused was under the influence of an intoxicant.
(f) Subsequently having spoken to Dr. Fawad, he then permitted the prosecutor to make a demand of the accused under section 15 of the Road Traffic Act 1994 for the accused to provide a specimen of blood or at his option a specimen of urine in accordance with section 15(1)(b) of the Road Traffic Act 1994.
(g) The prosecutor gave evidence that a demand was made of the accused and the penalties were outlined to him under section 15(2) of the Road Traffic Act 1994 and having made that requirement the accused refused to provide a sample. The accused was later charged by way of summonses.
Counsel for the accused Mr Hennessy cross-examined the prosecutor with particular emphasis on the search of the accused's clothing and whether there was any lawful authority for such a search. It was put to the prosecutor that she had no lawful authority to search the accused's clothing in circumstances where the accused had not been detained, arrested or made the subject of a demand under section 23 of the Misuse of Drugs Act.
Under cross-examination the prosecutor confirmed that "in her mind" she was relying on section 107 of the Road Traffic Act 1961 as the lawful basis of her search whilst accepting she did not specifically invoke the section or inform the accused of same.
Counsel for the accused put it to the prosecutor that there was no power of search under section 107 of the Road Traffic Act 1961 and even if there was the prosecutor would be required to formally invoke the provision as it was a penal statute which carried penalties.
Under further cross examination the prosecutor confirmed that she did not seek the permission of the accused nor did he consent to her carrying out the search of his clothing.
The prosecutor confirmed in her evidence that as a result of finding two bags of white powder in the defendant's jeans she formed the opinion that the accused was driving under the influence of an intoxicant and having formed that opinion the prosecutor subsequently made a demand of the accused to provide a specimen of blood or at his option a specimen of his urine pursuant to section 15(1) of the Road Traffic Act 1994. The accused failed to comply with the requirement and was subsequently prosecuted.
Evidence was heard from two civilian witnesses in respect of the dangerous driving charge and it was accepted the accused has a case to answer in respect of section 53 of the Road Traffic Act 1961 as amended. This completed the evidence of the prosecution."
5. The case was then adjourned for the preparation of written and oral submissions on...
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