DPP v O'Rourke

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hedigan
• Judgment Date: 02 July 2009
• Neutral Citation: [2009] IEHC 314
• Date: 02 July 2009

DPP v O'Rourke

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

SHAY O'ROURKE

ACCUSED

[2009] IEHC 314

Record No: 370 SS/2009

THE HIGH COURT

CRIMINAL LAW

Road traffic offence

Arrest - Drink driving charge - Incorrect citation of offence by arresting garda - Whether arrest rendered invalid - Whether precise legislative provision must be identified -Whether charge defective - Whether reasonable grounds for opinion - Whether opinion must relate to particular offence - Hobbs v Hurley (Unrep, Costello J, 10/06/80), DPP v Connell [1983] 3 IR 62, DPP v Mooney [1992] 1 IR 548, Mulligan v DPP [2008] IEHC 334 (Unrep, Charleton J, 29/10/2008), DPP v Tyndall [2005] IESC 28 [2005] 1 IR 593 and DPP v Gilmore [1982] ILRM 102 applied; Dumbell v Roberts [1944] All ER 326 considered - Courts (Supplemental Provisions) Act 1961 (No 39), s 52(1) - Road Traffic Act 1961 (No 24), s 49 - Road Traffic Act 1994 (No 7), s 10 - Road Traffic Act 2006 (No 23), ss 4 & 18 - Arrest lawful (2009/370SS - Hedigan J - 2/07/2009) [2009] IEHC 314

Director of Public Prosecutions v O'Rourke

Facts The accused had been stopped at a Garda checkpoint and had given a breath sample under section 4 of the Road Traffic Act, 2006. The accused returned a fail result and was arrested pursuant to s.49 of the Road Traffic Act, 1961 as amended on the opinion of the arresting Garda that the accused had consumed an intoxicant to such an extent that he had improper control of a motor vehicle in a public place. It was submitted by counsel for the accused that the arrest of the accused had been unlawful and that all that occurred subsequently in the Garda Station was therefore inadmissible in evidence. It was submitted that the offence the Garda had purported to arrest the accused with was one not known to the law (as the wording in relevant section was in fact different). In addition it was claimed that although the Garda had used the phrase 'improper control' there had been nothing unusual in the driving of the accused as he approached the checkpoint. A case was then stated for the opinion of the High Court as to whether the arrest of the accused had been lawful.

Held by Hedigan J in answering the case stated as follows. The slightly incorrect description provided by the Garda while giving his evidence at trial was an error of the utmost triviality. There could be no doubt in the mind of the District Judge, or indeed the parties to these proceedings, as to which offence was suspected by the arresting Garda. It was also clear that a Garda was not obliged to be satisfied beyond doubt of the commission of an offence before effecting an arrest. The burden was a light one and did not even rise to the level of prima facie proof of guilt. It was readily conceivable that where a Garda encountered an individual driving a vehicle after midnight on a Friday night, and where that individual gave off a smell of an intoxicant and failed an Alcometer test, that the Garda in question might reasonably suspect that the individual was under the influence as to be incapable of having proper control of their vehicle. The accused was at all material times in lawful custody.

Reporter: R.F.

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2006 S18

ROAD TRAFFIC ACT 2006 S4

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

HOBBS v HURLEY UNREP COSTELLO 10.6.1980 1980/6/1106

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

MULLIGAN v DPP UNREP CHARLETON 29.10.2008 2008/43/9398 2008 IEHC 334

DUMBELL v ROBERTS & ORS 1944 1 AER 326

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

DPP v GILMORE 1981 ILRM 102

1 Mr. Justice Hedigandelivered the 2nd day of July 2009

2 1. This matter comes before the Court by way of a consultative case stated by District Judge John Coughlan, sitting at Wicklow District Court, pursuant to section 52(1) of the Courts Supplemental Provisions Act 1961.

3 2. The opinion of the High Court is sought in relation to the following questions:-

4 (a) Can it be said that the arrest of the accused was lawful on the evidence given by Garda Trevor Conroy as set out in the case stated? and

5 (b) If the answer to the first question is no, should the events which took place subsequent to the arrest be inadmissible in evidence?

I. The Legislative Framework

6 3. Section 49 of the Road Traffic Act 1961, as amended, covers the criminal offence commonly referred to as drink driving. It states as follows:-

7 2 "(1) (a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.

8 (b) In this subsection "intoxicant" includes alcohol and drugs and any combination of drugs or of drugs and alcohol.

9 (2) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 80 milligrammes of alcohol per 100 millilitres of blood.

10 (3) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine.

11 (4) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath.

12 (5) (a) The Minister may, by regulations made by him, vary the concentration of alcohol for the time being standing specified in subsection (2), (3) or (4) of this section, whether generally or in respect of a particular class of person, and the said subsection shall have effect in accordance with any such regulations for the time being in force.

13 (b) A draft of every regulation proposed to be made under this subsection shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House and section 5(2) of this Act shall not apply to a regulation made under this subsection.

14 (6) (a) A person who contravenes subsection (1), (2), (3) or (4) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,500 or to imprisonment for a term not exceeding 6 months or to both.

15 (b) A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under section 50 of this Act.

16 (7) Section 1(1) of the Probation of Offenders Act, 1907, shall not apply to an offence under this section.

17 (8) A member of the Garda Síochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section."

I. Factual and Procedural Background

18 4. At a sitting of the District Court in Wicklow Town on the 19 ^th of May 2008, the accused appeared to face a charge under sections 49(4) and 49(6)(a) of the Road Traffic Act 1961 ('the 1961 Act'), as inserted by section 10 of the Road Traffic Act 1964 and amended by section 18 of the Road Traffic Act 2006. The charge sheet in question specified that the accused had, at 12.28 a.m. on the 24 ^th of November 2007 driven his vehicle in a public place such that within three hours after so driving, the concentration of alcohol on his breath had exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath.

19 5. During the course of the hearing, the prosecuting member of An Garda Síochána, Garda Trevor Conroy, gave evidence that the accused had been stopped at a mandatory alcohol testing checkpoint at Bollarney in Wicklow, a public place. The accused was required to provide a specimen of breath under section 4 of the Road Traffic Act 2006 and was informed that a failure to comply constituted an offence. The accused duly complied and returned a result of 'fail' on the Draeger Alcometer. The accused was asked to step out of his vehicle at which point Garda Conroy noticed the smell of an intoxicant and that the accused's eyes were bloodshot. Garda Conroy formed the opinion that the accused had "consumed an intoxicant to such an extent that he had improper control over a mechanically propelled vehicle in a public place." The accused was arrested pursuant to section 49(8) of the 1961 Act for an offence under section 49(1) of that Act. The accused was cautioned in ordinary language in the usual manner and conveyed to Wicklow Garda Station. Thereafter, the standard procedure was followed in the Garda Station and, having provided a breath sample with a concentration of 42 microgrammes of alcohol per 100 millilitres of breath, the accused was charged under sections 49(4) and 49(6)(a) of the 1961 Act.

20 6. Under cross-examination by counsel for the accused, Garda Conroy explained that he had decided to stop every fifth vehicle that approached the checkpoint. He agreed that there was nothing untoward about the manner in which the accused had been driving his vehicle and that it appeared that the accused was driving...