DPP v Stewart

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 06 April 2001
• Neutral Citation: [2001] IEHC 62
• Court: High Court
• Docket Number: [2000 No. 1836 SS]
• Date: 06 April 2001

DPP v. STEWART

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 19611961 TO 1986

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

COMPLAINANT

AND

JAMIE STEWART

DEFENDANT

[2001] IEHC 62

1836 SS/2000

THE HIGH COURT

Synopsis:

Road Traffic

Road traffic offence; arrest; case stated; defendant motorcyclist was detained for the purposes of search for possession of a controlled drug; within very short period of time Garda got a smell of intoxicating liquor from defendant; defendant stepped outside Garda car and refused to provide breath specimen; whether defendant could be considered at the time of his arrest under s.12(3) of the Road Traffic Act, 1994, to be in charge of a mechanically propelled vehicle as defendant was already at that specific point in time detained under s.23(1) of the Misuse of Drugs Act, 1977.

Held: Defendant was in charge of motorcycle.

DPP v. Stewart - High Court: Kearns J. - 06/04/2001 - [2001] 3 IR 103

The defendant was arrested and faced a number of road traffic charges. A case stated was put before the High Court as to whether the defendant had been arrested in accordance with the relevant legislation. Mr. Justice Kearns was satisfied that proper procedures had been followed, the defendant had been arrested in accordance with the relevant legislation and thus answered the case stated.

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC ACT 1994 S13

MISUSE OF DRUGS ACT 1977 S23

ROAD TRAFFIC ACT 1994 S12(3)

ROAD TRAFFIC ACT 1994 S13(1)

MISUSE OF DRUGS ACT 1977 S23(1)

DPP V BREHENY UNREP SUPREME 2.3.1993 1993/2/255

DPP V JOYCE 1985 ILRM 206

DPP V FORBES 1994 2 IR 542

WOODAGE V JONES 1974 60 CAR 26

DPP V WATKINS 1989 1 AER 1126

HAINES V ROBERTS 1953 1 AER 344

DPP V CORMACK UNREP SUPREME 22.1.1999

ROAD TRAFFIC ACT 1961 S49

1 Mr. Justice Kearns delivered the 6th day of April, 2001.

2 This matter comes before the Court by way of case stated by Judge James O'Connor of the District Court in Bandon in the County of Cork pursuant to the Provisions of Section 52 of the Courts (Supplemental Provisions) Act, 1961– 1986.

3 A number of summonses against the Defendant were before the District Judge on the 16th day of June, 2000 arising out of road traffic offences alleged to have occurred on the 4th of November, 1999 in a public place at Ballylangley, Bandon, County Cork. The offences arose out of the user by the Defendant of a motorbike at the said location and those summonses which related to no insurance, failing to produce insurance and failing to have a driving licence, to produce same, or to display tax were admitted by the Defendant. There were two other summonses, firstly, in relation to the alleged failure on the part of the Defendant to provide a specimen of breath when requested to do so by Garda Nyhan contrary to Section 12 of the Road Traffic Act 1994, and a further summons alleging that the Defendant, contrary to Section 13 of the same Act, refused to permit a designated doctor to take from him either a specimen of blood or urine. These summonses were contested.

4 The facts may be briefly stated. At about 4.05 p.m. on the 4th of November, 1999 Garda Nyhan was operating a Garda checkpoint at Ballylangley in Bandon when he saw a motor cycle approach the checkpoint. He observed that the motorbike was endeavouring to turn away from the checkpoint but it did, however, respond to a command to stop. The motorbike was driven by the Defendant and had a pillion passenger. The Defendant turned off the ignition. Garda Nyhan clearly felt that the behaviour of the motorbike before stopping was suspicious and indicated to the Defendant that he proposed to search him under Section 23 of the Misuse of Drugs Act 1977. A similar request was made of the pillion passenger, but both refused to be searched at the roadside. The Defendant was wearing a full face helmet. Both the Defendant and the pillion passenger were then required to go to Bandon Garda Station under the powers conferred by Section 23 of the Misuse of Drugs Act 1977and both got into the patrol car. It is not clear from the case stated whether or not the patrol car moved off. However, within a very short period of time, certainly no more than a few minutes of the initial stopping at the checkpoint, Grad Nyhan got a smell of intoxicating liquor from the Defendant and asked him to take off his helmet which the Defendant refused to do. Garda Nyhan then asked the Defendant to step outside the car and to provide a specimen of his breath. The Defendant having stepped outside the car refused to comply on more than one occasion. The Defendant was then arrested under Section 12(3) of the Road Traffic Act 1994and was conveyed to Bandon Garda Station. This arrest is stated to have taken place at Ballylangley in a public place, although, as already mentioned, it is not clear whether the location was different from the Garda checkpoint. Thereafter in the Garda Station a demand was made pursuant to Section 13(1) of the Road Traffic Act 1994requiring the provision of a blood or urine sample. Garda Nyhan informed the Court that the Defendant refused also to comply with this request.

5 The Defendant was also searched pursuant to Section 23 of the Misuse of Drugs Act 1977, but I should at once make clear that no point is being raised in the instant case that any issue of "an arrest upon an arrest" is being advanced on behalf of the Defendant.

6 The relevance of the Defendant's detention in the Garda car is relied upon by the Defendant to argue only that, at the time Garda Nyhan formed his opinion and made the request under Section 12 of the 1994 Act, the Defendant was at that time no longer "in charge" of a mechanically propelled vehicle as required by Section 12 of the Road Traffic Act 1994.

7 While the opinion of the High Court was sought on three questions, both sides in argument before this Court agreed that in reality only one question arose as follows:-

"Can the Defendant be considered at the time of his arrest under Section 12(3) of the Road Traffic Act 1994to be in charge of a mechanically propelled vehicle as required by Section 12(1) of the Road Traffic Act 1994as the Defendant was then at that specific point and time under detention in relation to Section 23(1) of the Misuse of Drugs Act 1977?"

8 Section 12 of the Road Traffic Act 1994provides as follows:-

9 (1) "Whenever a member of the Garda Siochana is of opinion that a person in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor, he may require the person-

10 (a) To provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his breath and may indicate the manner in which he is to comply with requirements; and;...

11 (2) A person who refuses or fails to comply forthwith with a requirement under this Section, or to comply forthwith with such a requirement in a manner indicated by a member of the Garda Siochana, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.00 or to imprisonment for a term not exceeding six months or to both.

12 (3) A member of the Garda Siochana may arrest without warrant a person who in a member's opinion is committing or has committed an offence under this Section."

13 Mr. O'Carroll on behalf of the Defendant relies essentially on two cases in support of his contention that, on the particular facts of this case, the Defendants could not be regarded as having been in charge of the motorbike in the manner required by the Section.

14 In DPP -v- Breheny (unreported decision of the Supreme Court 2nd March, 1993) Egan J, in delivering the Judgment of the Court, analysed the proofs arising from Section 12(1) as follows (pp 5 – 6):-

"The wording of Section 12(1) sets out the necessary proofs:-"

(a) That a person is in charge of a mechanically propelled vehicle

(b) That he is so in charge in a public place

(c) The opinion of a Garda that such a person has consumed intoxicating liquor"

15 Later he stated:-

"Proof would not be required as a matter of fact that the person had consumed intoxicating liquor. An opinion of the Garda to this effect and provided it was genuinely and reasonably held would suffice."

16 The only offence under the Section is when a person refuses or fails to comply with the requirement of the Garda where all the ingredients of subsection (1) are present."

17 Mr. O'Carroll submits that "all the ingredients" were not present in the instant case, or, at least were not present at the same time. At the moment the Garda formed his opinion, he says, the Defendant was no longer in charge of his motorbike. In fact the Defendant was no longer in control of anything because he himself was then under the control of the Gardai who had placed him in the Garda car for the purpose of taking him to Bandon Garda Station. Accordingly, he submits, the nexus under the Act was broken.

18 He relied on the following passage in DPP -v- Joyce (1985) ILRM 206 where Hederman J, in delivering the Judgment of the Court stated (at p. 209):-

"During the hearing it was accepted by Counsel on behalf of the Director of Public Prosecutions that a request by a member of the Garda Siochana to require any person to provide a specimen of his breath must be in a public place and that person must be then in charge of a mechanically propelled vehicle in such public place."

19 In the instant case the members of the Gardai who were on patrol entered a yard for the purpose of examining a motor vehicle and while examining the car, were approached by the Defendant....