Madigan v Devally

CourtSupreme Court
JudgeLynch, J.
Judgment Date28 January 1999
Neutral Citation[1999] IESC 24
Date28 January 1999

[1999] IESC 24


Hamilton, C.J.

Barrington, J.

Lynch, J.








Criminal — Certiorari - Drunk driving — Jurisdiction - Whether arrest valid — Whether garda had necessary bona fide suspicion entitling him to arrest applicant — Whether applicant aware of reason for arrest - Procedures in garda station — Blood specimen demand — Compliance by applicant — Whether statutory source of arrest misquoted by arresting garda — Whether disadvantage or injustice caused to applicant — Whether Circuit Court judge entitled to come to conclusions he did on evidence — Whether common law right to arrest for drunk driving — Whether open to judge to disregard mistaken reference to legislation — Road Traffic Act 1961 (No 24),ss.49(2), 49(4), 49(6), (8) — Road Traffic Act 1968 (No 25), s.29 — Road Traffic (Amendment) Act 1978 (No 19), ss.5, 10, 13(1)(b) — Road Traffic Act 1994 (No 25), ss. 1(2), 4, 10, 13(1)

While the Circuit Court judge was entitled to conclude on the evidence he heard that the applicant was aware of his liability to be arrested and of his obligation under the Road Traffic Acts to provide a specimen if arrested, he was also entitled to conclude that the arresting garda was aware of his power to arrest under those Acts and of his power to require the provisions of a specimen under those same Acts and intended to exercise those powers. The powers of arrest in relation to mechanically propelled vehicles were given by the Road Traffic Acts and not by common law. It was within the jurisdiction of the judge to find that there had been a lawful arrest under the powers conferred by those Acts and to disregard the garda's mistaken reference to the 1978 Act instead of the 1994 Act on the basis that if the judge were to dismiss the prosecution because of that error his decision would be "indefensible for being in the teeth of plain reason and common sense". The Supreme Court so held in allowing the appeal of the DPP and dismissing the applicant's judicial review proceedings.


JUDGMENT delivered the 28th day of January, 1999, by Lynch, J. [NEM DISS]


This is an appeal by the Director of Public Prosecutions (hereafter the DPP) against a judgment and order of the High Court (Kinlen J.) delivered and made on the 2nd of April 1998, whereby the learned High Court judge quashed an order of the Dublin Circuit Court made on the 6th of March 1997 which in turn had affirmed a conviction of the Applicant by the Dublin Metropolitan District Court on the 18th May 1995 for the offence of driving a mechanicallypropelled vehicle on the 29th of December 1994 with excess alcohol in his blood contrary to section 49 (2) of the Road Traffic Act 1961as inserted by section 10 of the Road Traffic Act 1994.

The Factual Background

The evidence before the High Court as to the proceedings in the Circuit Court relevant to the issues in the High Court and in this court is to be found in paragraphs 5 and 6 of an affidavit sworn by the applicant's solicitor Sean Costello, on the 20th of March 1997: in paragraphs 2 and 3 of an affidavit sworn by the arresting Garda, Paul Fanning, on the 1 lth July 1997: a replying affidavit sworn by Mr. Costello on the 25th of July 1997 and in paragraph 3 of an affidavit sworn on the 3rd October 1997 by Patrick Geraghty of the Chief State Solicitor's Office. The applicant did not swear an affidavit relevant to the issues in these proceedings, nor did he give any evidence in the Circuit Court relevant to the issues in the High Court and in this court.


Paragraphs 5 and 6 of Mr. Costello's affidavit of the 20th of March 1997 are as follows:-

"5. On the said date the second named respondent (the DPP) the prosecutor mentioned in the said summons was represented by a Mr. Geraghty, a solicitor in the office of the Chief State Solicitor.Garda Paul Fanning gave evidence that on the 29th of December 1994 at about 5pm or a little before 5pm he was the driver of a patrol car attached to Finglas Garda Station and he observed a motor vehicle registration number and letters OZG 672 being driven in an erratic manner although (recte along) the North Road. He said that he signalled the car to stop, put on flashing lights and the car pulled in behind some roadworks. Garda Fanning stated that he spoke to the driver and got a bad smell of drink from the driver. The driver stumbled as he got out of his vehicle. Garda Fanning formed the opinion that the driver (was?) incapable of having proper control of a mechanically propelled vehicle in a public place due to the consumption of an intoxicant. At 5pm he arrested the driver under section 49(6) of the Road Traffic Act 1994for an offence under subsections 1, 2 and 3 of section 49 of that Act. The Garda then identified the driver as being the applicant, Rory Madigan. The Garda then stated that he conveyed the applicant to Finglas Garda Station and Doctor Williams was contacted at 6.05 pm (presumably 5.05 pm). At 5.49 pm Dr. Williams arrived and was introduced to the Applicant as a designated registered medical practitioner. At 5.49 pm Garda Fanning made a requirement under the terms of section 13 (l)(b)of the Road Traffic Act 1978of the applicant to admit (presumably permit) the doctor to take from him a sample of his blood or at his option provide the doctor with a sample of his urine. The consequence of him providing such requirement was explained to the applicant. The applicant furnished a sample of blood to the doctor at 5.51 pm. The provisions of section 18 of the 1994 Act were complied with and the applicant retained one of his samples. Garda Fanning then stated that he subsequently received a certificate from the Medical Bureau of Road Safety indicating a concentration of 255 milligrammes of alcohol per 100 millilitres of blood in respect of the said sample. Garda Fanning was then asked by the prosecuting solicitor as to what section he had arrested the applicant under and Garda Fanning stated that the applicant was arrested under section 49(6) of the Road Traffic Act 1994."


The prosecuting solicitor then asked Garda Fanning whether he explained to the accused what he arrested him for and Garda Fanning confirmed that he explained to the applicant that he was being arrested for drunken driving and this explanation took place at Finglas Garda Station. The State then closed his case.


(6) Counsel for the applicant then applied to the first named Respondent for a direction on two grounds. Firstly, that the arrest was unlawful as section 49(6) of the Road Traffic Act 1994did not give to Garda Fanning the power to arrest and consequently the action taken by Garda Fanning on foot of the unlawful arrest was inadmissible. Secondly, counsel submitted that the requirement of the applicant to permit Dr. Williams to take from him a sample of blood was not lawfully made as the requirement was stated by Garda Fanning under section 31(b) - recte section 13(l)(b) - of the Road Traffic Act 1978which said act had been repealed at the time. In reply to these submissions Mr. Geraghty on behalf of the second named Respondent statedthat:


"I think he has me on the second point."


He then went on to submit that the arrest had been a lawful arrest and that it must have been quite clear to the applicant as to why he was being arrested."


Paragraphs 3 and 4 of Garda Farming's affidavit are as follows:-

"(3) I beg to refer in particular to the affidavit of Sean Costeilo filed herein and sworn on the 20th day of March 1997. I say that at paragraph 5 of the said affidavit Mr. Costeilo fails to fully set out the evidence I gave to the first named Respondent regarding the arrest of the applicant. I gave evidence before the first named Respondent that the applicant herein was arrested under section 49(6) of the Road Traffic Act 1961.I informed the first named Respondent that at the place of his arrest I informed the applicant, in layman's terms that he was arrested for what was known as drink driving. This was before I conveyed the applicant back to Finglas Garda Station.

(4) At the end of paragraph 5 of the affidavit of Mr. Costeilo it is suggested that the accused was informed at Finglas Garda Station of the reasons for his arrest. The accused was again informed once he arrived at Finglas Garda Station of the reasons for his arrest but he had been informed on the roadside and this evidence had been given to the first named Respondent."


Paragraph 2 of the replying affidavit of Mr. Costeilo sworn on the 25th of July 1997 is as follows:-

"(2) I say that in paragraph 3 of his affidavit Garda Fanning seeks to correct the statements in my said original affidavit in that he:-"

(a) States that he arrested Mr. Madigan under s.49(6) of the Road Traffic Act 1961(as opposed to the Road Traffic Act 1994).

(b) Asserts that he informed Mr. Madigan at the time of the arrest of the reason for the arrest in layman's terms.


I can only reiterate that it is my note of the proceedings and this note accords with counsel's note that :-


(a) The arrest was made under s.49(6) of the Road Traffic Act 1994.


(b) The Garda did not inform Mr. Madigan at the time of the arrest of the reason for the arrest.


If necessary I seek leave of this Honourable Court to seek the judge's note in respect of the said proceedings in order to establish which of the recollections is accurate.


However, I am advised by counsel and believe that this may not be necessary in that even if this Honourable Court accepted Garda Fanning's version of the arrest under section 49(6) of the 1961 Act this subsection does not give a power of arrest and consequently the consequences already complained of by the applicant follow from such anarrest."...

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