O'Mahony v Ballagh

• Jurisdiction: Ireland
• Judge: Mr Justice Aindrias Ó Caoimh
• Judgment Date: 23 March 2001
• Neutral Citation: [2001] IEHC 48
• Court: High Court
• Date: 23 March 2001

[2001] IEHC 48

THE HIGH COURT

No. 142JR/2000

O'MAHONY v. BALLAGH & DPP

JUDICIAL REVIEW

BETWEEN

AIDAN O'MAHONY

APPLICANT

AND

JUDGE THOMAS BALLAGH AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S10

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1994 S12(1)(c)

BRENNAN V DPP 1996 1 ILRM 267

TRIMBOLE, STATE V GOV OF MOUNTJOY PRISON 1985 IR 550

DPP V KENNY 1990 ILRM 569

COUGHLAN V PATTWELL 1993 1 IR 31

DPP V MOONEY 1992 1 IR 548

DPP V WALSH 1980 IR 294

CHRISTIE V LEACHINSKY 1947 AC 573

DPP V DALY UNREP HAMILTON 3.3.1986

ROAD TRAFFIC ACT 1994 S12

PEOPLE V KEOGH 1985 IR 444

DPP V O'SHEA 1996 1 IR 556

HEGARTY V DPP UNREP KELLY 29.11.1996 1997/4/1175

WALSH, STATE V MAGUIRE 1979 IR 372

MADIGAN V DEVALLY UNREP LYNCH 28.1.1999 1999/16/5053 1999 2 ILRM 141

Synopsis:

CRIMINAL LAW

Road traffic offences

Judicial review - Certiorari - Powers of arrest - District Court - Fair procedures - Natural and constitutional justice - Whether applicant properly detained by An Garda Síochána - Whether District Judge acted in excess of jurisdiction - Summary Jurisdiction Act, 1857 section 2 as amended by Courts (Supplemental Provisions) Act, 1962 section 51 - Road Traffic Act, 1961 section 49 - Road Traffic Act, 1994 sections 10, 12(1)(c) (2000/142JR - O Caoimh J - 23/3/01)

O'Mahony v Ballagh and DPP

The applicant whilst driving had been detained by a member of An Garda Síochána. The applicant was subsequently arrested and was found to have been driving in excess of the alcohol limit. The applicant was convicted in the District Court and brought proceedings claiming that the manner of his arrest had been unlawful and that his conviction was unsafe. Ó Caoimh J held that the District Court judge had acted within jurisdiction and the relief sought by the applicant would be refused.

1 Mr Justice Aindrias Ó Caoimh delivered on the 23rd day of March 2001

2 By order of the 3rd of March 2000 made by Lavan J. the Applicant was given leave to seek the relief of Certiorari to quash a conviction and Order made by the first named Respondent on the 26th of January 2000 for the offence of drink driving contrary to Section 49 of the Road Traffic Act, 1961as inserted by Section 10 of the Road Traffic Act, 1994on the grounds

3 1. The learned first named Respondent failed to comply with the principles of natural and constitutional justice by failing to address legal submissions made by Counsel for the Applicant at the close of the case for the Prosecution and further the close of the case for the Defence.

4 2. The learned first named Respondent failed to comply with the constitutional and legal function of administering justice by failing to enquire for all the purposes of the proceedings then before him into the alleged unlawful detention of the Applicant herein.

5 3. The learned first named Respondent acted in excess of jurisdiction by failing without just cause to exclude evidence obtained in breach of the Applicant's constitutional rights.

6 4. The learned first named Respondent acted in excess of jurisdiction by convicting the Applicant in the face of clear submissions made by a member of the Garda Síochána that the Applicant herein had in breach of his constitutional rights been deliberately and consciously detained contrary to law and

7 5. The learned first named Respondent acted contrary to natural and constitutional justice by failing to conduct the trial of the Applicant herein in due course of law and contrary to basic fairness of procedures whereby the rights of the Applicant herein were violated

8 The application is grounded upon the affidavit of the Applicant himself who deposes that at the hearing of the complaint against him, Detective Garda L.J. Kennedy gave evidence that, whilst stopped at the traffic lights at the Airmotive Factory on the Naas Dual Carriageway he saw a vehicle being driven through the said lights and the left tail light of the vehicle was not lit. The Garda said he kept the vehicle in his view, caught up with it and noticed it was being driven in an erratic manner from one side of the road to the other at various speeds from 30–90 m.p.h.. Eventually, on the outskirts of Naas the car slowed down and did a U-turn when it seemed to stall. Garda Kennedy jumped out, opened the door of the car and took the keys from the ignition. The Garda said that he didn't want the driver to drive again because of his demeanour and he looked heavily under the influence of alcohol. The Defendant, he said stumbled out of the car and mumbled something which he could not understand. At that stage, Garda Kennedy said he identified himself as a member of the Garda and informed the Defendant he was waiting for Garda assistance. He said he was there for a few minutes when Sergeant Gerald M. Goode arrived. He said he then informed the Sergeant of the position.

9 The Applicant says that Garda Kennedy was not able to say what assistance he expected to obtain from his colleagues when they arrived nor why he did not identify himself as a Garda before he opened the Defendant's car door and seized the car keys from the ignition. Garda Kennedy admitted the Defendant was not free to go, that he did not tell the Defendant why he was being detained and did not formally arrest him.

10 The Applicant states that Sergeant Goode then gave evidence to the effect that at 12.40a.m. on the date of the offence alleged he was on duty at Dublin Road, Naas and observed two vehicles parked at the place of the offence. He said he saw two persons, one lying against the bonnet of a red car and the other person using a mobile phone. The latter identified himself as Detective Garda Kennedy who informed him of what had happened. Sergeant Goode said he then spoke to the Defendant who admitted driving, and, having got a strong smell of intoxicating liquor from his breath, he formed the opinion that the Defendant was committing an offence under Section 49 and arrested him for drunk driving. He was taken to Naas Garda Station where he provided a blood specimen to the designated doctor which, when analysed showed a reading of 221mg of alcohol per 100ml of blood.

11 Counsel for the Defendant in the District Court made the submission to the Respondent judge that Garda Kennedy in his evidence gave no legal justification for the detention of the Defendant which in the circumstances amounted to the arrest of the Defendant, that he did not invoke the operative section of any statute as he was required to do by law and, therefore the detention and arrest of the Defendant were a breach of the constitutional right to liberty and contrary to law. Counsel submitted that from the time Garda Kennedy stopped the Defendant, took the keys of his car and awaited the arrival of assistance, the Defendant was in unlawful detention. Counsel stated that the drink driving code had its own specific regulatory procedures which were not followed by Garda Kennedy and insofar as Sergeant Goode could have sought to validate Garda Kennedy's actions he failed to do so. It is submitted that Sergeant Goode's arrest of the Defendant was bad and contrary to law and all actions subsequently taken and evidence obtained by the Sergeant were therefore inadmissible in law. Counsel referred the Respondent judge to case law in support of his submissions. It is then stated that the Respondent judge replied in reference to the Defendant "He was drunk, wasn't he" on the occasion and held the actions of Garda Kennedy and Sergeant Kennedy to be good and proper in the circumstances. It is stated that the Respondent declined to deal further with the submissions of Counsel and in particular failed to inquire into the alleged failure of the Gardaí to vindicate the constitutional rights of the Applicant to his liberty. It is deposed further by the Applicant that the Respondent judge concluded his remarks by stating that a civil remedy was available to the Defendant (the Applicant herein) if he felt he was falsely imprisoned on the occasion. Counsel responded that his instructions and submissions before the Court did not imply any such intention on the Defendant's part, that the issue in his submission was not whether the Defendant was drunk or otherwise and that his submission stood on its own individual merits for the purpose of the proceedings before the Court. The Defendant in the District Court then gave evidence and was cross examined. In cross examination he accepted that the period of his detention by Garda Kennedy might not have been more than a few minutes. It is stated further that Counsel repeated his submissions to the first named Respondent and the submission was refused. It is recorded that the Applicant was convicted and having had one previous like conviction was disqualified for a period of forty-eight months and fined £800 with 90 days to pay or 15 days in default. The date of disqualification was postponed to the 1st of April 2000.

12 It appears that, following the conviction, a request was made in writing to the first Respondent to state and sign a case to the opinion of the High Court pursuant to the provisions of Section 2 of the Summary Jurisdiction Act, 1857 as amended and extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961. It appears that the Respondent judge refused on the basis that he was not obliged to do so unless the request was made at the behest of the Prosecution. It appears that the Respondent judge indicated that it was open to the Applicant to seek a Judicial Review of his decision.

13 On behalf of the Director of Public Prosecutions opposition has been filed and a Statement of Opposition has been verified by an affidavit of Superintendent John Murphy. He has not taken issue with most of the relevant averments in the affidavit of the...