O'Mahony v Ballagh

JurisdictionIreland
CourtSupreme Court
JudgeMr Justice Francis D Murphy
Judgment Date13 December 2001
Neutral Citation[2001] IESC 99
Date13 December 2001
Docket Number[S.C. No. 105 of
O'MAHONY v. BALLAGH & DPP
Aidan O'Mahony
applicant/Appellant

AND

Judge Thomas Ballagh and The Director of Public Prosecutions
Respondents

[2001] IESC 99

Murphy J

Hardiman J

Geoghegan J

105/01

THE SUPREME COURT

Synopsis:

CRIMINAL LAW

Road traffic offences

Powers of arrest - Practice and procedure - Right to fair trial - District Court - Jurisdiction - Fair procedures - Application for non-suit - Whether applicant properly detained by An Garda Síochána - Whether applicant received fair hearing - Road Traffic Act, 1961 - Road Traffic Act, 1994 (105/2001 - Supreme Court - 13/12/01)

O'Mahony v Ballagh - [2002] 2 IR 410

Facts: 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. Mr. Justice Ó Caoimh J in the High Court held that the District Court judge had acted within jurisdiction and the relief sought by the applicant would be refused. The applicant appealed to the Supreme Court. On behalf of the applicant it was contended that the District Court judge had failed to address arguments tendered by counsel relating to the detention of the applicant by the gardaí and its legality.

Held by the Supreme Court , Mr. Justice Murphy delivering judgment, Hardiman J and Geoghegan J agreeing, in allowing the appeal. It was common case that if the applicant was in unlawful custody at the time when the sample was taken that the evidence relating to the analysis of the sample would not have been admissible in evidence. Where a person was arrested without warrant he must be informed by the arresting garda as to the true grounds of arrest unless the arrested person knew the general nature of the alleged offence for which he was detained. Whether the applicant had such knowledge did not appear to have been explored either in evidence or in argument. Every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the arguments he was accepting and which he was rejecting and, as far as was practicable in the time available, his reasons for so doing. There was no suggestion that Judge Ballagh conducted the case otherwise than with dignity and propriety. However in failing to rule on the arguments made in support of the application for a non suit he fell "into an unconstitutionality". The appeal would be allowed and the matter remitted to the District Court for rehearing.

Citations:

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S6(a)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 1995 S2

ROAD TRAFFIC ACT 1995 S3

ROAD TRAFFIC ACT 1994 S19

ROAD TRAFFIC ACT 1961 S49

CHRISTIE V LEACHINSKY 1947 AC 573

PEOPLE V WALSH 1980 IR 294

WALSH, STATE V MAGUIRE 1979 IR 372

PEOPLE V KEHOE 1985 IR 444

DPP, PEOPLE V O'SHEA 1996 1 IR 556

HEGARTY V GOVERNOR OF LIMERICK PRISON 1998 1 IR 412

GILL V DISTRICT JUSTICE CONNELLAN 1987 IR 541

MCNALLY V DISTRICT JUSTICE MARTIN 1995 1 ILRM 350

HOLLAND, STATE V KENNEDY 1977 IR 193

1

Mr Justice Francis D Murphy delivered the 13th day of December 2001 [nem diss]

2

On the 26th day of January, 2000, the above named Aidan O'Mahony (the applicant) was convicted in the District Court before the late judge Thomas Ballagh of driving a mechanically propelled vehicle while there was present in his blood a quantity of alcohol in excess of the statutory maximum contrary to section 49(2) and 6(a) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994and amended by sections 2 & 3 of the Road Traffic Act 1995and ordered to pay a fine of £800 and disqualified from holding a driving licence for the period of 48 months. An essential proof in the proceedings against the applicant was a certificate issued by the Medical Bureau of Road Safety under s. 19 of the Road Traffic Act, 1994. In the present case it was certified that on analysis by the Bureau a blood specimen taken from the applicant at Naas Garda Siochana Station at 1:30 am on the 23rd of June, 1999 contained a concentration of 221mg of alcohol per 100 ml of blood. It is common case that the applicant was under arrest when that blood sample was taken. The issue which arose was whether that arrest and detention were lawful.

3

There is no significant dispute as to the circumstances in which the applicant came to be in the garda station on the morning in question. The applicant was driving a red Opel motor car on or near the Naas dual carriageway in the early hours of the morning. It came under the observation of the Detective Garda LJ Kennedy who was driving in the vicinity. The garda observed the applicant's car crossing traffic lights which were red; the garda noticed that the left tail light on the car was defective and that the car was being driven in an erratic manner. It was being driven at speeds which varied from 30 mph to over 90 mph. At the outskirts of Naas the Opel slowed down; took a sharp turn and, appeared to Garda Kennedy, to stall. It was the evidence of Garda Kennedy that he jumped out of his car; opened the door of the Opel and extracted the ignition keys from it. Detective Garda Kennedy inferred from the demeanour of the applicant that he was under the influence of alcohol. The applicant staggered when he got out of his car and muttered something which the Garda could not understand. It was at that stage that the Garda identified himself as a member of the Gardaí and informed the applicant that he was awaiting the assistance of the Gardaí in Naas. In fact Detective Garda Kennedy was attempting to contact Naas Gardaí on a mobile telephone when another member of the force, Sergeant Gerard Goode, arrived on the scene. In his evidence the Detective Garda accepted that he had, by removing the keys of the car, arrested the applicant. Furthermore, the Detective Garda fully accepted that he did not explain to the applicant why he was being arrested.

4

In fact Sergeant Goode arrived very quickly on the scene. The lapse of time between the immobilisation of the applicant's car and the arrival of the Sergeant has been described as "a matter of seconds". On his arrival Sergeant Good spoke to the applicant who admitted to him that he had been driving the car and the Sergeant, having got a strong smell of intoxicating liquor from the applicant's breath, formed the opinion that he had committed an offence under s.49 of the Road Traffic Acts 1961– 1995and arrested him for drunken driving. The applicant was then taken to Naas Garda Station where he provided a blood specimen in accordance with the statutory requirements in that behalf. The applicant was charged and in due course a summons was issued charging him with an offence under s.49 of the Road Traffic Act 1961(as inserted by s.10 of the Road Traffic Act 1994). That matter then came for hearing before the first named Respondent on the 26th January, 2000, at Naas District Courthouse.

5

Evidence was tendered on behalf of the DPP in accordance with the history of the matter as set out above. At the conclusion of the case on behalf of the prosecution, counsel on behalf of the applicant, Mr Thomas Cahill, BL, applied to the Court for a non suit. He contended that the arrest of his client by Detective Garda Kennedy was unlawful because of the failure of the garda to inform the defendant of the grounds for his arrest. He then contended that the arrest or re-arrest by Sergeant Goode was likewise invalid having regard to the fact that the applicant was then in the custody of the garda. The argument of counsel on behalf of the applicant (defendant) was supported by authorities which were opened to the...

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