O'Neill v Judge McCartan

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Charleton
• Judgment Date: 15 March 2007
• Neutral Citation: [2007] IEHC 83
• Date: 15 March 2007

O'Neill v Judge McCartan

Judicial Review

Between

David O'Neill

Applicant

and

Judge Patrick McCartan and Director of Public Prosecutions

Respondents

[2007] IEHC 83

[No. 611 JR/2006]

The high court

CRIMINAL LAW

Detention

Drunken driving - Whether constitutional rights protected - Duration of period in custody prior to attendance of doctor to take sample - Whether there was sufficient evidence before respondent to enable him to decide that there was no culpable delay -People (DPP) v Madden, People (DPP) v McNiece [2003] 2 IR 614 and DPP v Finn [2003] 1 IR 372 applied; DPP v O'Connor [2005] IEHC 422 (Unrep, Quirke J, 14/12/2005) and The State (Daly) v Ruane [1998] ILRM 117 followed - Relief refused (2006/611JR - Charleton J - 15/3/2007) [2007] IEHC 83

O'Neill v Judge McCartan

The applicant sought an order of certiorari quashing his conviction on appeal in the Circuit Court for the offence of drunken driving on the grounds that the prosecution failed to comply with the terms of the Road Traffic Act and failed to vindicate the applicant’s constitutional rights by ensuring the timely attendance of a doctor at the Garda Station for the purpose of taking a sample from the applicant. It was submitted on behalf of the applicant that there was no evidence upon which the learned Circuit Court Judge could have decided that the detention of the applicant remained lawful having regard to the delay in the arrival of a doctor at the Garda Station.

Held by Charleton J. in refusing the application: That there was sufficient evidence before the learned Circuit Court Judge to have enabled him to decide that there had been no culpable delay on the part of the Gardai in ensuring the attendance of a doctor for the purpose of the procedure under the 1961 Act, as amended, in taking samples for analysis by the Medical Bureau of Road Safety.

Reporter: L.O’S.

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1961 S6(A)

ROAD TRAFFIC ACT 1961 S10

ROAD TRAFFIC ACT 1961 S23

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1961 S61(4)

ROAD TRAFFIC ACT 1961 S61(3)

ROAD TRAFFIC ACT 1961 S61(2)

DPP, PEOPLE v MADDEN 1977 IR 336

OFFENCES AGAINST THE STATED ACT 1939 S30

AG v O'BRIEN 1965 IR 142

CONSTITUTION ART 40

DPP v FINN 2003 1 IR 372 2003 2 ILRM 47 2003 15 3386

DPP v MCNIECE 2003 2 IR 614 2003 19 4187

DPP v O'CONNOR UNREP QUIRK E14.12.2005 2005/22/4512 2005 IEHC 422

DALY, STATE v RUANE 1988 ILRM 117

Facts

1 1. The applicant David O'Neill was charged and convicted of the following offence:

"That you did on 26/06/2005 at Curragh, Kildare, a public place, in the said District Court Area in Kildare, drove a mechanically propelled vehicle registered number 05 MH 4235 in a public place while there was present in your body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in your urine exceeded a concentration of 107mgs of alcohol per 100mls of urine. Contrary to s. 49(3) and (6)(a) of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic Act 1994 and as amended by s. 23 of the Road Traffic Act 2002."

2 2. On this offence, the accused was convicted in the District Court and having appealed to the Circuit Court; which appeal was heard by way of the full rehearing provided for in law, by the first named respondent on 17th May 2006. The applicant was again convicted and the penalty of disqualification was increased from two to four years. From that conviction, the applicant had sought judicial review of the decision of the learned respondent based on an alleged delay in the arrival of a doctor to Newbridge Garda Station following upon his arrest on 26th June 2005.

3 3. Briefly, the affidavits indicate that the applicant was arrested at 22.31 hours and was conveyed to Newbridge Garda Station, arriving there at 22.50 hours. The custody record indicates that the notice of rights was read to the applicant and signed off by Garda Darley at 22.55 hours. In court, Garda Brendan McNamara gave evidence that shortly after this a doctor was called to take a sample from the applicant. His evidence, as recounted in affidavit before this court, was recalled by him as being the following:-

"In cross examination, in respect of the doctor being called I gave evidence that Garda Darley had done this after giving the applicant his notice of rights. I gave evidence that the applicant was given his notice of rights at [22.56 hours] and these had been acknowledged by the applicant by signing the custody record. During the course of my cross examination, the custody record was handed into court and in this regard I beg to refer to a copy of same, which is exhibited above. I stated that it appeared that the doctor had been called at or about [22.56 hours]. I indicated that I was unable to assist the court in respect of the activity of the doctor between being called to the Gardaí and arriving at the station. I gave evidence that the doctor had been requested to come to the station by contacting "K-Doc". I gave evidence that this is an out-of-hours service for doctors. I gave evidence that the doctor was based in the Health Centre in Newbridge on the evening in question but may have been out on call when our request for his services were rung in. I gave evidence that the K-Doc system operates by way of an operator [who] contacts the doctor on duty in the relevant area who is then driven to calls by a driver. I gave evidence that the custody record would suggest that the doctor was called at [22.56 hours] approximately and arrived at [23.40 hours] some forty four minutes later. I said that counsel for the applicant applied for a direction in respect of the time it took for the doctor to arrive. I indicated that I was not in a position to put the matter any further and stated that I had said whatever I could about the doctor. No further evidence was called by the prosecution. The application for a direction was rejected by the first named respondent… In particular he held that he was satisfied that the doctor had been called shortly after [22.55 hours] and that the period that it took to arrive could not be deemed to be unreasonable."

The Law

4 4. Section 49 of the Road Traffic Act, 1961, as inserted and amended, allows a Garda to arrest without warrant any person who, in the opinion of the Garda, is committing, or has committed, the offence of driving, or attempting to drive, a car in a public place when there is excess alcohol in their body. The section specifies that the offence has to be, in effect, detected within three hours. I derive this from the precise wording of the offence at s. 61(4) which provides:-

"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 three hours after so driving or attempting to drive, the concentration of alcohol in his breath will exceed a concentration of 35mgs of alcohol per 100mls of breath."

5 5. Section 61(3) and s. 61(2) provide for similar provisions, but with different concentrations, in relation to urine and blood.

6 6. The deprivation of liberty of a citizen is a serious matter, even if it occurs only for a matter of minutes.

7 7. In the People (D.P.P.) v. Madden [1977] I.R. 336, a statement by an accused person was held inadmissible by the Court of Criminal Appeal because the time within which...