Robert Canty v His Honour Judge Carroll Moran and Another

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JUDGMENT of Kearns P. delivered on the 7thday of March, 2014

In this case the applicant seeks an order of certiorari to quash the decision of the first named respondent delivered on the 19 ^th March, 2013, whereby he dismissed an appeal from the District Court convicting the applicant of an offence contrary to s. 49 of the Road Traffic Act 1961 (as amended). The particulars of the offence were that on the 30 ^th September, 2011, Garda Ferriter observed the applicant driving a motor van erratically in a public place near Tarbert in Co. Kerry. When he stopped the vehicle he observed that the applicant's eyes were red and detected a very strong smell of what he believed to be cannabis. Having duly cautioned the applicant, the applicant admitted that he had smoked a joint of cannabis. Garda Ferriter states that when the applicant stepped out of his van that his balance was poor. He thus formed the opinion under s. 14 of the Road Traffic Act 1994 (as amended by s. 23 of the Road Traffic Act 2002) that the applicant was under the influence of a drug to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle in a public place.

He informed the applicant of that suspicion and required him to accompany him to Listowel Garda Station. The applicant agreed to do so on a voluntary basis and, on arrival at the garda station, was introduced to the member in charge as "a person who had agreed to accompany Garda Ferriter to the garda station".

While voluntarily in the garda station the applicant agreed to provide a specimen of his urine for Dr. O'Connor, the designated medical practitioner, which said specimen was duly forwarded to the Medical Bureau of Road Safety where analysis of the urine revealed a concentration of drugs of the cannabinoid class.

As the evidence later tendered in court revealed, the applicant, upon arrival in the garda station, had been treated for record purposes as a person in custody. His details were inserted in the custody record by the member in charge, one Garda Daniel Maguire. He gave evidence in the District Court that the applicant had been provided with information in accordance with Regulation 81 of the Treatment of Persons in Custody Regulations 1987 and 2006. Garda Maguire gave evidence that he had informed the applicant of the reason for his "arrest" and had explained to the applicant (whom he described as "the prisoner") that he would be searched and further gave evidence that he gave the applicant all the information specified in Regulation 81 of the Criminal Justice Act pointing out that he could exercise those rights at any time during his stay in the garda station. He also handed the applicant a copy of the said notice of rights.

Following a hearing in the District Court the applicant was convicted of an offence contrary to s. 49(1) and 6(a) of the Road Traffic Act 1961, as amended, and was fined and disqualified from driving for a period of four years. Thereafter the applicant appealed against the said conviction and sentence and the same came on for hearing before the first named respondent on the 19 ^th March, 2013.

At that hearing counsel on behalf of the applicant submitted that, notwithstanding that the applicant had voluntarily agreed to accompany the garda to Listowel Garda Station, he had thereafter been treated as a person in custody. It was submitted that his detention was thus unlawful and in breach of his constitutional rights and that any evidence obtained or secured in such circumstances was inadmissible under the exclusionary rule.

The first named respondent gave careful...

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