State (McGroddy) v Carr

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1975
• Docket Number: [1973 No. 267 SS.]
• Date: 01 January 1975

The State (McGroddy) v. Carr

The State (at the Prosecution of John McGroddy)

and

John Carr

[1973 No. 267 SS.]

Supreme Court

Criminal law - Conviction - Uncertainty - Duplicity - Charge of driving while under the influence of "intoxicating liquor or a drug" - Whether one or two offences - Road Traffic Act, 1961 (No. 24), s. 49.

The prosecutor had been charged in the District Court with having driven on a certain occasion a motor car in a public place "while under the influence of intoxicating liquor or a drug" to such an extent as to have been incapable of having proper control of the said vehicle contrary to s. 49 of the Road Traffic Act, 1961; and he had been convicted of "the said offence". The prosecutor obtained in the High Court an absolute order of certiorari quashing the order of conviction, made by the respondent District Justice, on the ground that such order was bad for duplicity. On appeal by the respondent it was

Held by the Supreme Court (Henchy and Griffin JJ.; Walsh J. dissenting), in allowing the appeal, that the prosecutor had been convicted of a single offence and that, accordingly, the order of conviction was not invalid on the ground of uncertainty.

Thomson v. Knights [1947] K.B. 336 and The People (Attorney General) v. Blogh[1958] I.R. 91 considered.

Appeal from the High Court.

On the 16th February, 1973, John McGroddy (the prosecutor) appeared in the District Court at Bray, County Wicklow, before District Justice John Carr (the respondent) to answer a complaint that the prosecutor "did between 6 a.m. and 6.45 a.m. on the 30th December, 1972, at Bray Road, Cabinteely. County Dublin, a public place in the court area in the district aforesaid drive a mechanically propelled vehicle, to wit, a motor car registered number EIO 641 while under the influence of intoxicating liquor or a drug to such extent as to be incapable of having proper control of the said vehicle, contrary to s. 49 of the Road Traffic Act, 1961-1968." The prosecutor was convicted by the respondent who made an order stating:— "The defendant the said John McGroddy be convicted of the said offence and ordered that he pay for penalty the sum of £10 and in default of payment of the said last-mentioned sum within thirty days that he be imprisoned in Mountjoy Prison Dublin for seven days unless the said sum be sooner paid." The prosecutor was disqualified from holding a driving licence for 12 months, and the order directed that the conviction and disqualification should be endorsed on the prosecutor's driving licence.

The prosecutor applied to the High Court for a conditional order of certiorari to quash the conviction and on the 25th July, 1973, the High Court (Finlay J.) granted a conditional order of certiorari to quash the conviction on the ground that the order of conviction was bad for duplicity, unless cause were shown to the contrary. The respondent showed cause by filing a notice stating that the complaint made against the prosecutor charged one offence only and, accordingly, that the conviction was not bad for duplicity. The prosecutor applied to have the conditional order made absolute notwithstanding the cause shown and on the 1st October, 1973, the High Court (Gannon J.) disallowed the cause shown and made the conditional order absolute on the ground that the order of conviction was bad for duplicity. The respondent appealed to the Supreme Court and the appeal was heard on the 27th June, 1974.

Section 49 of the Road Traffic Act, 1961, provides:—

"(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle or 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 blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood.

(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to imprisonment for any term not exceeding six months or, at the discretion of the court, to a fine not exceeding one hundred pounds or to both such imprisonment and such fine.

(3) Subsection (1) of section 1 of the Probation of Offenders Act, 1907, shall not apply in relation to an offence under this section.

(4) Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant."

Section 50 of the Act of 1961 provides:—

"(1) In this section 'unfit to drive' means under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of a mechanically propelled vehicle.

(2) A person who, when in charge of a mechanically propelled vehicle which is in a public place with intent to drive or attempt to drive the vehicle, but not driving or attempting to drive the vehicle, is unfit to drive the vehicle or in whose body there is present a quantity of alcohol such that, within three hours after having been so in charge of the vehicle, the concentration of alcohol in his blood will exceed a concentration of 125milligrammes of alcohol per 100 millilitres of blood shall be guilty of an offence . . .

(7) Where a person convicted of an offence under this section has been previously convicted of an offence under section 49 of this Act or under section 30 of the repealed Act or under section 30(3) or 33(3) of the Road Traffic Act, 1968, he shall be treated for the purposes of this section as having been previously convicted of an offence under this section."

Section 51, sub-s. 1, of the Act of 1961 provides:—

"(1) A person shall not, in a public place—

• (a) drive or attempt to drive, or be in charge of, an animal-drawn vehicle, or

• (b) drive or attempt to drive a pedal cycle,

while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle or cycle."

The words in italics were added by the Road Traffic Act, 1968.

Cur. adv. vult.

Walsh J.

[Having stated the facts, the judge continued . . .] The relevant statutory provision is sub-s. 1 of s. 49 of the Road Traffic Act, 1961, which provides as follows:—

"A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle . . ."

This statutory provision, in referring to driving or attempting to drive, refers to at least two offences and the only question is whether it refers to four. That is to say, whether to drive while under the effect of intoxicating liquor is one offence and to drive under the influence of a drug is another offence when, in each case, the influence is such as to be capable of making the person charged incapable of having proper control of the vehicle. It is interesting to contrast this provision with the provision of s. 50 of the Act which may be described shortly as dealing with the offence of being in charge of a mechanically-propelled vehicle while under the influence of intoxicating liquor or a drug. There the relevant provision is at sub-s. 2 and states that "A person who, when in charge of a mechanically propelled vehicle which is in a public place with intent to drive or attempt to drive the vehicle. but not driving or attempting to drive the vehicle, is unfit to drive the vehicle . . ." shall be guilty of an offence. Sub-section 1 of s. 50 defines "unfit to drive" as meaning being under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of a mechanically-propelled vehicle. In that statutory provision "unfit to drive" is a term of art and limited to unfitness due to either the influence of intoxicating liquor or a drug. It would have been just as easy for the legislature to have said in s. 49 that a person shall not drive, or attempt to drive, a mechanically-propelled vehicle while he is unfit to drive and then to go on to define "unfit to drive" in the same way as appears in section 50. The legislature did not do this and one must assume that there was some reason for this, particularly when one finds one section following immediately after the other and containing these very clear distinctions. If one were to use a brief expression to describe the offence under s. 50 it would be the offence of being in charge of a vehicle while unfit within the meaning of section 50. One cannot use any such short term to describe the offence under section 49.

In one English case, Thomson v. Knights7, it was held that in the corresponding English statutory provision there was only one offence. Lord Goddard said at p. 338 of the report:—"The offence is driving, or attempting to drive, or being in charge of a vehicle, when the man is incapable of having proper control of the vehicle, and that incapacity is caused by drink or a drug. I do not think Parliament here meant to create one offence of being incapable by reason of a drug and another offence of being incapable by reason of drink. What Parliament intended to provide was that a man driving or attempting to drive, or being in charge of a motor car in a self-induced state of incapacity, whether that incapacity was due to drink or drugs, the man commits an offence in each of those cases." In a later case, Bastin v. Davies8, Lord Goddard C.J. refers at p. 581 of the report to his judgment in Thomson v. Knights7 and remarks that in that case the court rejected the argument that there were two offences and stated that "the offence was that of driving in a state of intoxication, it mattered not whether the toxic condition was induced by drink or a drug."

The...