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Cite as: [1989] IEHC 45

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JUDICIAL REVIEW No. 175 of 1989

THE HIGH COURT

BETWEEN

SHEILA BYRNE

APPLICANT

.V.

HIS HONOUR JUDGE SEAN O'HANRAHAN DISTRICT JUSTICE MARY KOTSONOURIS AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Judgment of Mr. Justice Barron delivered the 13th_- day of

November, 1989.

On the 21st April 1987 at about 1.20 a.m. the Applicant was seated in the driving seat of a motor car which was stationary in Hogan Place in the City of Dublin. Its lights were on. It was approximately 15 feet from the traffic light at Holles Street and facing away from them. It was one and a half to two feet from the pavement on its own side. There were four others with the Applicant in the car. Another person appeared to be trying to push the car. Sergeant Hogan who was on duty in a patrol car which stopped to allow him to investigate what was happening saw the car in the position which I have indicated. At no time did he hear the sound of an engine and at no time did the car move. He formed the view that the Applicant had committed an offence contrary to Section 50 of the Road Traffic Act 1961 and informed her that he was arresting her under Section 50 (8) of the Road Traffic Act 1961 for being drunk in charge of a motor car registered number 650 NZA on the 21st April 1987 at Hogan Place, Dublin. On arrival at the Garda Station the Applicant refused on request to give either a specimen of her blood or of her urine.

She was charged in the District Court with failure pursuant to Section 14 (1) of the Road Traffic (Amendment) Act 1978 to permit a designated registered medical practitioner to take from her a specimen of her blood or at her option to provide for the designated registered medical practitioner a specimen of her urine contrary to Section 14 (3) of the same Act. She was convicted and on appeal to the Circuit Court that conviction was upheld.

The Applicant now seeks to have that conviction set aside upon the grounds:

(1) that there was no evidence that any offence had been committed under Section 50 of the Road Traffic Act 1961;

(2) that there was no power to arrest under Section 50 (8);

(3) that the Order of Conviction was bad on its face; and (4) that it was therefore uncertain whether or not there was jurisdiction to impose the penalty actually imposed.

The first ground of appeal is the substantial ground relied upon. The remaining grounds may be disposed of shortly. Section 50 of the Road Traffic Act 1961 as originally enacted was repealed by the 1978 Act, and a fresh Section 50 re-enacted. As so re-enacted the power of arrest is given by subsection (8). There is nothing incorrect in describing that provision as being a provision of the 1961 Act.

The Order of Conviction as a result of carelessness referred to the offence as being one under Section 14 (3) of the Road Traffic (Amendment) Act without setting out the year of its enactment. There could have been no real doubt but that the Act of 1978 was intended. The earlier part of the order referred to an arrest under Section 50 (8) of the Road Traffic Act 1961 and to the request for a sample having been made under Section 14 (1) of the Road Traffic (Amendment) Act 1978.

The final ground follows on the latter ground and equally fails. Once the offence is identified, the jurisdiction to impose the penalty can be seen to exist.

The basis of the first ground put forward by the Applicant is that there was no evidence t-o establish that the motor car concerned was a mechanically propelled vehicle.

There can be no doubt but that upon a prosecution for an offence involving a mechanically propelled vehicle the prosecution is required to establish that-the motor car in question is a mechanically propelled vehicle. Under the Definition Section of the 1961 Act a mechanically propelled vehicle means a vehicle intended or adapted for propulsion by mechanical means. By subsection (2) of the Definition Section it is provided:

"Where a vehicle, which, apart from this subsection, would be a mechanically propelled vehicle, stand so substantially disabled (either through accident, breakdown or the removal of the engine or other such vital part) as to be no longer capable of being propelled mechanically, it shall be regarded for the purposes of this Act as not being a mechanically propelled vehicle."

As part of such proof, it would have been necessary to negative any reasonable doubt that the car in question was no longer capable of being propelled mechanically. If it was necessary to push the car clearly there was some form of breakdown. But this alone on the facts of the present case would not seem to me to be sufficient to suggest any more than a temporary problem. It may be that Sergeant Hogan might have asked what was wrong with the car, but his failure to do so or to satisfy himself otherwise that the car was capable of being propelled mechanically would not of itself be fatal to a prosecution. Each case depends upon its own facts and upon the reasonable inferences which can be drawn from such facts. In the present case, I would not regard the fact that someone was trying apparently unsuccessfully to push the car while its driver and passengers remained seated in it as reasonably giving rise to an inference that it was no longer capable of being driven mechanically.

Whether or not I am correct in this that is not the issue in the present case. The Guard had a right to arrest once he had formed the necessary suspicion. He was obliged to have that suspicion about each ingredient of the offence, but it did not have to be right. In my view, there was more than ample evidence to raise the suspicion that the car was a mechanically propelled vehicle. This ground therefore fails. Accordingly the relief sought will be refused.

Doc. No. 0172J (CO'G)