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Cite as: [1998] 3 IR 62, [1997] IEHC 160

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D.P.P. v. Connell [1997] IEHC 160; [1998] 3 IR 62 (16th October, 1997)

THE HIGH COURT

1997 No. 340 S.S.

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PLAINTIFF

AND

FRANCIS CONNELL

DEFENDANT

Judgment of Mr. Justice Geoghegan delivered the 16th day of October, 1997.

1. This is a Consultative Case Stated sent forward to the High Court by Judge Fahy, a Judge of the District Court. The Case Stated arises out of a prosecution under Section 49(2) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994. As I will be explaining in more detail, there was evidence given by the prosecuting Sergeant of the Garda Siochana of a purported statutory arrest but the purported citation of the relevant statutory provision could not in fact have been correct. Under prompting from the Superintendent who was conducting the actual prosecution, the Sergeant purported to adopt the statutory citation which would be relevant and appropriate if in fact that was the basis of the arrest. Strident objection was taken by the Solicitor for the Defendant to what he saw as an attempt by the Superintendent to lead Sergeant Connolly into altering his evidence so as to suit the prosecution. Ultimately, the District Judge has requested the determination by this Court of the following two questions:-

1. Whether the arrest, as made by Sergeant Patrick Connolly, in purported reliance on the provision of Section 49(8) of the Road Traffic Act, 1961, is a valid arrest?

2. In the event that the arrest is invalid, is the State precluded from relying upon any subsequent evidence obtained in consequence of such invalid arrest?

2. I have already given an oral judgment in this case in which I held that the first question should be answered in the affirmative and that the second question as a consequence did not arise. Rather to my surprise, Counsel for the Defendant then suggested to me that my answer to the first question did not necessarily mean that I was holding that the arrest was an arrest under Section 49(8) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994 in that it might mean merely some kind of valid common law arrest. The significance of this distinction was that even if the arrest was a valid arrest but was not an arrest under Section 49(8), the subsequent steps would be invalid because their validity was dependent upon an arrest duly made under Section 49(8). In order to clear up any confusion I then decided, having heard submissions from Counsel on both sides, that I would prepare and deliver a written judgment. Shortly after that, Counsel for the Defendant became indisposed and I therefore postponed giving final judgment until now.

3. The Case Stated sets out the following:-

"Sergeant Patrick Connolly, a member of An Garda Siochana and stationed at Roscommon, gave evidence that, at approximately 02:35 a.m., on Monday, the 24th day of April, 1995, whilst accompanied by Garda Connolly and Garda Martin, both of Roscommon Garda Station, was performing a check-point at a location known as 'Keanes Roundabout', at Clooneybeirne, Roscommon, in the County of Roscommon, a public place. A motor car approached the roundabout along the Mart Road and when about 100 yards from the check-point, the vehicle was driven into its left hand side of the road and stopped. Sergeant Patrick Connolly proceeded to approach the car, the registration number of which was 965 BZL. There was only one person in it, namely, the driver, with whom the Sergeant spoke and who gave his name as Francis Connell of Cornakelly, Moyne, in the County of Longford. Sergeant Connolly spoke with the person and enquired as to why he had stopped his vehicle to which the reply was that he wished to eat chips. Sergeant Connolly stated, from his observation and having spoken to Francis Connell, his face was red and flushed and there was a strong smell of intoxicating liquor from his breath. Sergeant Connolly stated that he had formed the opinion that Mr. Francis Connell had consumed intoxicating liquor and he required him to provide a specimen of his breath. Sergeant Connolly stated that, in the presence of Francis Connell, he assembled an apparatus for indicating the presence of alcohol in the breath and Francis Connell gave a sample which was positive.

The time of the test was 02:45 a.m., on the 24th day of April, 1995. Sergeant Connolly then stated that he formed the opinion that Mr. Francis Connell had committed an offence under Section 49 of the Road Traffic Act, 1961/1994. Sergeant Connolly then stated that he arrested Francis Connell under Section 49(8) of the Road Traffic Act, 1994 at 02:50 a.m., on the 24th day of April, 1995, for an offence contrary to Section 49(2) or of Section 49(3) at Clooneybeirne, Roscommon. Superintendent Weldon immediately asked Sergeant Connolly if he had arrested Francis Connell under Section 49(8) of the Road Traffic Act, 1961, as inserted by the Road Traffic Act, 1994. Sergeant Connolly replied 'Yes'. Mr. Quinn, Solicitor for the Defendant, objected at this stage and stated that the Superintendent could not lead his own witness. Superintendent Weldon replied that he was only attempting to clarify the evidence given by Sergeant Connolly. Superintendent Weldon pointed out to the Court that Section 10 of the Road Traffic Act, 1994 had inserted a new Section 49 in the Road Traffic Act, 1961 and that there was, in fact, no Section 49(8) of the Road Traffic Act, 1994. Sergeant Connolly stated in evidence that he informed Francis Connell in layman's language that he was being arrested for drunk-driving and he proceeded to place Francis Connell in the patrol car....."

4. The Case Stated goes on to set out the normal evidence of the medical procedures etc. but at the end of the evidence Mr. Quinn submitted that the Sergeant had in his evidence stated that the arrest was made pursuant to Section 49(8) of the 1994 Act and that no such power of arrest was provided under such section (in fact Section 49 of the 1994 Act only deals with "minor and consequential amendments"). Mr. Quinn went on to submit that the arrest being in his submission invalid, all subsequent evidence which derived from the arrest was invalid. Superintendent Weldon in reply submitted that there had been a proper arrest by Sergeant Connolly and in effect that the case had been properly proved. The District Judge then goes on to observe as follows:-

"I say that I, this deponent, in the light of the direct evidence as given by Sergeant Patrick Connolly in which he had stated that he had arrested the Defendant 'under Section 49(8) of the Road Traffic Act, 1994' had been of the view that there was no such provision under such Act, granting a power of arrest was concerned, as to whether or not this invalidated the arrest and in such circumstances, I have stated this Consultative Case Stated for the High Court."

5. I draw an inference from the way that last sentence is framed that the learned District Court Judge was not accepting the evidence given by way of correction or at least for the purposes of the Case Stated was not doing so and was posing the questions to the High Court on the basis that the evidence was that the Sergeant had arrested the Defendant "under Section 49(8) of the Road Traffic Act, 1994".

6. A judge at all times takes judicial notice of the law and in my opinion there is only one inference which a judge could draw from the statutory citation given by the Sergeant. It was perfectly obvious beyond any doubt at all that the Guard was referring to Section 49(8) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994, even though he clumsily and indeed incorrectly gave the citation. The District Court Judge therefore would have had to draw the conclusion that the Guard was intending to arrest under Section 49(8) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994. But that is not the end of the matter, because of course the Garda's intention is only one constituent element in the validity of an arrest. The arrested person must have knowledge of why he was being arrested. On the facts as set out in the Case Stated, I am satisfied that the Defendant would have known the reason for his arrest, sufficiently to render the arrest valid. In forming this view I am particularly following the decision of Blayney J. in D.P.P. -v- Mooney , 1992 1 I.R. 458. The point involved in that case was slightly different but the distinction is not in my opinion relevant as basically the principle is the same. In Mooney's case it was held that a Garda's arrest without warrant under Section 49(6) of the Road Traffic Act, 1961, as amended, on his suspicion of the suspect committing or having committed an offence under subsections (2) or (3) of the same section, is not invalidated where the reason given was that he was being arrested "for the offence of 'drunk-driving'". The point was taken by counsel for the defence in that case that since there was an offence of ordinary drunk-driving under Section 49(1) of the 1961 Act, the expression "drunk-driving" must be taken as relating exclusively to that offence and could not cover an offence under subsections (2) or (3). The Court rejected that submission on the grounds that the expression "drunk-driving" was appropriate to any of the three offences under subsections (1), (2) or (3). Indeed Blayney J. went on to suggest that in view of the fact that the defendant in that case had been required to blow into the breathalyser and the results had been positive, he must have been well aware of why he was being arrested and that therefore it might not have been necessary to give him a reason at all. In expressing this view, the learned High Court Judge (as he then was) was following the ruling of the House of Lords in Christie -v- Leachinsky , 1947 AC 573, as set out in the speech of Viscount Simon at p.587, that the requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

Following Mooney's case I likewise take the view that the evidence that Sergeant Connolly informed the Defendant in layman's language that he was being arrested for drunk-driving was sufficient communication of the reason for the arrest and indeed I further agree with the suggestion of Blayney J. that having regard to the fact that a breath test was taken and proved positive, it was not even necessary to state a reason. However, a reason which was sufficient was in fact stated.

7. I therefore hold that the arrest, as made by Sergeant Connolly, was a lawful arrest under Section 49(8) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994 and I answer the first question put by the District Judge in the affirmative. That being so, the second question does not arise.