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Cite as: [1998] IEHC 178

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D.P.P. v. Morrisey [1998] IEHC 178 (15th December, 1998)

THE HIGH COURT

No. 1998/332 SS

IN THE MATTER OF THE SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA FRANCES DUNPHY)

APPELLANT

AND

SEAN MORRISSEY

RESPONDENT

JUDGMENT of Mr Justice O'Higgins delivered the 15th day of December, 1998.

1. This is a Case Stated by Judge William Harnett pursuant to the Summary Jurisdiction Act 1857 as extended by Section 51 of the Courts (Supplemental Provisions) 1961 on the application of the Appellant who is dissatisfied with his determination of the above proceedings as being erroneous in point of law. The relevant salient facts are contained in paragraph 2, a,b,c,d,e,f,g,h,i,and p of the Case Stated which read as follows:-

"The facts proved or admitted were as follows:-

a. Garda Frances Dunphy a member of the Garda Siochana stationed at Kilkenny Garda Station, gave evidence that on the 25th November 1996 she was on duty as the observer in the official patrol car. She was accompanied by Garda Mark Wall. At approximately 3 a.m. she observed a Rover 400 motor car, Registration Number 96-KK-1624

pulling away from the Sceilp Inn, Callan Road, Kilkenny, heading towards the roundabout on Callan Road, a public place.

b. Garda Dunphy noticed that the driver had failed to turn on the lights of the said vehicle. They followed this vehicle which headed out the Kells Road towards Kells Village. As they followed the vehicle they noticed the car was being driven on both sides of the road. At this point they turned on the flashing blue light in order to alert the driver that Garda Dunphy wanted him to stop. Garda Wall had difficulty over-taking the car. Garda Wall flashed the headlights of the motor car. However, the driver failed to stop.

c. About half a mile down the road the driver of the car put on his right indicator (and it was at this point that Garda Wall realised that there was a house on the right-hand side of the wall, just a short distance away). Garda Wall overtook the vehicle and blocked his path into his home.

d. At 3.10 a.m. they stopped his car at Donaghmore, Kells Road, Kilkenny. Garda Dunphy proceeded to the car and spoke to the driver. The driver rolled down his window. There was a smell of alcohol coming from the vehicle. Garda Dunphy demanded production of the driver's licence. The driver informed her that he had not got it with him. Garda Dunphy asked him his name and address which he gave as Mr Sean Morrissey of Donaghmore, Kells, Kilkenny, (the Respondent herein).

e. As Garda Dunphy spoke to the Respondent she got a smell of alcohol from his breath. She asked him to step out of the car. As Garda Dunphy was talking to the Respondent at the rear of his car she got a strong smell of alcohol from his breath. The Respondent became very aggressive and informed her that "if you take this any further you're in trouble. I know lots of the lads up at the station".

f. At that point Garda Dunphy cautioned the Respondent as follows:-

"You are not obliged to say anything unless you wish to do but anything you do say will be taken down in writing and may be given in evidence". Garda Dunphy formed the opinion that the Respondent had consumed intoxicating liquor from the smell of alcohol and her observations.

g. Garda Dunphy then made the requirement for the Respondent to provide a specimen of his breath in accordance with Section 12(1). She informed him of the consequences of refusal or failure to comply. He agreed to provide a specimen of his breath, Garda Dunphy then required the Respondent to accompany her to the patrol car in order to carry out the test. Garda Dunphy handed the Respondent the alcolyser directing him on its use, not to hold it by the glass and to continue blowing into it until she informed him to stop. The Respondent began blowing into the apparatus, at which time Garda Dunphy noticed that the breath was not going into the bag. She took the apparatus from him and disassembled it at which time she found that one end of the glass rod was not properly cut. She cut the rod and assembled the apparatus. She again made the requirement of the Respondent for him to provide for her a specimen of his breath in accordance with Section 12(1). She informed him of the consequences of refusal or failure to comply with the requirement. The Respondent agreed to provide a specimen of his breath. Garda Dunphy made the breath rest requisition at 3.12 a.m. The Respondent provided the specimen at 3.15 a.m. the alcolyser gave a positive result.

h. At 3.18 a.m. as a result of the alcolyser and her observations Garda Dunphy formed the opinion that the Respondent was incapable of having proper control of his car due to the fact that he had consumed alcohol. She told the Respondent that she was of the opinion that he had committed an offence under Section 49(2) and 49(3) of the Road Traffic Acts 1961/64 and that she was arresting him pursuant to sub-Section 8 of this Section. Garda Dunphy then told the Respondent in simple English that she was arresting him for drunk driving. She then cautioned him and he had no reply.

i. Garda Dunphy then placed the Respondent in the patrol car and conveyed him to Kilkenny Garda Station. They arrived at the station at 3.25 a.m. She informed Garda William G Powell, member in charge as to the reason for arresting the Respondent, the location and time of arrest.

p. At the close of the Prosecution case Mr Eugene O'Sullivan, Solicitor for the Defendant/Respondent asked for a direction from me and submitted that the Prosecution, on the evidence of Garda Frances Dunphy, had failed to show beyond a reasonable doubt, that the place where Garda Dunphy had spoken to the Defendant, formed the opinion of the consumption of alcohol by the Defendant, administered the breathalyser to the Defendant and arrested the Defendant was in fact a public place. Mr O'Sullivan conceded that reference had been made earlier in the evidence of Garda Dunphy that when she first observed the Defendants vehicle it had been in the vicinity of the Sceilp Inn, Kilkenny, which is situate in a public place, but that no reference thereafter had been made by Garda Dunphy regarding a public place. Supt. Duffe, for the Prosecution in response to this submission responded that Garda Dunphy had stated in her verbal evidence that when she arrested the Respondent, she stated that she had arrested him for an offence in a public place. Supt. Duffe requested that the Garda be recalled to clarify this aspect of her evidence. To this first submission I informed Superintendent Duffe that I had taken careful note of the evidence and was satisfied that at the point/place of detection and arrest, Garda Dunphy had made no reference whatever to the vicinity of where this had occurred as being in a public place. As to the second submission or request that I allow Garda Dunphy to be recalled, I declined this request as I considered that the Prosecution had informed the Court that the case was complete, legal submissions had been made and argued, and I should exercise my discretion in not allowing the State to re-open the case and recall the witness to give further evidence. The opinion of the High Court is sought as to whether I was correct in law in dismissing the said charge, in the circumstances as set out above."

2. The Case Stated is dated the 24th February, 1998.

3. No issue is taken by the Appellant in relation to the learned District Judge's failure to allow the Prosecution to recall the Garda. Furthermore, the version of the facts as set out by the learned District Judge is not challenged. The sole issue is in relation as to whether the learned District Judge was correct in law in dismissing the charge on the basis that the Prosecution has failed to show beyond reasonable doubt that the place where Garda Dunphy had spoken to the Defendant, formed the opinion of the consumption of alcohol by the Defendant, administered the breathalyser to the Defendant, and arrested the Defendant, was in fact a public place.

4. Mr Collins for the Director of Public Prosecutions, submits that the learned District Judge was incorrect in his determination and was wrong in law in dismissing the case. He argues that since the evidence was such as to raise a prima facie case, it was for the Defendant to challenge the case that had been made. In default of such challenge, he submits, the learned District Judge was in error in dismissing the case. Mr Gardiner, for the Respondent, submits that the decision was a decision made on facts, made by the learned District Judge. It was entirely a matter for him, as to whether he was satisfied beyond reasonable doubt, and that he was therefore entitled to come to the conclusion that he did.

5. The onus is on the Prosecution to prove that the driving, the administration of the breathalyser and the arrest took place in a public place see A.G. (McLoughlin -v- Rhatigan) (1965) 100 ILTR 37 and DPP -v- Joyce [1985] ILRM 206 a Supreme Court decision. I also accept as being well settled law that it is not the function of the High Court to interfere with decisions of fact made by a District Judge, see D.P.P. -v- Thomas Nangle [1984] ILRM page 171.

6. I have been referred to the case of DPP -v- Collins [1981] ILRM 447 a judgment of the Supreme Court and a passage of the judgment of Henchy J at

page 452.

"While the legal or persuasive burden of proof in a criminal case rests on the prosecution (save where a Statute provides otherwise), the prosecution will have discharged their evidential burden if they have produced sufficient evidence to raise a prima facie case."

7. The question to be determined in this case is whether the prosecution had adduced such evidence as is referred to in the judgment of Henchy J. The evidence established the following:-

* That the vehicle was observed going to the roundabout on Callan Road - a public place.

* That the Garda vehicle followed the Respondent's car for a distance which appears from the Case Stated to be about half a mile on the

8. Kells Road towards Kells Village.

* That Garda Wall overtook the Respondent's car blocking the path to the Respondent's home.

9. There was evidence that the vehicle was in a public place near the roundabout on the Callan Road, and evidence that the Garda vehicle pursued it for approximately half a mile down the Kells Road towards Kells Village. In those circumstances I consider that it was unnecessary to give evidence that the vehicle continued to be in a public place at the precise place where the car was stopped, in default of evidence to the contrary or on which the contrary could be inferred.

10. As Henchy J. said in the Collins case at page 452:-

"Where ... the prosecution have adduced evidence showing the existence of all the elements necessary for the commission of an offence, and the defence wish to contravert or cast the necessary doubt on the prosecution case by suggesting the existence of a factor which would justify an acquittal, the evidential burden of that factor passes to the defence"

11. The submission made by the Defendant and accepted in the District Court had inherently in it the suggestion that the motor vehicle could have left the public place at some stage, prior to the arrest. There is no evidence in the Case Stated to support this proposition. As Henchy J. observed in the Collins case at page 452:-

"This form of defence by suggestion is well known in the Courts and decided cases show that it has received a short shrift".

12. I consider that since the prosecution had adduced evidence showing the existence of all the elements necessary for the commission of the offence, if the defence wished to cast the necessary doubt on the prosecution case by suggesting the existence of a factor which would justify an acquittal, the evidential burden passed to the Defence.

13. In my opinion, therefore, the learned District Judge was not correct in dismissing the case.