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Cite as: [2001] IEHC 178

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D.P.P. v. Moloney [2001] IEHC 178 (20th December, 2001)

THE HIGH COURT

2000 No. 2201 SS

IN THE MATTER OF 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

APPELLANT

AND

THOMAS MOLONEY

RESPONDENT

JUDGMENT of Mr. Justice Finnegan delivered on the 20th day of December, 2001 .

1. This is a case stated by David Riordan, Judge of the District Court, pursuant to Section 2 of the Summary Jurisdiction Act, 1857 as extended by the Courts (Supplemental Provisions) Act, 1961 Section 51 thereof. The Courts (Supplemental Provisions) Act, 1961 Section 51 provides as follows:-

“ S. 51(1) Section 2 of the Summary Jurisdiction Act, 1857 is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a Justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the Court) if dissatisfied with such determination as being erroneous on a point of law, to apply in writing within 14 days after such determination to the said Justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court.”

2. The relevant circumstances are as follows. On the 23rd November, 1999 at 2 p.m., Garda Oliver O’Connell having received a report observed the Respondent’s motor vehicle pulled up on the grass verge. He spoke to the Respondent and observed that the engine was running and that the keys were in the ignition. When speaking to the Respondent he got a strong smell of alcohol from his breath and the Respondents speech was slurred. He requested the Respondent to step from the vehicle which the Respondent did with some difficulty. Garda O’Connell informed the Respondent that he was of the opinion that he, the Respondent, had consumed intoxicating liquor and that he was going to give him a breath test. He made the formal requirement of him in the following terms:-

“In accordance with Section 12(1) of the Road Traffic Act, 1994, I am now requiring you to provide a specimen of your breath by exhaling into this apparatus designed for the purpose of indicating the presence of alcohol in the breath.”

3. The Respondent provided a breath specimen and it was positive. Garda O’Connell then informed the Respondent that he was of the opinion that the Respondent had committed an offence under Section 49(2) or (3) of the Road Traffic Acts, 1961/95 at Clonea Road, a public place, and that he was arresting him pursuant to subsection 8 of that section. Garda O’Connell explained to the Respondent that he was being arrested for drink driving and cautioned him in the usual terms. The Respondent was taken to Dungarvan Garda Station where he opted to and did provide a specimen of his urine which was sent to the Medical Bureau of Road Safety: the Bureau’s certificate indicated that the same contained a concentration of 189 milligrams of alcohol per 100 millilitres of blood.

4. Notwithstanding that the arrest of the Respondent was effected pursuant to the Road Traffic Acts, 1961/95 Section 49(2) or (3) the Respondent was in fact charged under the Road Traffic Acts, 1961/95 Section 50(2).

5. The Road Traffic Act, 1961 Section 49 is substituted by the Road Traffic Act, 1994 Section 10. Insofar as is relevant to these proceedings it provides as follows:-

“S. 49(3) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 107 milligrams of alcohol per 100 millilitres of urine.

(6)(b) A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under Section 50 of this Act.

(8) A member of the Garda Siochána may arrest without warrant a person who in the members opinion is committing or has committed an offence under this section.”

6. The Road Traffic Act, 1961 Section 50 is substituted by the Road Traffic Act, 1994 Section 11. Insofar as is relevant to these proceedings it provides as follows:-

“S. 50(2) A person shall be guilty of an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his body a quantity of alcohol such that, within 3 hours after being so in charge, the concentration of alcohol in his urine will exceed a concentration of 107 milligrams of alcohol per 100 millilitres of urine.

(6)(b) A person charged with an offence under this section may in lieu of being found guilty of that offence, be found guilty of an offence under Section 49 of this Act.

(8) In a prosecution for an offence under this section it shall be presumed that the Defendant intended to drive or attempted to drive the vehicle concerned until he shows the contrary.

(10) A member of the Garda Siochána may arrest without warrant a person who in the members opinion is committing or has committed an offence under this section .”

Finally, the Road Traffic Act, 1994 Section 13(1) provides that where a person is arrested under Section 49(8), Section 50(10), Section 53(6), Section 106(3A) or Section 112(6) of the Road Traffic Act, 1961 or under Section 12(3) of the Road Traffic Act, 1994 and a member of the Garda Siochána is of opinion that the person has consumed an intoxicant (which as defined includes alcohol) he may require that person to provide a breath, urine or blood sample: failure to do so is an offence under the Section.

7. At the conclusion of the prosecution case the Solicitor for the Respondent applied to the District Court Judge for a dismissal of the charge against the Respondent. The arguments relied upon by the Respondent and the Appellant on that application as set out in the case stated in the following terms:-

“At the close of the prosecution case Mr. Joe Curran, Solicitor who appeared on behalf of the Respondent submitted that the Respondent had been arrested under Section 49(8) of the Act, for a breach of Section 49(2) or (3) but that the charge before the Court relates to a Section 50(2) charge (i.e. drunk in charge). He argued that the State was not entitled to prosecute for drunk in charge when the arrest was made under Section 49(8) for the offence of drunk driving under Section 49(2) or (3). Mr. Curran argued that there were two distinct powers of arrest, i.e. Section 49(8) and Section 50(10). Mr. Curran further submitted that for an arrest to be made under Section 49(8) or Section 50(10) the member must have first formed an opinion that an offence had been committed under this specific section. Mr. Curran submitted that neither section gave power to arrest for an offence under the other section. In this case Mr. Curran stated the evidence was that Garda O’Connell formed an opinion under Section 49(2) or (3) and no evidence was given of the forming of an opinion under Section 50. On this basis Mr. Curran sought a dismissal of the charge against the Respondent.

Inspector Thomas O’Grady, Dungarvan Garda Station who appeared on behalf of the Appellant replied that the Respondent had been arrested lawfully, the Garda properly formed his opinion that the Respondent was committing an offence under Section 49(2) or 49(3) of the Road Traffic Acts, 1961/94 and that the specimen in the Garda Station was taken in accordance with Section 13 of the Road Traffic Act, 1961/94. Inspector O’Grady submitted that the defence had had an opportunity to cross examine the Garda regarding how he formed his opinion, the arrest and subsequent events in the Garda Station but chose not to do so. Inspector O’Grady submitted that the arrest was lawful and that no issue regarding the taking of the specimens was raised, that the prosecution was entitled to put either charge (i.e. Section 49(2) or Section 50(2)) against the Respondent. Inspector O’Grady submitted that the evidence before the Court supported a charge of either Section 49(2) or Section 50(2). Inspector O’Grady submitted that the Road Traffic Act, 1994 Section 10(6)(b) and Section 11(6)(b) empowers the Court to convict for either offence having heard the evidence. Section 13(1) of the Act allows a blood/urine specimen to be taken from a person who was arrested for any one of the following offences - Section 49(8), Section 50(10), Section 53(6), Section 12(3) (of the Act of 1994), Section 106(3A) and Section 112(6) of the Act of 1961. Inspector O’Grady also submitted that people are arrested every day of the week for a specific offence and are very often charged with offences that are no way related to the offence for which they were arrested”.

8. The District Court Judge accepted the argument made on behalf of the Respondent and dismissed the charge against him. The question upon which the opinion of the High Court is sought is framed as follows in the case stated:-

“The opinion of the High Court is sought as to whether I was correct in law and so dismissing the said charge and, in particular, whether I was correct in law in holding that as the Respondent had been arrested under Section 49(8) of the Road Traffic Act, 1961/94 for a breach of Section 49(2) or (3) of that Act, I was not entitled to convict the Respondent of the offence before the Court, being an offence under Section 50(2) and 6(a) of the said Act.”

9. No issue is raised in the case stated as to the lawfulness of the arrest or of the procedures conducted pursuant to the Road Traffic Act, 1994 Section 13. The sole issue is whether a person having been arrested under the Road Traffic Acts, 1961/95 Section 49(8) can be charged with an offence under Section 50 of the Acts.

In Christie -v- Leachinski (1947) 1 All ER 567 at 575, Lord Simmons in speaking of an arrest said that if a man is to be deprived of his freedom he is entitled to know the reason why. That rule he accepted is subject to qualification and the qualification relevant here is that an arrest does not become wrongful merely because a man is arrested for one felony, say murder, and he is subsequently charged with another felony, say, manslaughter. He goes on to say:-

“These and similar considerations lead me to the view that it is not an essential condition for lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment, but this, and this only, is the qualification which I would impose on the general proposition. It leaves untouched the principle, which lies at the heart of the matter that the arrested man is entitled to be told what is the act for which he is arrested. The “charge” ultimately made will depend on the view taken by the law of his act. In 99 cases out of 100 the same words may be used to define the charge or describe the act, nor is any technical precision necessary - for instance, if the act constituting the crime is the killing of another man, it will be immaterial that the arrest is for murder and at a later hour the charge of manslaughter is substituted. The arrested man is left in no doubt that the arrest is for that killing. This is, I think, the fundamental principle, that a man is entitled to know what, in the apt words of Lawrence L.J. are “the facts alleged to constitute crime on his part”.

Again in Gelberg -v- Miller (1961) 1 All ER 291, the Appellant was arrested and at the time the constable told him that he was arrested for obstructing him in the execution of his duty by refusing to move his motor car. The Appellant was charged with and convicted of wilfully obstructing a police officer in the execution of his duty contrary to Section 2 of the Prevention of Crimes Amendment Act, 1885 an offence which did not empower a constable to arrest without warrant. It was held that a power to arrest without warrant existed under Section 54 of the Metropolitan Police Act, 1839 and that accordingly having regard to what the Appellant knew at the time of his arrest and what the Respondent (the arresting constable) said to him before making the arrest was sufficient to satisfy the legal requirement for an arrest without a warrant, namely that the arrested person was entitled to know what was the act for which he was arrested and that it was immaterial that the charge ultimately brought against him was not a charge under the Metropolitan Police Act, 1839 Section 54.

10. That the foregoing propositions represent the law in this jurisdiction is clear from the decision of Blayney J. in DPP -v- Mooney [1992] 1 IR 548 and of Geoghegan J. in DPP -v- Connell [1998] 3 IR 62. In the former, the reason given for the arrest was “for the offence of drunk driving” and the evidence was that the arrest had been made on suspicion of an offence under Section 49(2) or (3) of the Road Traffic Act, 1961. It was argued on behalf of the Respondent that there being an offence of ordinary drunk driving under Section 49(1) of the Act, the arrest should be taken as having been made in respect of an offence under Section 49(1) and not under Section 49(2) or (3). Blayney J. held that the expression “drunk driving” was appropriate to any of the three offences under Section 49(1), (2) or (3) of the Act of 1961 but went on to suggest that in view of the fact that the Defendant in that case had been required to blow in to the breathalyser and the results had been positive he must have been well aware of why he was arrested and that therefore, it might not have been necessary to give him a reason at all: in so doing he relied upon Christie -v- Leachinski . In DPP -v- Connell the arresting Garda gave evidence that he had arrested the Respondent under Section 49(8) of the Road Traffic Act, 1994 and informed the Respondent in layman's language that he was being arrested for drunken driving. Geoghegan J. held that the information given in layman’s language was sufficient communication of the reason for the arrest and went on to agree with 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. In Hobbs -v- Hurley , the High Court, unreported 10th June, 1980, Costello J. said:-

“A lawful arrest can be made when a member of the Garda Siochána is of the opinion that “an offence under this section” has been committed. There are three distinct offences created by Section 49 and it is quite clear that at the time of arrest it would not be possible for the Garda to know then under which section the suspect would subsequently be charged.”

11. Applying the foregoing principles of law to the circumstances of the present case it is quite clear that the arrest was lawful. Having regard to the provisions of the Road Traffic Act, 1994 Section 13, the procedures pursuant to which a sample of urine was obtained were likewise lawful. In neither case was the contrary contended for by the Respondent. The only issue is the net one - the Garda having arrested a Respondent pursuant to the power conferred upon him by the Road Traffic Acts, 1961/95 Section 49(8) was it open to the Appellant to charge the Respondent with an offence contrary to Section 50 of the Acts.

12. I propose approaching the question in two ways. Firstly, applying the law as set out above, had the Respondent knowledge of the facts alleged to constitute the crime with which he was charged? The Respondent was in the colloquial sense the driver of the vehicle and likewise in the legal sense, having regard to the definition contained in the Road Traffic Act, 1961 Section 2 -

“ ‘Driving’ includes managing and controlling ... and ‘driver’ and other cognate words shall be construed accordingly.”

13. No issue as to driving arose in the District Court. The engine was running and the keys were in the ignition. Garda O’Connell informed him that he was of the opinion that he, the Respondent, had consumed intoxicating liquor. He was required to, and did in fact furnish, a specimen of his breath, which specimen was positive. He was told that he was being arrested for drink driving. These facts together were sufficient to constitute the crime with which he was charged, that is, an offence under the Road Traffic Act, 1961/94 Section 50(2) thereof. It is immaterial that he was in fact arrested pursuant to the statutory power of arrest conferred by Section 49(8) of the Acts and in any event the same facts which were within the knowledge of the Respondent were sufficient to empower Garda O’Connell to make an arrest under Section 50(10) of the Acts.

14. Secondly, the scheme of the Road Traffic Acts, 1961/95 is relevant. Section 49(6)(b) provides that a person charged with an offence under that section in lieu of being found guilty of that offence may be found guilty of an offence under Section 50 of the Acts. Section 50(6)(b) provides that a person charged with an offence under that section in lieu of being found guilty of that offence may be found guilty of an offence under Section 49 of the Acts. In each case, the person to be charged is the driver, as defined in the Acts. The distinction between the offences is that in Section 49 there is a requirement that the driver drive or attempt to drive and in Section 50 that he be in charge of the vehicle with intent to drive or attempt to drive the vehicle but not driving or attempting to drive it. The distinction in any particular set of circumstances between the word drive, attempt to drive and in charge is not without difficulty: see footnotes to the Road Traffic Act, 1994 Sections 10 and 11 in Irish Current Law Statutes for discussion. I am satisfied that the object of the provisions in Section 49(6)(b) and Section 50(6)(b) are designed to alleviate this difficulty. Had the Respondent in fact been charged under Section 50 of the Acts, he could have been convicted under Section 49 of the Act and visa versa. The circumstances accordingly are even more cogent than those in Christie -v- Leachinski where the relationship between the Act relied upon to affect the arrest and the ultimate charge in each case was not nearly so proximate.

15. For the foregoing reasons, I form the opinion that the learned District Judge was not correct in dismissing the charge and further was not correct in holding that as the Respondent had been arrested under Section 49(8) of the Road Traffic Acts, 1961/95 for a breach of Section 49(2) or (3) of that Act, that he was entitled to convict the Respondent of the offence before the Court being an offence under Section 50(2) and (6)(a) of the said Acts. The answer to the composite question accordingly is no.