High Court of Ireland Decisions

D.P.P. v. Cullen [2001] IEHC 21 (7th February, 2001)

1. Garda Frances Dunphy, a member of the Garda Síochána stationed at Kilkenny gave evidence that on the 8th of June 1997 at approximately 4.30 a.m. she was on duty at Castle Road, Kilkenny with Garda Lennon, Garda Furlong and student Garda Foley. Whilst talking with two youths they heard a vehicle coming in their direction from the traffic lights on the Parade up the Castle Road at what appeared to be high speed. It was a small white car. Garda Dunphy stated that she stepped out on to the road and waved her flash light signalling the occupants to stop.
2. The vehicle, a white Peugeot 205 slowed down but failed to stop. It continued on up the Castle Road. Garda Dunphy observed a male driver and a female blond-haired passenger.
3. Garda Dunphy and her colleagues immediately got into the patrol car and followed the vehicle up Castle Road. They put on the blue flashing lamp and followed the vehicle into Larchfield, a public place. At 4.32 a.m. Garda Dunphy observed the car pulling into the side of a footpath.
4. The Gardaí pulled in behind the vehicle and Garda Dunphy got out of the car and proceeded towards the vehicle. As Garda Dunphy walked up to the driver’s side of the car, the driver had one leg out of the car and was clearly emerging from the car. Garda Dunphy asked the driver to stand out from the vehicle. He gave his name as James Cullen, 68 Larchfield, Kilkenny. The vehicle bore registration numbers and letters 88 KK 2690. Whilst Mr Cullen was out of the car, he had to lean against the car and the wall. There was a strong smell of alcohol.
5. At 4.35 a.m. and as a result of her observations, Garda Dunphy formed the opinion that the Respondent was incapable of having proper control of a mechanically propelled vehicle in a public place due to the consumption of an intoxicant and at that time Garda Dunphy arrested him for that offence and told him of her opinion and of the offence under section 49(2) or (3) of the Road Traffic Act, 1961 to 1994. She explained to him that he was being arrested pursuant to section 49(8) of the said Act. She then explained to him that he was being arrested for drunk driving as he was unable to have proper control of his vehicle due to the fact that he had consumed alcohol.
6. Garda Dunphy then gave the Respondent the usual oral warnings and in reply he stated that he was coming from a wedding and that he had probably too much to drink.
7. Garda Dunphy placed the Respondent in the back of the patrol car. He was taken to Kilkenny Garda station arriving there at 4.45a.m. Garda Dunphy brought the Respondent to the public office. The Member in Charge was Garda William Powell. Garda Dunphy introduced the Respondent to Garda Powell and explained to Garda Powell the reason for Mr Cullen’s arrest.
8. At 4.47 Doctor Miriam Hogan was telephoned. At 5.10 a.m. She arrived at the station. When she arrived at the station Garda Dunphy introduced her to the Respondent as a designated medical practitioner called on behalf of the Gardaí. Garda Dunphy then made a requirement pursuant to section 13(1)(b) of the Road Traffic Act, 1994 and required the Respondent to provide a sample of his urine or to allow the doctor to take a sample of his blood. Garda Dunphy advised the Respondent of the consequences of failure to provide a sample. The Respondent opted to give a sample of urine.
9. The doctor took a sample of urine from the Respondent and having made the requirements under the Road Traffic Act completed in duplicate the certificate which she had taken from the box provided to her. She left the station at 5.35 a.m.
10. Garda Dunphy offered the Respondent either one of the samples of his urine which had been taken and read out to the Applicant a statement of his rights contained on the yellow slip. This was to the effect that he might retain either of the two containers. The Respondent took a sample. Garda Dunphy then handed the slip to him which he took. He chose one of the samples.
11. The Respondent was released from the Garda Station at 5.30 a.m. on the 8th of June 1997 and the sample was sent by registered post by Garda Dunphy on the 9th of June 1997.
12. Garda Dunphy received a certificate from the Medical Bureau of Road Safety indicating a concentration of 229 mg. of alcohol per 100 ml. of urine.
13. Garda Dunphy was cross-examined by Mr Eugene O’Sullivan, Solicitor for the Respondent. Garda Dunphy agreed that at all times the Respondent had been polite and was not in any way difficult although there had been some difficulty in relation to the giving of the sample. It was put to her that this was because the Respondent was not aware of his rights and had not been made aware of his rights. In reply Garda Dunphy agreed that she herself had not seen and could not therefore comment as to whether and how the Member in Charge had gone about his duties as a Member in Charge on that particular night.
14. Garda Dunphy agreed that she was aware of the presence of Sinead Lambert in the Garda Station and was aware that Ms Lambert had attempted to contact a Solicitor and had in fact at one stage a phone book in her hand.
15. Garda Dunphy agreed that, when Doctor Hogan arrived and the requirement was made pursuant to section 13, the Respondent initially declined to give a sample. Garda Dunphy did not agree that this was because the Respondent was unaware of his rights. She did, however, recall the Respondent leaving the doctor’s room on the requirement being made and that there was some discussion outside with Ms Lambert.
16. While Garda Dunphy took notes at the time she did not have any note of a complaint having been made by the Respondent that he had not been read out his rights. She agreed that the Respondent was then required to go back into the doctor’s room and the requirement was made pursuant to section 13 and it was pointed out to him how serious a refusal could be. She denied that she did not hand the Respondent the yellow paper and further denied that she did not read out the contents of the yellow slip.
17. Garda Dunphy stated that she was unaware that the Respondent had refused to sign the custody record book. This was a matter for the Member in Charge.
18. Garda William Powell gave evidence that at 10 p.m. on Saturday the 7th of June 1997 he took up duty as Member in Charge of Kilkenny Garda Station under the Regulations of the Criminal Justice Act, 1984 being the Treatment of Persons in Custody in Garda Stations Regulations, 1987. He gave evidence by reference to the custody book in front of him.
19. He stated that at 4.05 a.m. on the 8th of June 1997 Garda Dunphy arrived at the Garda Station with the Respondent in her custody. Garda Dunphy informed Garda Powell at 4.35 a.m. of the fact that Mr Cullen had been arrested for drunk driving. Garda Powell stated that he read over Mr Cullen’s rights and handed him a copy of form C.72 (Information for Persons in Custody). At 4.47 a.m. Garda Lennon rang Doctor Hogan who agreed to come to the station.
20. At 5.05 a.m. Sinead Lambert called to see the Respondent.
21. Under cross-examination by Mr O’Sullivan Garda Powell stated that he was relying on what was in the custody book in relation to his recollection of what happened on the morning in question although he had some recollections. He agreed that he was clearly incorrect when he had stated to the Court in examination in chief that the parties had arrived at 4.05 a.m.. He should have said 4.45 a.m.. Garda Powell did not agree that he had failed to read the Respondent his rights or hand him a copy of his rights. He said that he was an experienced Member in Charge and performed the duties of a Member in Charge frequently.
22. Garda Powell was asked whether he did anything else in performance of his obligations as a Member in Charge on the particular night. In answer he stated that he could not say anymore. He was asked further whether he was saying to the Court that the most he had done was to furnish the rights and hand them over to the Respondent and that this was the totality of his compliance with the Regulations. Garda Powell said that this was correct.
23. It was put to him that both the Respondent and Ms Lambert would give evidence that she arrived as a friend of the accused and borrowed a phone book for the purposes of telephoning a solicitor. Garda Powell agreed that this was his recollection. He agreed that he handed the phone book to Ms. Lambert. He did not agree, however, that he snatched the book back from her. Garda Powell stated that if somebody wanted to ring a solicitor he would make that call. He did not agree that the purpose of the phone book being handed to Ms Lambert was for the purpose of contacting a solicitor friend of hers to assist the Respondent.
24. It was put to Garda Powell that he had said to Ms Lambert on the night in question “You have been here before”. Garda Powell denied that he would have said anything like that. He was asked whether he knew Ms Lambert and he replied that he knew her vaguely. Garda Powell was asked whether or not he was personally aware on the night in question that Ms Lambert had been in a garda station a number of years previously for the purposes of the taking of a sample. Garda Powell agreed that he had been so aware on that particular night. It was then put to him that it was incredible that she could state and would give evidence that he had uttered the words “You have been here before” and that he denied it, given that he was in possession of the knowledge of her previous visit at the time of the detention of the Respondent. Garda Powell made no particular comment in relation to this.
25. Garda Powell was then asked to account for why some of the dates in the custody record book appeared to have been changed. He was not in a position to account for this. He was asked whether it was correct that the Respondent had expressly declined to sign the custody record book. Garda Powell agreed that this was so. He was then asked to read out what it was that Mr Cullen was being asked to acknowledge and Garda Powell confirmed that the signature was to acknowledge the fact that his rights had been read and that he had been handed a copy of his rights. It was put to Garda Powell that the declining by the Respondent to sign the custody record was supportive of his allegation that he had not been informed of his rights nor handed a copy of his rights. Garda Powell agreed that the Respondent had at all times been polite and not aggressive. Garda Powell volunteered the view that everything had gone along perfectly smoothly until the arrival of Ms Lambert at the Garda Station.
26. Following legal argument the Respondent went into evidence. In his evidence he confirmed that he was 27 years of age, single and that he worked as a tyre fitter and that he had no previous conviction. He confirmed that he had not been in a garda station under arrest before. At about 4.20 to 4.25 a.m. he had been driving his Peugeot car with his girlfriend back from a wedding. He did not see the Garda at the castle although he did see somebody there and was satisfied that he should have stopped. He recalled having been arrested at Larchfield by Garda Dunphy with the other Gardaí there. After being arrested he asked his girlfriend to attend at the Garda Station and she agreed to do so. As there was no room in the squad car she had to make her own way there.
27. At the Garda Station the Respondent was put sitting down in a waiting area. He stated that he was not handed a copy of his rights nor were his rights explained to him. The first reference to a solicitor was when his girlfriend, Sinead Lambert, arrived at the Garda Station having obtained a taxi to get there. She explained to him that she knew of a solicitor personally who lived in Enniscorthy and that she would try and telephone him. Ms Lambert got a phone book and was looking up the number when the doctor arrived. At this stage the Respondent was brought into a different room which he presumed to be the doctor’s room and Garda Dunphy made a requirement of him to give blood or urine. The Respondent declined initially on the basis that he was not aware of his rights and wanted to know more about the process and what his choices were. He then left the doctor’s room and went out again to talk to Ms Lambert. She was trying to get the number.
28. Garda Dunphy had explained in the doctor’s room that if he did not give a sample he could be prosecuted for failing to give a sample and disqualified for two years anyway and also liable to be sent to prison for a period of time. Whilst the Respondent was with Ms Lambert the Member in Charge, whom the Respondent had not previously met before, came over and asked Garda Dunphy what the problem was. Garda Dunphy replied that the witness was not prepared to give a sample. At this, the Member in Charge immediately took the book from Ms Lambert’s hand and asked her to get out of the station and mentioned that she had been there before. Ms Lambert obeyed the order of the Member in Charge. The Respondent was amazed at these developments.
29. The Respondent was then brought back into the doctor’s room and a requirement was again made for him to give a sample and he agreed to give a sample opting for urine. He then provided a sample which was divided in two, placed in two boxes and Garda Dunphy offered one of the samples to him which he took. The Respondent was adamant that he did not receive any yellow piece of paper. He stated that he kept everything that he obtained in the Garda Station that night carefully and that that amounted to the sample and nothing else.
30. The Respondent stated that Doctor Hogan then left and as the Respondent was leaving Garda Dunphy asked him to sign the custody record book. The Respondent declined to sign, explaining that he had not been made aware of his rights. Garda Dunphy stated that it was not necessary for him to sign it anyway. The Respondent was then given a lift home. He stated that he did want to contact a solicitor that night as he felt there might have been some point to be raised in the fact that he had not been in the car when the Gardaí arrived to him at Larchfield.
31. The Respondent was then cross-examined by Inspector Roche on behalf of the Appellant. It was put to him that the request to sign the custody book would have been done by Garda Powell as part of his duties. The Respondent said that it was his recollection that Garda Dunphy had asked him to sign it. He stated that it was his first time in a Garda Station and that it was between 4.30 and 5 o’clock in the morning and that he did not know of any solicitor locally not being from the area himself. He never had a need for a solicitor before. When the suggestion was made by his girlfriend that she could contact a solicitor whom she knew, he was very happy that this be done by her on his behalf and he did wish to avail of a solicitor’s advice at that stage.
32. When asked by Inspector Roche why he did not stop for Garda Dunphy at 4.30 a.m. on the morning of his arrest, given that it was daylight, he replied that he did not see her. It was then put to him that he had already pleaded guilty to a charge of failure to stop contrary to section 109 of the Road Traffic Act, 1961/1968. It was further put to him that his memory was selective and defective and that he had already admitted after caution to Garda Dunphy that he had been coming from a wedding where he had probably had too much to drink.
33. Sinead Lambert then gave evidence. She stated that she was 24 years of age, single and a hairdresser. She had consumed some alcohol that night but her last drink had been at 1 a.m.. She stated that she had a clear recollection of the incident. They had been at a wedding.
34. She remembered the Respondent being arrested and brought to Kilkenny Garda Station. She made it clear to the Gardaí that she would like to accompany her boyfriend but there was no room in the car, a fact which she fully understood. She was able to hail a taxi and arrived at the Garda Station a little after 5 a.m.. She announced her presence and introduced herself and explained why she was there and the Garda on duty let her in to see the Respondent who was sitting in the corridor just inside the day room. She asked the Respondent what was going on and the Respondent told her that he had been told to sit there until the doctor arrived and the doctor had not as yet arrived. She stated that she suggested to the Respondent that she give a friend of hers, Rory Deane, a Solicitor in Enniscorthy, a telephone call. There was some discussion between them about the fact that he had been out of the car when the Gardaí came along and that there might be some legal advice to be taken on the matter. The Respondent agreed to the suggestion.
35. Ms Lambert then went over to the Garda in charge and asked him could she borrow a phone book. She told the Garda that it was to look up a telephone number of a solicitor friend of hers whom she wanted to ring on behalf of her boyfriend. He agreed that that was all right and handed Ms Lambert the phone book. At the same time the Garda mentioned to Ms Lambert that he did not think it really mattered as the Respondent had to give a sample anyway. Ms Lambert then looked up the phone book and as she was looking for the telephone number the doctor arrived. Garda Dunphy brought the Respondent into the doctor’s room. Ms Lambert was still looking up the number when the Respondent came out and asked her if she had obtained the number yet. She heard the Respondent tell the Garda that he wanted to wait before giving a sample, to speak with the solicitor, that his girlfriend was trying to contact. She said that it was clear at this stage that Garda Powell was getting fed up and he came over and grabbed the phone book out of the witness’s hand and said “Get out of here, you’ve been here before”. She stated that she took this to be a reference to the fact that some three years previously she had been arrested and had to give a sample in the Garda Station and had subsequently been disqualified. She stated that she was shocked at the response of the officer and that she left the day room and sat out in the waiting area until the Respondent came out.
36. In cross-examination Ms Lambert stated that she was perfectly clear in her recollection and that she was not drunk. She had consumed alcohol up until about 1 a.m. only. She had the phone book in her hand not more than three to four minutes. Given the time of day, she was looking up Mr Deane’s private number rather than the office number. It was taking a length of time which she felt was reasonable in the circumstances and she was very upset by the remarks of Garda Powell.
37. The case stated then recites that Judge Harnett then recalled Garda Dunphy. She told him that she would not have asked the Respondent to sign the custody record book as this would have been the job of Garda Powell. Garda Dunphy was then cross-examined by Mr O’Sullivan on this point and was asked whether or not there was any great significance as to whether she or Garda Powell had asked witnesses to sign the custody record book. She stated that it was significant only in so far as it would not normally be her who would do it. It was put to her by Mr O’Sullivan that if Garda Powell had failed to have this done and that she had noticed it that she would try to correct it. Garda Dunphy made no particular response to this remark but did confirm that in any event it was clear from the custody record book that Mr Cullen had expressly declined or refused to sign it and that what he was refusing to sign was an acknowledgement that he had been given and read and explained his rights.

1. On behalf of the Director it was submitted that the Respondent had pleaded guilty to failing to stop for Garda Dunphy on the night in question. He had admitted that they were coming from a wedding and probably had too much to drink. He did give a sample of urine. The presence of a solicitor could not prevent the Respondent from providing a sample of either blood or urine as he was required by law to do so. The Member in Charge was deployed as a permanent Member in Charge at Kilkenny Garda Station and deals with many prisoners. The Respondent was a prisoner and a person entitled to his rights and Ms Lambert was allowed a visit which is all she is entitled to under the regulations. It was to be noted that it was Garda Powell himself who provided Ms Lambert with the phone book and by her evidence she had the phone book for up to four minutes to phone the solicitor, whom she knew.

• The Respondent had not been handed a notice of his custody rights;
• The Respondent had not had his rights read out to him;
• The Respondent had not had his rights explained to him;
• The Respondent declined to sign the custody record book as his rights had not been given to him;
• Garda Powell’s evidence was faulty and unreliable. In this regard the District Court Judge accepted the Respondent’s evidence that Garda Powell had snatched the phone book back from Ms Lambert thus preventing her contacting a solicitor and asked her to leave and said words to the effect that she had been there before;
• Garda Powell had not performed the duties incumbent upon him as a Member in Charge pursuant to the requirements of the Treatment of Persons in Custody in Garda Stations Regulations 1987;
• The times on the custody record had clearly been changed;
• No explanation whatsoever had been offered for the change in the custody book by the Member in Charge;
• Having regard to the above findings of fact the learned Judge of the District Court dismissed the charge on his being satisfied that the legal and constitutional rights of the Respondent had not been accorded to him on the night in question and in the exercise of his Judicial discretion.

1. He was correct in law in dismissing the said charge brought against the Respondent
2. In light of the facts as settled in this case, which facts have been agreed, and in full consultation with both the Appellant and Respondent’s legal representatives for this case stated, the Judge asks whether hi is entitled to take the view that the stating of this case amounts to an unwarranted attempt to oust the inherent jurisdiction of the District Court to hear this matter to a reasonable conclusion.

• In ordinary language of the offence or other matter in respect of which he has been arrested.
• That he is entitled to consult a Solicitor and
• (i) in the case of a person not below the age of seventeen years of age that he is entitled to have notification of his being in custody in the station concerned sent to another person reasonably named by him....
  The information shall be given orally. The Member in Charge shall also explain or cause to be explained to the arrested person that, if he does not wish to exercise a right specified in subparagraph (b) or (c)(i) immediately he will not be precluded thereby from doing so later.