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Cite as: [2007] IEHC 248

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Judgment Title: D.P.P. -v- O'Sullivan

Neutral Citation: [2007] IEHC 248

High Court Record Number: 2007 128 SS

Date of Delivery: 31 July 2007

Court: High Court

Composition of Court: Herbert J.

Judgment by: Herbert J.

Status of Judgment: Approved

Neutral Citation Number: [2007] IEHC 248

THE HIGH COURT

[2007 NO. 128 SS]

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

DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND
SHEILA O’SULLIVAN

DEFENDANT

judgment of Mr. Justice Herbert delivered on the 31st day of July 2007
This case was stated by Constantine O’Leary, Judge of the District Court for the District Court Area of Cork City, District No. 19, pursuant to the provisions of
s. 52 of the Courts (Supplemental Provisions) Act, 1961, for the determination by this court of a question of law which arose in the above entitled proceedings.
In the case stated the learned District Court Judge records that he found the following facts for the purpose of ruling on a submission by the defence at the close of the case for the prosecution, that there was no case to answer, namely:-
“1. That Garda Murphy observed car registration No. 97 C 14138 driving at a place and time alleged, on the date alleged;
2. The car drove into the driveway of the defendant’s dwelling where Garda Murphy approached it, and opened car door without making any attempt to communicate with any person in the car prior to doing so;
3. That there was no necessity for Garda Murphy to initiate her attempt to communicate with the defendant by opening the car door rather than by seeking to initiate communication by word, sign or knock without opening the door;
4. The defendant was in possession of the car as lawful owner or with the consent of the owner of it.
The learned District Court Judge seeks the opinion of this Court on the following questions:-
“1. If Garda Murphy’s action was unlawful, on grounds other than

infringement of the rights of the defendant under the Constitution, would it make inadmissible, her evidence regarding the defendant’s identity as the driver and her observations of her condition in the prosecution of either of the offences alleged?

2. If Garda Murphy’s action was unlawful, on grounds other than infringement of the rights of the defendant under the Constitution, would it mean that Garda Murphy did not have authority to make the requirement referred to in s. 13(1)(b) of the Road Traffic Act 1994.

3. If the answer to either of Questions 1 or 2 is “Yes”, was Garda Murphy’s action unlawful on grounds other than infringement of the rights of the defendant under the Constitution?

4. Was Garda Murphy’s action in breach of any constitutional right of the defendant including her right to protection of her dwelling, private property, privacy, personal liberty and freedom of expression, either because it was not in accordance with law or otherwise?

5. If Garda Murphy’s action was in breach of any of the defendant’s constitutional rights,

(a) Must I exclude any evidence proffered by Garda Murphy regarding the defendant’s identity, condition, the alleged arrest, or the requirement under s. 13(1)(b)? and,
(b) Was the alleged arrest unlawful?
The summonses issued to the defendant complain that she:-

“On 8th January, 2005 at Palmbury Orchard, Togher, Cork, did drive a mechanically propelled vehicle No. 97 C 14138 in a public place while she was under the influence of an intoxicant to such an extent as to be incapable of having proper control of the said vehicle contrary to s. 49(1) of the Road Traffic Acts, 1961 as amended, and

on 8th January, 2005 at Togher Garda Station, Togher, Cork, being a person arrested under s. 49(8) of the Road Traffic Acts, 1961 having been required by Garda Frances Murphy, a member of An Garda Síochána, at Togher, pursuant to s. 13(1)(b) of the Road Traffic Act, 1994 to permit a designated doctor to take from her a specimen of her blood or at her option to provide for the designated doctor a specimen of her urine, did fail to comply with such a requirement contrary to s. 13(3) of the Road Traffic Act, 1994 as amended.”

It is common case that the defendant had been arrested by Garda Murphy, pursuant to the provisions of s. 49(8) of the Road Traffic Act, 1961 as inserted by
s. 10 of the Road Traffic Act, 1994, which enacts that a member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under that section, which includes the offence of driving a mechanically propelled vehicle in a public place while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.
In the case stated the learned District Court Judge records the evidence given to the court by Garda Murphy as follows:-

“She went to the Centra shop at Togher Road. As she approached the shop, she saw a white car coming out. This car mounted a nearby roundabout as it went around it and continued to Palmbury Estate. It was swerving on the road and never used its indicator lights. The patrol car followed at a safe distance and did not use lights or siren. There were pedestrians in the area. It continued to Palmbury Orchard at the bottom of Palmbury Estate. It drove into the driveway of a house almost hitting the house. It then reversed out to give the driver room to get out. Garda Murphy walked to the car, which had registration No. 97 C 14138. She spoke to the driver. It was a lady driver. Her speech was very slurred. She asked the driver about her driving and she kept saying she was sorry. She asked her to get out. She did so with a struggle as she was very unsteady. She said she had had four glasses of wine. Garda Murphy formed the opinion the driver was under the influence of an intoxicant to such an extent as to be incapable of proper control of a mechanically propelled vehicle in a public place. She asked for her name and address and cautioned her and at 10.15 pm she arrested her under s. 49(8) of the Road Traffic Act, 1961 – 1995 for an offence under s. 49(1), (2), (3) or (4).

… The defendant kept saying she was sorry and explained she had to go to the shop she wanted to go in home and asked the [witness] to let her alone. [The witness] said she did not want to handcuff Ms. O’Sullivan unless she had to. Ms. O’Sullivan came with her then. Nobody asked her to leave the property. She understood it was Ms. O’Sullivan’s house.”

In cross examination Garda Murphy said:-

“ … she made contact with the driver by alighting and walking towards her and that she beckoned to the driver to open the door.

She agreed that in her statement she had said simply that she opened the door. She remembers speaking to the driver of the car before she got out. It was put to her that there was no communication before she opened the door and she said that that was the first thing and she then spoke to the driver.

She was asked what authority she had to open the door. She said that she was of the opinion that the driver was under the influence of an intoxicant. She said that her opinion was formed from speaking to the driver and the driving.

She was again asked what authority she had to open the door and she said that she needed to speak to the driver about her driving.

She was asked whether she claimed any authority to open the door in the Road Traffic Act and she said that she needed to speak to the driver. She could not identify a provision in the Act so authorising her, but believed that she could do so if she needed to speak to the driver. It was put to her that there was no specific authority for doing so and she said that she needed to ascertain details and had to speak to the driver. She could not identify any express provision authorising her to do so.”

Section 39(2) of the Road Traffic Act, 1994 provides that a member of An Garda Síochána may for the purpose of arresting a person, [the italics are mine] under s. 49(8) or s. 50(10) of the Principal Act (that is, the Road Traffic Act, 1961), enter without warrant (if need be by use of reasonable force) any place (including the curtilage of a dwelling, but not including a dwelling) where the person is or where the member, with reasonable cause, suspects him to be.
In the instant case the learned District Court Judge did not find that the reason of Garda Murphy entering the driveway of the defendant’s dwelling was, “for the purpose of arresting” the defendant. On the evidence recorded in the case stated by the learned District Court Judge the only proper inference which could reasonably be drawn is that Garda Murphy initially entered onto the driveway, for the purpose of investigating the possibility that an arrestable offence had occurred. (see Director of Public Prosecutions (Dooley) v. Lynch [1998] 4 IR 437).
It was submitted by Counsel for the persecutor that if Garda Murphy entered the driveway of the defendant’s dwelling otherwise than for the purpose of arresting the defendant, she could do so lawfully relying upon of the principles stated by O’Flaherty J. (Finlay C.J., Egan, Blayney and Denham J.J.J. concurring) in Director of Public Prosecutions v. Forbes [1994] 2 I.R. 542 at 548, (a case stated by the Circuit Court for the opinion of the Supreme Court pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947). The learned Judge stated as follows:-

“It must be regarded as axiomatic that any householder gives an implied authority to a member of the garda to come onto the forecourt of his premises to see to the enforcement of the law or prevent a breach thereof. It will be clear that this case is not concerned with any question of entering a dwellinghouse and, therefore, there is not in the instant case any question of any form of implied waiver of any constitutional right. Further, like any implied authority, it is an implication which the evidence may, on occasion, rebut. Clearly, in this case, the gardai were acting in the execution of their duties. They saw a car which was driven suspiciously, to say the least; it went up a side road and into the driveway of a private dwelling. Could it be said what danger the driver of such a car might have posed for the occupants of that dwellinghouse? In the circumstances of this case, the gardai were clearly acting in the execution of their duties. This must be the acid test because they cannot be regarded as acting in the execution of their duties if they breach anyone's constitutional or legal rights (unless in an extreme situation, such as in the defence of life or limb). For them to have ignored the defendant's conduct on this occasion would have bordered on a dereliction of duty on their part. To suggest that they would be perfectly entitled to arrest the defendant if he was on the public road but not if he was on a third third party's property would constitute, as was suggested in the course of the debate before us, a massive absurdity.”

Counsel for the defendant submitted that if such principles applied, and he asserted that they did not, the failure of the defendant, – the learned District Court Judge having found that there was no necessity for Garda Murphy to initiate or attempt to communicate with the defendant by opening the car door, – to open the car door or window to Garda Murphy, who was in uniform, was evidence from which the only proper inference to be drawn by the court was that any implied authority to Garda Murphy to come onto the driveway of the defendant’s dwelling had been withdrawn by the defendant. Therefore, Counsel said, Garda Murphy was a trespasser, having no legal right to be or to remain on the driveway of the defendant’s dwelling or to open the door of her motor car and, by so remaining and acting was in breach of the defendant’s legal and constitutional rights.
In the case of Director of Public Prosecutions v. Forbes (above cited) the motor car which had been driven suspiciously in a public place, was driven onto the driveway of the private residence of a third party. The sole occupant then emerged from the passenger door of the car and ran away but was apprehended by members An Garda Síochána. He was unable to explain why he had driven onto the driveway of another persons dwelling. By contrast, in the instant case, as in the case of Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 (S.C.), the defendant drove onto the driveway of her own private dwelling. In the case of Director of Public Prosecutions v. McCreesh (above cited) the learned Circuit Court Judge found that the defendant did not give leave or licence to the member of the Garda Síochána to enter the driveway of his private dwelling. In the instant case no such finding was made by the learned District Court Judge, but it is clear, on the evidence recorded by him in the case stated, that no such leave or licence was given to Garda Murphy by Ms. O’Sullivan.
In the case of Director of Public Prosecutions v. McMahon [1987] I.L.R.M. 87 (S.C.), Finlay C.J. held that members of the Garda Síochána who entered a licensed premises without a search warrant for the purpose of investigating suspected offences under the Gaming and Lotteries Act, 1956 were, by reason of their intention in so entering which was outside the normal implied invitation of the owner of a licensed premises, trespassers on the premises.
In the course of his judgment in Director of Public Prosecutions v. Forbes (above cited), O’Flaherty J. at pp. 546 and 547 expressly referred to the decision in Director of Public Prosecutions v. McCreesh and cited the following passages from the judgments of Hederman J. at p. 254, and Griffin J. at p. 244:-

“If it had been intended by the Oireachtas to confer on a member of the Garda the power to make inroads on the property rights of citizens which are recognised and protected by the common law, and to enter on private property against the will of the owner and there arrest the owner, express provision should have been made for such power in section 49.” (Hederman J. p. 254), and:-

“Under the law as at present in force that power of arrest cannot be exercised if a driver succeeds in reaching his own premises, be they his private residence or his business premises, before the gardaí catch up with him. There must have been very many instances in which this has occurred, and the enforcement of the law has been frustrated. Although any change in the existing law is a matter exclusively for the Oireachtas, instances such as in the present case would appear clearly to warrant legislative intervention to prevent repetition thereof.” (Griffin J. p. 244).

O’Flaherty J. then concluded that it was clear from these quotations that the majority view in Director of Public Prosecutions v. McCreesh was confined entirely to the prohibition of arrest of a person on that person’s own premises, be they a dwelling house or otherwise.
Director of Public Prosecutions (Dooley) v. Lynch [1998] 4 IR 437, per Costello P., was also a case where the defendant drove into the property of a third party and was followed thereon by the members of the Garda Síochána.
Insofar as the provisions of s. 39(2) of the Road Traffic Act, 1994 were intended by the Oireachtas to resolve the problem for members of the Garda Síochána, identified by the Supreme Court in Director of Public Prosecutions v. McCreesh (above cited: Judgment delivered on 7th March, 1991), it did so only in respect of an entry onto the driveway of a private dwelling by a member of the Garda Síochána for the purpose of arresting a person, but not for the purpose of making enquiries or investigating the possibility that an arrestable offence had occurred.
In the case of Director of Public Prosecutions (Riordan) v. Molloy [2003] IESC 17, the Supreme Court appears to have extended the principles of implied authority to members of the Garda Síochána to come on to the curtilage of a private dwelling house to see to the enforcement of the law or prevent a breach thereof, from the case of a defendant pursued onto the driveway of the dwelling house of a third party to the case of a defendant pursued onto the driveway of his or her own dwelling house.
The facts of that case were that members of the Garda Síochána pursued a motor car which had approached a garda checkpoint, stopped, turned and then headed in the opposite direction. This motor car was driven onto the driveway of a private dwelling house which the defendant identified as his own. It was clear from the case stated that the members of the Garda Síochána only formed the opinion that the defendant had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place when he got out of the motor car in his own driveway. His speech was incoherent and slurred and there was a smell of alcohol from his breath. When asked to step out the car he stumbled and had to be supported by a garda. When told by the garda that he was being arrested he stated that the arrest was unlawful since it took place on his own driveway and he became abusive and had to be handcuffed and taken to the garda station. He was charged with an offence of refusing to give a blood or urine sample under the provisions of s. 13(3) Road Traffic Act, 1994. This charge was dismissed by the District Court Judge on the ground that the arrest of the defendant was unlawful as it had taken place on his own private driveway.
In the course of his judgment, McCracken J., (McGuinness and Geoghegan J.J. concurring), stated as follows:-

“8. I can see little or no distinction between that case, (

DPP v. McCreesh

) and the present case. It is clear from the case stated that the garda only formed the opinion that the defendant had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place when the defendant got out of the motor car in his own driveway. He was then told by the garda that he was being arrested and was cautioned and he told the garda that the arrest was unlawful since it took place in his driveway. It was only then that the garda physically restrained the defendant by handcuffing him.

9. I am quite satisfied that the defendant never submitted to being under restraint or, in the words of the judgment in

Director

Public

Prosecutions

v. McCreesh

[1992] 2 I.R. 239, never submitted to the compulsion. I am also quite satisfied that the words used by the defendant were quite clearly a withdrawal of any implied consent to the garda being on his driveway.

10. In those circumstances, I am satisfied that at the time of the actual arrest, that is the physical restraint of the defendant, the implied consent had been withdrawn, the garda was a trespasser and the arrest was unlawful.”

I believe that it is possible to demonstrate a distinction on facts between cases such as Director of Public Prosecutions v. McCreesh, Director of Public Prosecutions (Dooley) v. Lynch, Director of Public Prosecutions v. Forbes and the case of Director of Public Prosecutions v. Molloy. It appears to me to be somewhat of an affront to commonsense and a rather contrived basis for a significant reduction in personal property rights and liberties for a court to imply such an authority on the part of the intended object of a Garda Síochána investigation which could result in his or her arrset and conviction on foot of evidence obtained in the course of such an investigation. I am not at all convinced that the power to object and withdraw the implied authority is a sufficient safeguard: it seems to confer a legal advantagge on the aggressive, abusive, assertive and worldly-wise, as illustrated by the facts of the instant case as compared with those in Director of Public Prosecutions v. Molloy (above cited). The provisions of s. 39(2) of the Road Traffic Act, 1994 limit the power of entry without warrant by members of the Garda Síochána to the situation where an opinion has been formed before entry that the offence of driving a mechanically propelled vehicle in a public place while under the influence of an intoxicant to such an extent as to being incapable of having proper control of the vehicle had been committed and, the sole purpose of entering onto the private property is to arrest a person in connection therewith.
However, the decision of the Supreme Court in Director of Public Prosecutions v. Molloy (above cited) is binding on this court and it seems inescapable that the Supreme Court in that case considered that the members of the Garda Síochána had entered onto the driveway of Molly’s dwelling on foot of an implied authority from him, for the purpose of investigating whether an offence had been committed by him.
In my judgment, in the instant case, the mere failure by the defendant to open the door or the window of her motor car, – if indeed she had any reasonable opportunity of so doing before Garda Murphy opened the car door herself, – could not reasonably be regarded as evidence of a clear and intentional withdrawal by the defendant of this implied authority to members of the Garda Síochána to come onto the driveway of her dwelling house. The case of Director of Public Prosecutions v. McCreesh (above cited) and Director of Public Prosecutions (Riordan) v. Molloy (above cited) are examples of cases where the evidence was held sufficient to rebut the implied authority. In the former case the defendant told the member of the Garda Síochána that he was a trespasser and that he was on private property and should leave immediately. In the latter case the defendant told the garda that he could not arrest him as the arrest was unlawful as the garda had followed him into his driveway and, thereafter became very abusive and vigorously resisted arrest.
In the instant case had the defendant deliberately locked the car doors from inside the car and refused to open the same or the window of the car, or even if she attempted to hold the door of the car closed against Garda Murphy, it might be argued, – and I do not express an opinion on the matter, – that this was sufficient evidence of a clear and intentional withdrawal of the implied authority by conduct. However, this did not occur and, it would amount to baseless speculation on the part of the court to entertain the argument advanced that this might in fact have occurred or, the defendant might have instructed Garda Murphy to leave, but for the precipitate action of Garda Murphy in opening the car door without leave or licence. On the evidence recorded by the learned District Court Judge in the case stated, I find that it would not be reasonably open to a trier of fact to conclude that the defendant had said or done anything at all which could reasonably amount to a clear and intentional withdrawal of the implied authority to Garda Murphy to come onto the driveway of the defendant’s dwelling house.
Counsel for the defendant submitted in the alternative, that even if Garda Murphy had implied authority to come onto the driveway of the defendant’s dwelling, she did not thereby have authority to open the door of the defendant’s motor car without the defendant’s prior consent freely given.
The learned District Court Judge found that:-
(a) Garda Murphy opened the door of the car without making an attempt to communicate with the defendant prior to so doing and,
(b) That there was no necessity for Garda Murphy to have initiated her attempt to communicate with the defendant by opening the car door, rather than by seeking to initiate communication by word, sign or knock without opening that door.
In my judgment, if the members of the Garda Síochána have, by common law, an implied authority to come onto the driveway of a private dwelling to see to the enforcement of the law or prevent a breach thereof, that authority must also entitle them to do whatever is additionally necessary on that driveway for that purpose, provided they do not act arbitrarily, capriciously or in an unlawful manner. The duty of members of the Garda Síochána to do everything in their power to detect and combat “drunk driving – a crime which can have horrific consequences for the public” is stressed in Director of Public Prosecutions (Stratford) v. Fagan [1994] 2 I.L.R.M. 349, per Blayney J. (Finlay C.J. and Egan J. concurring), and see also: Hayes v. Minister for Finance [2007] 1 ILRM 442 at 455, per Kearns J. (Hardiman J and Finnegan J. concurring). In such circumstances, it would be illogical and wholly anomalous that a member of the Garda Síochána having in exercise of such an implied authority followed a mechanically propelled vehicle onto the driveway of a private dwelling, because she or he, having observed the manner in which it was driven in a public place was suspicious that the driver was under the influence of an intoxicant, could not then, without acting in breach of the constitutional or legal rights of the occupant of that motorcar, or the owner of the dwelling, open the door of the car without prior permission in order to speak to the occupant of the car.
In my judgment it would be absurd if a member of the Garda Síochána who has power to approach and speak to a member of the public, even prior to forming an opinion that grounds exist for suspecting that such person was committing or planned to commit an offence, (Director of Public Prosecutions v. Cowman [1993] 1 I.R. 335, per O’Hanlon J.) could not, in the circumstances to which I have adverted, lawfully open an unlocked door of that motor car for the purpose of communicating with the person believed to be in charge of the vehicle, and without using any force or acting contrary to the indicated wishes of that person.
In my judgment, an unexpressed authority of this sort, implied by law, must be very narrowly construed and strictly limited to the defined purpose for which it was implied. In the instant case, I am satisfied that the opening of the motor car door by Garda Murphy in the circumstances found by the learned District Court Judge, was with the sole object of enforcing the law. Even though Garda Murphy did not first invite the defendant to open the door or the window of the car herself and, this may or may not be an infringement of an internal Garda Síochána guideline with regard to the correct treatment of members of the public, I am fully satisfied that her action in opening the door of the motor car was not arbitrary, capricious or unlawful. In this regard, I believe that it is very significant that the defendant herself made no criticism of or complaint regarding the action of Garda Murphy in opening the door of the motor car on the occasion.
I am satisfied, in the present state of the law, that Garda Murphy was acting within the scope of the implied authority and, was not acting illegally or in breach of any constitutional right of the defendant, when she entered and remained on the driveway of the defendant’s private dwelling house and, when she opened the door of the defendant’s motor car.
The court therefore answers the questions submitted for its consideration by the learned District Court Judge as follows:-
1. Does not arise.
2. Does not arise.
3. Does not arise.
4. No
5. Does not arise.