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Cite as: [2014] IEHC 102
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Judgment Title: Director of Public Prosecutions -v- Czyzak Neutral Citation: [2014] IEHC 102 High Court Record Number: 2013 2042 SS Date of Delivery: 07/03/2014 Court: High Court Composition of Court: Judgment by: Kearns P. Status of Judgment: Approved |
Neutral Citation: [2014] IEHc 102 THE HIGH COURT [2013 No. 2042 SS] IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 THE DIRECTOR OF PUBLIC PROSECUTIONS PROSECUTOR AND
PREZEMYSLAW CZYZAK RESPONDENT JUDGMENT of Kearns P. delivered on the 7th day of March, 2014 This matter comes before the Court by way of case stated by Judge Ann Watkin of the District Court pursuant to s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961, and the Rules of the District Court. It concerns the validity of an arrest under s. 5 of the Road Traffic Act, 2010. The facts may be summarised as follows:- The accused appeared before the learned District Judge at the Criminal Courts of Justice, Dublin 8 on the 18th June, 2013, on foot of a charge sheet alleging that on the 4th April, 2013, at Ballymun in the City of Dublin, while being a specified person under Part 2 of the Road Traffic Act 2010, he was in charge of a mechanically propelled vehicle with the intent to attempt to drive the said vehicle (but not driving or attempting to drive) while there was present in his body a quantity of alcohol such that, within three hours after being so in charge, the concentration of alcohol in his breath exceeded a concentration of 9 micrograms of alcohol per 100 millilitres of breath, to wit, 82 micrograms per 100 millilitres of breath, contrary to s. 5(4)(b) and (5) of the Road Traffic Act 2010. The accused was also charged on a separate charge sheet with a separate offence under s. 13 of the Road Traffic Act, 2010, which is not the subject matter of the present case stated. The facts stated to have been “proved or admitted or agreed and as found by the District Judge” are as follows:-
Ms. Staunton, for the prosecution, submitted that Garda Eddery had given evidence of his opinion that the accused had intent to drive and had given evidence that the accused had told him he was intending to drive home. She also submitted that the Garda had told the accused he was arresting him for being ‘drunk in charge’ and that, further, it must have been obvious to the accused what he was being arrested for, given the surrounding circumstances, keys in the ignition, engine running and lights on. I disagreed with these submissions for the reasons set out in detail above and found that the circumstances were not such as to make it obvious to the accused why he was being arrested. Having so found, I therefore held the arrest to be unlawful. I therefore dismissed both charges. I held that the arrest was not a valid arrest because I was of the view that the Garda had not given a sufficient communication of the reason for the arrest. I then dismissed both charges.”
(b) If the answer to bracket (a) above is ‘yes’, did I then have discretion to dismiss both charges against the accused in the particular circumstances of this case?” SUBMISSIONS In the instant case the finding made by the District Court that the accused did not understand the reason for his arrest was solely a question of fact. The finding that the accused understood his arrest to have what is nebulously phrased as “something to do with drink and driving” is not proof that he understood in substance the reason for his arrest. No issue of law arises for consideration. The District Judge had accurately analysed that “intention to drive” is the essential element of the offence. She had further correctly identified that the intention to drive is that which elevates being intoxicated whilst in charge of a vehicle to a criminal offence. There is no offence in Ireland of being in charge of a vehicle while intoxicated. This crucial distinction was appreciated and understood by the District Judge and it cannot reasonably be stated that this analysis went so far as to constitute a ruling that the mens rea of any suspected crime must be relayed to a person whom a garda proposes to arrest. The District Judge had merely indicated a view that the most essential and defining element of the offence should be communicated to a suspect. On behalf of the prosecution it was submitted that it must have been obvious to the accused when told he was being arrested for being “drunk in charge” what he was being arrested for, given the surrounding circumstances, namely keys in the ignition, engine running and lights on. There is no requirement for a garda to set out all the elements of the offence, including the mens rea. The only reasonable possible inference from the facts was that it was obvious to the accused given the circumstances and his stated intention of “heading home”, why he was being arrested and there was no need to particularise or subdivide the reasons for arrest any further. The issue of whether the arrest was valid in this case was a clear question of law. There was no conflict about what was communicated to the accused at the time of the arrest. The accused had not given evidence because the learned District Judge essentially gave a direction on the invalidity of the arrest. In those circumstances there was absolutely no evidence before the judge that the accused did not understand the reason for the arrest or indeed as to what the accused might have thought were the reasons for his arrest. However, the judge had clearly accepted that he knew his arrest had to do with drinking and driving. That was sufficient, and it was incorrect in law for the learned District Judge to make the finding that an order for an arrest to be valid certain fixed words must be used in all cases. Insofar as the respondent based his arguments on findings of fact made by the learned District Judge, the same were wholly unsupported by evidence and on this ground also an error in point of law had arisen. For the District Judge to hold that the arrest was invalid, there must have been clear evidence before the court that the accused did not understand the reason for his arrest because the explanation offered by the garda fell short of what was required. This could not be a subjective test of the appellant’s belief, as it would leave the validity of every arrest in doubt if such an approach were to be adopted.
DISCUSSION
‘The above citations, and others which are referred to by my noble and learned friend, Lord du Parcq, seem to me to establish the following propositions. (l) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) 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. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restrains on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.’ It is clear from the fourth of these propositions that a garda in making an arrest does not have to use technical or precise language. Provided the arrested person knows in substance why he is being arrested the arrest is valid. So telling the respondent that he was being arrested for an offence of drunk driving was a sufficient communication of the reason for his arrest since in my opinion that could mean any of the three offences under the section. It told the respondent in substance why he was being arrested. Furthermore, in view of proposition 3, which dispenses with the necessity of giving any reason where the circumstances are such that the person arrested must know the general nature of the offence for which he is being detained, it must be doubtful if Garda Cloughley was required to give any reason at all. As the respondent had been required to blow into the breathalyser, and the results had been positive, the respondent must have been well aware of why he was being arrested. However, as the respondent was in fact informed of why he was being arrested, this question does not arise.”
Indeed, the facts of the case of DPP v. Thomas Moloney [2001] IEHC 178 (Unreported, High Court, Finnegan P., 20th December, 2001) are similar to the facts of the present case. In Moloney, the prosecuting guard observed the accused’s vehicle pulled up on a grass verge with the engine running and the keys in the ignition. He got a smell of alcohol from the accused and his speech was slurred. He gave a breathalyser sample which was positive, whereupon the Garda arrested him under the then s. 49 of the Road traffic Act 1961 and said he was arresting him for “drunk driving”. Notwithstanding that the arrest was under s. 49, the accused was later charged under the then s. 50 of being “drunk in charge of the vehicle”. By way of case stated, the High Court was asked to decide whether a person arrested under s. 49 for drunk driving could later be charged with being drunk in charge under s. 50. Finnegan P. held that he could. However, he firstly examined the requirement that an accused know the reason for his arrest. He stressed that no technical precision is necessary and all that is required is that the accused is made aware of “the facts alleged to constitute crime on his part”. He stated as follows:
‘These and similar considerations lead me to the view that 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’.”
That the foregoing propositions represent the law in this jurisdiction is clear from the decision of Blayney J. in D.P.P. v. Mooney [1992] 1 I.R. 548 and of Geoghegan J. in D.P.P. v. Connell [1998] 3 1.R. 62.”
‘Driving’ includes managing and controlling ... and ‘driver’ and other cognate words shall be construed accordingly.’ 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) [drunk driving] 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) [the section dealing with being drunk in charge] of the Acts.” In this regard, I cannot see how it could possibly be suggested that the test in question is a subjective one, given that the application of any such approach would mean that every arrest was liable to be impugned on the subsequent say-so of an accused person who would have every interest in advancing the contention that he did not properly understand why he was being arrested. In so far as the facts of this case were concerned, the learned District Judge had no evidence from the respondent to place in the balance with that offered by the prosecuting garda which would suggest that the respondent failed to understand the reason for his arrest as described by the garda member. The first question therefore in the case stated is one which does not admit of a straightforward answer. This is because the Court is entitled to consider whether incorrect inferences were drawn from the evidence adduced before the learned District Judge. In this regard, I am putting to one side entirely any suggestion advanced by the prosecution that the learned District Judge holds to a view that some sort of “fixed formula of words” must be deployed when making an arrest under s. 5 of the Act. The learned District Judge did not tie herself into any such rigidity in the case stated. However, I am of the view that there was in reality no evidence to support her conclusion that the respondent misunderstood or could have not understood why he was being arrested. Even in the context of a case stated, the Court must take such considerations into account, as was made clear by O’Hanlon J. in D.P.P. v. Gray (Unreported, High Court, O’Hanlon J., 8th May, 1987) at p.3-5:-
‘The opinion arrived at must, of course, be a reasonable one, and must be one which results from an honest belief come to after facts have been ascertained and considered.’ The learned District Justice appears to me to have rejected the evidence of the Garda as unreasonable because it appeared to him (the District Justice) that there were other possible explanations for all the features of the defendant’s conduct which were described by the Garda in evidence, not necessarily involving over-consumption of alcohol. This, however, could be put forward in every case, no matter what factual evidence led up to an arrest … I am of opinion that the learned District Justice erred in law in concluding – as he appears to have done – that the possibility of innocent explanations for the matter which gave rise to the Garda’s opinion was sufficient to invalidate that opinion. I would also hold that the findings of fact made by the learned District Justice on which he based his decision were wholly unsupported by evidence insofar as I can glean from the recital in the case stated, and on this ground also an error in point of law arose. On the evidence given, even having regard to the criticisms made regarding same by the District Justice, I am satisfied that the Garda had ample grounds for forming the opinion which he says he formed, that the defendant was incapable by reason of consumption of intoxicant of having proper control of the vehicle, and that he did form such opinion, and was reasonable in doing so.”
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