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Cite as: [1998] IESC 30

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Denton v. D.P.P. [1998] IESC 30 (29th October, 1998)

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O‘Flaherty J.,

Murphy J.,

Barron J,

(110/98)

IN THE MATTER OF SECTION 2 OF SUMMARY JURISDICTION ACT, 1857,

AS AMENDED AND EXTENDED BY SECTION 51

OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961,

AND IN THE MATTER OF THE CASE STATED

BETWEEN:

ALICE DENTON

Appellant

.V.

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Judgment (ex-tempore) delivered on the 29th day of October, 1998, by O’Flaherty J.

1. This is an appeal brought by the respondent, Alice Denton, from the judgment of Mr. Justice McCracken of 1st April, 1998, in regard to the answer that he gave to the first of two question which were put before him by District Judge David Riordan in the course of a case stated.

2. To set the background, I can go to the case stated in which all the relevant details are set forth in the clearest possible way. It is a great help for any appellate court to have a case stated so succinctly and so clearly.

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3. The learned District judge sets forth that he was hearing a case in the Dublin Metropolitan District on 1st May, 1996, in which the Director of Public Prosecutions was the prosecutor and Alice Denton was the accused. The charge laid against Miss Denton was that on the 22nd July, 1995, at St. Peter’s Road, Walkinstown, Dublin 12, in the Metropolitan District, she drove a mechanically propelled vehicle in a public place, while there was present in her body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in her blood exceeded a concentration of 80 mg of alcohol per 100 ml of blood. This was contrary to s. 49 (2) and s. (6)(a) of the Road Traffic Act, 1961, as inserted by s. 10 of the Road Traffic act, 1994.

4. The district judge then goes on to set forth the following facts which were proved or admitted before him:

(1) Garda Fergal Harrington of Crumlin Garda Station, Dublin was driving a patrolcar on the 22nd July, 1995 and at 4.30 am at St. Peter’s Road, Walkinstown, when he saw a red Ford Escort car, registration number 899 WZO, being driven from a garage forecourt onto St. Peter’s Road. It then turned right in the direction of Garda Harrington’s vehicle.

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(2) This vehicle was on the wrong side of the road and did not have any headlights on, although it was dark at the time. Garda Harrington flashed his headlights at this car and the car swerved to his right and came to a sudden and abrupt halt in the middle of the road.

(3) Garda Harrington got out of his patrol car and approached the driver of the car and asked her name and address. She gave her name as Alice Denton of 84 Palmerstown Woods, Clondalkin, Dublin 10. Garda Harrington asked her to explain her driving.

(4) At this stage, the driver became abusive towards Garda Harrington. He asked her to step out of the car. As she did so, she fell against the car.

(5) While talking to her, Garda Harrington got a strong smell of intoxicating liquor from her breath. He noted that her eyes were glossy and her speech was slurred. From this he formed the opinion that Miss Denton had consumed an intoxicant to such an

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extent as to be incapable of having proper control over a mechanically propelled vehicle in a public place.

(6) Garda Harrington then arrested Miss Denton under s. 49 (8) of the Road Traffic Acts, 1961 to 1994, for an offence under s. 49 (2) or 49 (3) of the said Act. He then informed her in plain English that he was arresting her for drunken driving. Garda Harrington stated that the time of arrest was 4.35 am on 22nd July, 1995.

(7) Garda Harrington placed Miss Denton in the rear of the patrol car and conveyed her to Crumlin Garda Station where he handed her over to Garda Jean Leahy for the completion of the custody record. The time of arrival at the station was 4.40 am.

5. The next part of the case stated deals with what took place subsequent to Miss Denton’s arrival at the garda station as regards the taking of the relevant sample and the result of the analysis when it came back from the Medical Bureau of Road Safety which showed a concentration of 156 ml of alcohol per 100 ml blood. Nothing turns on that sequence of events.

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6. An application to dismiss the case at the conclusion of the prosecution case was refused and the accused then gave evidence. She stated that her solicitor had been furnished with a copy of the custody record which had been completed at Crumlin garda station. This was handed into Court and the copy showed the time of arrest as being 4.25 am.. The custody record is something that is provided for in the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987; S.I. No. 119 of 1987.

7. A submission was then addressed to the District Judge which was to the effect that here there was a contradiction in the case. The guard had given the time of arrest at 4.35 am and here was the custody record showing a time of 4.25.am.

8. It should be stated that, of course, the custody record was not made out by the arresting garda. It was presumably made out by the officer in charge of the garda station at the time.

9. It was never put to Garda Harrington that there was a contradiction between his evidence and the custody record. That is the first thing to be said.

10. In any event, it was submitted to the District judge that here were these two contradictory matters that could not stand together and he was invited to say that he should have a reasonable doubt about the matter and this is what he found:

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“I informed the Court that in my view two different times had been proffered by the prosecution as to the time of arrest and that in the circumstances I had to allow for some room for doubt and accordingly I dismissed the prosecution.”

11. He then went on to recite:

“At the request of the prosecutor, I now state for the opinion of the High Court the following question of law:

(i) Whether in light of the evidence given before me and which was not ruled inadmissible, I was correct in law in holding that the Prosecution were proffering two different times for the arrest of the accused and, as a consequence, that the case must be dismissed?

(ii) If the answer to question (i) is ‘yes’ whether I was correct in law in ruling inadmissible the question posed to the accused by the solicitor acting for the prosecution and the answer of Miss Denton as to whether she accepted that Garda Harrington had given the correct time of arrest?”

12. In regard to this second question, this arose when a question was put by the solicitor representing the Director of Public Prosecutions along the lines apparent from the case stated. In the light of the clear opinion that I have

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formed as to how the first question should be answered it is not necessary to spend time on this question.

13. The learned High Court judge ruled as follows:

“What the judge had before him was first hand evidence of the guard that he stopped and arrested the defendant at 4.30 am and that is the only evidence before him. The custody record filled in an hour later is not evidence of what happened but only evidence of what was written by the member-in-charge. It is not evidence of the truth of what was written down. In the absence of specific evidence the custody record is not evidence. The district judge was bound to hold with the time in accordance with Garda Harrington’s evidence. The prosecution did not offer two different times of arrest. The district judge was therefore incorrect in law in holding that the prosecution did. Accordingly, the second question does not arise.”

14. He made an order that the District judge should enter into continuance of the case. I would uphold the essential finding made by the learned High Court judge. It seems to me that the submission advanced on behalf of the appellant is unsustainable. Leaving aside the quality of the custody record as evidence in the circumstances that it was not put to the garda - and I believe that would have been the correct way to approach matters - leaving aside the fact that it was not proved, and taking it at its face value, it did give a time of 4.25 am.

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15. Mr. Giblin, S.C., invites us to build on that and to say that if the judge was entitled to have a reasonable doubt about the time and that meant that the time 4.25 am as the time of arrest should stand. If 4.25 am is the accepted time, then the correct sequence must be that the garda arrested the woman before he had

formed the opinion that she was drunk and that would vitiate the whole proceeding.

16. But that is to put the entry in the custody record totally out of context and to give it an importance it does not have. The garda had given the clearest possible evidence that he formed the opinion of the woman’s drunkenness in advance of arrest; he produced chapter and verse - and very strong chapter and verse it was - as to the unfitness of this woman to drive a car on that occasion. He formed that opinion and then he arrested her. That finding is there in the case stated.

17. The inexorable result of that must be that the judge would have to hold that everything was in order as it is conceded by the appellant’s counsel that all the requisite procedures under the Act for taking the sample were complied with.

18. So, in the circumstances, the appeal should be dismissed.