This
is an appeal by way of Case Stated which arises in the following circumstances:
On
24 April 1995 Garda Dooley and Garda Greene were in an official patrol car in
the area of Tierquinn in the County of Cavan when a car was driven straight
across the road without yielding the right-of-way. This car was followed by the
patrol car and thereafter a high-speed chase occurred. The car was then driven
into a yard known as Nulty's Yard (a machinery yard) and it was followed by the
patrol car. In Nulty's Yard an arrest took place under
section 49(8) of the
Road Traffic Act 1961. The Respondent was charged under
section 49 with driving
with an excess of alcohol and with other offences.
On
9 November 1995 the hearing of these charges took place in the District Court
in Cavan and the charge relating to driving with an excess of alcohol was
dismissed. As a result of a request, a Case Stated was prepared and filed under
the rules of the High Court seeking the opinion of this Court on the following
question:
"Whether
I was correct in law in dismissing the charge under
Section 49 of the
Road
Traffic Act, 1961, as amended, on the grounds that at the time when the Gardai
entered the private yard, where the arrest ultimately took place, that Garda
Dooley had not formed a valid opinion which could lead to the arresting of the
Respondent under
Section 49(8) or
50(10) of the
Road Traffic Act, 1961."
The
point raised on this appeal is a net one. It is common case that the arrest
took place on private property. The legislature has made statutory provision
for the arrest of persons on private property under
section 39(2) of the
Road
Traffic Act 1994:
"A
member of the Garda Siochana may for the purpose of arresting a person under
section 49(8) or 50(10) of the Principal Act, 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."
If
a garda enters on private property (as referred to in the section) for the
purpose of arresting a person, the effect of
section 39(2) of the
Road Traffic
Act 1994 is that the arrest is valid in so far as the entry on private property
is concerned.
What
has been argued on the Respondent's behalf in the District Court and in this
Court is that the entry in this case was not validated by the section because
it was for the purpose of investigating the possibility that an arrestable
offence had occurred. It is therefore claimed that the proceedings should have
been dismissed because of the unlawful nature of the arrest and that,
accordingly, the order made by the District Justice was the correct one.
On
behalf of the Director of Public Prosecutions it is agreed that the entry was
not validated by the section. However, it is urged on behalf of the Director
that the entry was not illegal because it complies with the principles of law
established by the Supreme Court in DPP v Forbes [1994] 2 IR 542. At page 548
of the report the judgment of O'Flaherty J reads:
"Section
49, sub-s 6 of
the Act provides that a member of the Garda Siochana may arrest
without warrant a person who in the member's opinion is committing or has
committed an offence under the section. The offence, of course, must be
committed in a public place but provided the garda does not breach any
constitutional or legal right of another, he is entitled to go on other
property to effect an arrest. Here there is no question that the gardai were
trespassers. 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."
It
is therefore urged on behalf of the Director that there was no trespass in this
case by the gardai; that there was an implied consent by the owner of Nulty's
Yard to the entry in the circumstances of this case; that on the principles
established in DPP v Forbes, not under the statutory power granted by
section
39(2) of the
Road Traffic Act 1994, the entry was valid and the subsequent
arrest lawful.
It
is submitted on behalf of the Respondent that the totality of the power of
entry for the purpose of effecting an arrest (the phrase used by the
Respondent's Counsel) is contained in
section 39 and that the principles
established in DPP v Forbes no longer apply as a result of the enactment of the
1994 Act.
I
cannot agree with this submission. It seems to me that the section made lawful
what might otherwise not be lawful. However, the section does not make unlawful
acts which are, according to Forbes, perfectly lawful. When gardai enter on
private property, property which is owned by someone other than the arresting
gardai, there is an implied consent to enter the property to allow the gardai
to carry out their duties. In my view there is no illegality at all in what was
done in this case. The gardai were not trespassers when they entered Nulty's
Yard and there was no invalidity in the arrest.
A
second issue raised on behalf of the Respondent is that the decision of the
learned District Justice was correct for the following reason: It is claimed
that there was a failure of the necessary proof to support a conviction in this
case. Counsel for the Respondent argued that the burden was on the State to
show that the accused had no legal interest in the private property on which he
was arrested and that this burden could have been discharged by calling the
owner of the property to say that the accused had no legal interest in it. It
is said that the lawfulness of the arrest had not been established in the
absence of such proof. Again, I disagree. On the evidence in this case it seems
to me that the State has established beyond a reasonable doubt that the arrest
was not in breach of any of the accused's constitutionally protected rights,
including the right to the inviolability of a dwelling, and that the onus which
was on the prosecution had been properly discharged.
I
must conclude, therefore, that the question raised in the Case Stated should be
answered in the negative.
