[New search]
[Printable RTF version]
[Help]
D.P.P. v. Morrisey [1998] IEHC 178 (15th December, 1998)
THE
HIGH COURT
No.
1998/332 SS
IN
THE MATTER OF THE SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AND IN THE
MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961.
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA FRANCES DUNPHY)
APPELLANT
AND
SEAN
MORRISSEY
RESPONDENT
JUDGMENT
of Mr Justice O'Higgins delivered the 15th day of December, 1998.
1.
This
is a Case Stated by Judge William Harnett pursuant to the Summary Jurisdiction
Act 1857 as extended by Section 51 of the Courts (Supplemental Provisions) 1961
on the application of the Appellant who is dissatisfied with his determination
of the above proceedings as being erroneous in point of law. The relevant
salient facts are contained in paragraph 2, a,b,c,d,e,f,g,h,i,and p of the Case
Stated which read as follows:-
"The
facts proved or admitted were as follows:-
a. Garda
Frances Dunphy a member of the Garda Siochana stationed at Kilkenny Garda
Station, gave evidence that on the 25th November 1996 she was on duty as the
observer in the official patrol car. She was accompanied by Garda Mark Wall.
At approximately 3 a.m. she observed a Rover 400 motor car, Registration Number
96-KK-1624
pulling
away from the Sceilp Inn, Callan Road, Kilkenny, heading towards the roundabout
on Callan Road, a public place.
b. Garda
Dunphy noticed that the driver had failed to turn on the lights of the said
vehicle. They followed this vehicle which headed out the Kells Road towards
Kells Village. As they followed the vehicle they noticed the car was being
driven on both sides of the road. At this point they turned on the flashing
blue light in order to alert the driver that Garda Dunphy wanted him to stop.
Garda Wall had difficulty over-taking the car. Garda Wall flashed the
headlights of the motor car. However, the driver failed to stop.
c. About
half a mile down the road the driver of the car put on his right indicator (and
it was at this point that Garda Wall realised that there was a house on the
right-hand side of the wall, just a short distance away). Garda Wall overtook
the vehicle and blocked his path into his home.
d. At
3.10 a.m. they stopped his car at Donaghmore, Kells Road, Kilkenny. Garda
Dunphy proceeded to the car and spoke to the driver. The driver rolled down
his window. There was a smell of alcohol coming from the vehicle. Garda
Dunphy demanded production of the driver's licence. The driver informed her
that he had not got it with him. Garda Dunphy asked him his name and address
which he gave as Mr Sean Morrissey of Donaghmore, Kells, Kilkenny, (the
Respondent herein).
e. As
Garda Dunphy spoke to the Respondent she got a smell of alcohol from his
breath. She asked him to step out of the car. As Garda Dunphy was talking to
the Respondent at the rear of his car she got a strong smell of alcohol from
his breath. The Respondent became very aggressive and informed her that "if
you take this any further you're in trouble. I know lots of the lads up at the
station".
f. At
that point Garda Dunphy cautioned the Respondent as follows:-
"You
are not obliged to say anything unless you wish to do but anything you do say
will be taken down in writing and may be given in evidence". Garda Dunphy
formed the opinion that the Respondent had consumed intoxicating liquor from
the smell of alcohol and her observations.
g. Garda
Dunphy then made the requirement for the Respondent to provide a specimen of
his breath in accordance with Section 12(1). She informed him of the
consequences of refusal or failure to comply. He agreed to provide a specimen
of his breath, Garda Dunphy then required the Respondent to accompany her to
the patrol car in order to carry out the test.
Garda
Dunphy handed the Respondent the alcolyser directing him on its use, not to
hold it by the glass and to continue blowing into it until she informed him to
stop. The Respondent began blowing into the apparatus, at which time Garda
Dunphy noticed that the breath was not going into the bag. She took the
apparatus from him and disassembled it at which time she found that one end of
the glass rod was not properly cut. She cut the rod and assembled the
apparatus. She again made the requirement of the Respondent for him to provide
for her a specimen of his breath in accordance with Section 12(1). She
informed him of the consequences of refusal or failure to comply with the
requirement. The Respondent agreed to provide a specimen of his breath. Garda
Dunphy made the breath rest requisition at 3.12 a.m. The Respondent provided
the specimen at 3.15 a.m. the alcolyser gave a positive result.
h. At
3.18 a.m. as a result of the alcolyser and her observations Garda Dunphy formed
the opinion that the Respondent was incapable of having proper control of his
car due to the fact that he had consumed alcohol. She told the Respondent that
she was of the opinion that he had committed an offence under Section 49(2) and
49(3) of the Road Traffic Acts 1961/64 and that she was arresting him pursuant
to sub-Section 8 of this Section. Garda Dunphy then told the Respondent in
simple English that she was arresting him for drunk driving. She then
cautioned him and he had no reply.
i. Garda
Dunphy then placed the Respondent in the patrol car and conveyed him to
Kilkenny Garda Station. They arrived at the station at 3.25 a.m. She informed
Garda William G Powell, member in charge as to the reason for arresting the
Respondent, the location and time of arrest.
p. At
the close of the Prosecution case Mr Eugene O'Sullivan, Solicitor for the
Defendant/Respondent asked for a direction from me and submitted that the
Prosecution, on the evidence of Garda Frances Dunphy, had failed to show beyond
a reasonable doubt, that the place where Garda Dunphy had spoken to the
Defendant, formed the opinion of the consumption of alcohol by the Defendant,
administered the breathalyser to the Defendant and arrested the Defendant was
in fact a public place. Mr O'Sullivan conceded that reference had been made
earlier in the evidence of Garda Dunphy that when she first observed the
Defendants vehicle it had been in the vicinity of the Sceilp Inn, Kilkenny,
which is situate in a public place, but that no reference thereafter had been
made by Garda Dunphy regarding a public place. Supt. Duffe, for the
Prosecution in response to this submission responded that Garda Dunphy had
stated in her verbal evidence that when she arrested the Respondent, she stated
that she had arrested him for an offence in a public place. Supt. Duffe
requested that the Garda be recalled to clarify this aspect of her evidence.
To this first submission I informed Superintendent Duffe that I had taken
careful note of the evidence and was satisfied that at the point/place of
detection and arrest, Garda Dunphy had made no reference whatever to the
vicinity of where this had occurred as being in a public place. As to the
second submission or request that I allow Garda Dunphy to be recalled, I
declined this request as I considered that the Prosecution had informed the
Court that the case was complete, legal submissions had been made and argued,
and I should exercise my discretion in not allowing the State to re-open the
case and recall the witness to give further evidence. The opinion of the High
Court is sought as to whether I was correct in law in dismissing the said
charge, in the circumstances as set out above."
2.
The Case Stated is dated the 24th February, 1998.
3. No
issue is taken by the Appellant in relation to the learned District Judge's
failure to allow the Prosecution to recall the Garda. Furthermore, the version
of the facts as set out by the learned District Judge is not challenged. The
sole issue is in relation as to whether the learned District Judge was correct
in law in dismissing the charge on the basis that the Prosecution has failed to
show beyond reasonable doubt that the place where Garda Dunphy had spoken to
the Defendant, formed the opinion of the consumption of alcohol by the
Defendant, administered the breathalyser to the Defendant, and arrested the
Defendant, was in fact a public place.
4. Mr
Collins for the Director of Public Prosecutions, submits that the learned
District Judge was incorrect in his determination and was wrong in law in
dismissing the case. He argues that since the evidence was such as to raise a
prima facie case, it was for the Defendant to challenge the case that had been
made. In default of such challenge, he submits, the learned District Judge was
in error in dismissing the case. Mr Gardiner, for the Respondent, submits that
the decision was a decision made on facts, made by the learned District Judge.
It was entirely a matter for him, as to whether he was satisfied beyond
reasonable doubt, and that he was therefore entitled to come to the conclusion
that he did.
5. The
onus is on the Prosecution to prove that the driving, the administration of the
breathalyser and the arrest took place in a public place see
A.G.
(McLoughlin -v- Rhatigan)
(1965) 100 ILTR 37 and
DPP
-v- Joyce
[1985] ILRM 206 a Supreme Court decision. I also accept as being well settled
law that it is not the function of the High Court to interfere with decisions
of fact made by a District Judge, see
D.P.P.
-v- Thomas Nangle
[1984] ILRM page 171.
6. I
have been referred to the case of
DPP
-v- Collins
[1981] ILRM 447 a judgment of the Supreme Court and a passage of the judgment
of Henchy J at
page
452.
"While
the legal or persuasive burden of proof in a criminal case rests on the
prosecution
(save where a Statute provides otherwise), the prosecution will
have
discharged their evidential burden if they have produced sufficient
evidence
to raise a prima facie case."
7. The
question to be determined in this case is whether the prosecution had adduced
such evidence as is referred to in the judgment of Henchy J. The evidence
established the following:-
* That
the vehicle was observed going to the roundabout on Callan Road - a
public place.
* That
the Garda vehicle followed the Respondent's car for a distance
which
appears from the Case Stated to be about half a mile on the
8. Kells
Road towards Kells Village.
* That
Garda Wall overtook the Respondent's car blocking the path to
the
Respondent's home.
9. There
was evidence that the vehicle was in a public place near the roundabout on the
Callan Road, and evidence that the Garda vehicle pursued it for approximately
half a mile down the Kells Road towards Kells Village. In those circumstances
I consider that it was unnecessary to give evidence that the vehicle continued
to be in a public place at the precise place where the car was stopped, in
default of evidence to the contrary or on which the contrary could be inferred.
10. As
Henchy J. said in the
Collins
case at page 452:-
"Where
... the prosecution have adduced evidence showing the existence of all the
elements necessary for the commission of an offence, and the defence wish to
contravert or cast the necessary doubt on the prosecution case by suggesting
the existence of a factor which would justify an acquittal, the evidential
burden of that factor passes to the defence"
11. The
submission made by the Defendant and accepted in the District Court had
inherently in it the suggestion that the motor vehicle could have left the
public place at some stage, prior to the arrest. There is no evidence in the
Case Stated to support this proposition. As Henchy J. observed in the Collins
case at page 452:-
"This
form of defence by suggestion is well known in the Courts and decided cases
show that it has received a short shrift".
12. I
consider that since the prosecution had adduced evidence showing the existence
of all the elements necessary for the commission of the offence, if the defence
wished to cast the necessary doubt on the prosecution case by suggesting the
existence of a factor which would justify an acquittal, the evidential burden
passed to the Defence.
13. In
my opinion, therefore, the learned District Judge was not correct in dismissing
the case.
© 1998 Irish High Court
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/1998/178.html
