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D.P.P. v. Duffy [1999] IEHC 173; [2000] 1 IR 393 (4th June, 1999)
THE
HIGH COURT
1997
No. 1930 SS
IN
THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR
AND
MICHAEL
OLIVER DUFFY
ACCUSED
Judgment
of Mr. Justice Quirke delivered on the 4th day of June, 1999
This
matter comes before the Court by way of a Consultative Case Stated pursuant to
Section 52 of the
Courts (Supplemental Provisions), Act, 1961 by District Judge
William Harnett, a Judge of the District Court assigned to the District Court
area of Callan, District No. 22 in the County of Kilkenny.
THE
FACTS
The
material facts are not in issue and can be summarised as follows:-
(1) The
accused came before the learned District Judge on the 12th day of February,
1997 on foot of a summons issued on the 17th day of January, 1997 alleging that
the accused did on the 5th day of January, 1997 at Ballyduggan, Mullinahone, in
the County of Tipperary, a public place, drive a mechanically propelled
vehicle, to wit, motorcar registered number 95 TS 975 in a public place while
there was present in his body a quantity of alcohol such that, within three
hours after so driving the said vehicle, the concentration of alcohol in his
urine exceeded a concentration of 107 milligrammes of alcohol per 100
millilitres of urine contrary to the provisions of
Section 49(3) and (6)(a) of
the
Road Traffic Act, 1961, as inserted by
Section 10 of the
Road Traffic Act,
1994, as amended by
Section 2 of the
Road Traffic Act, 1995, contrary to the
form of the Statute in such case made and provided.
(2)
Section
12(1) of the
Road Traffic Act, 1994 authorises a member of the Garda
Síochána to require a person in charge of a mechanically
propelled vehicle in a public place "...to provide, by exhaling into an
apparatus for indicating the presence of alcohol in the breath, a specimen of
his breath..." provided that the Garda Síochána in seeking to
exercise that authority has first formed the opinion that the person concerned
"...has consumed intoxicating liquor...".
(3) At
the hearing before the learned District Judge on the 12th day of February, 1997
at Callan District Court, Sergeant James Treacy testified on behalf of the
Prosecutor in support of the charge preferred against the accused and stated in
evidence that he had stopped a motor vehicle, the property of the accused at
approximately 1.15 a.m. on the 5th day of January, 1997 at Ballyduggan,
Mullinahone, a public place and having formed the opinion that the accused had
consumed intoxicating liquor he required the accused to exhale into an
apparatus for indicating the presence of alcohol in the breath which said
apparatus duly indicated the presence of alcohol in the accused's breath.
(4) Sergeant
Tracey stated that he then formed the opinion that the accused was under the
influence of an intoxicant to such extent as to be incapable of having proper
control of a mechanically propelled vehicle and so advised the accused whom he
arrested at 1.20 a.m. Sergeant Treacy testified to the intent that he "...had
some difficulty getting the accused out of his motor car but with the
assistance of a colleague, the accused was eventually brought to Clonmel Garda
Station arriving there at 2 a.m...".
(5) Subsequently
the accused, in a lawful and proper fashion submitted a sample of urine to a
duly authorised Medical Practitioner which, when tested, indicated a
concentration of 379 milligrammes of alcohol per 100 millilitres of the urine
of the accused and a certificate to that extent was duly issued by the Medical
Bureau of Road Safety pursuant to the provisions of
Section 19 of the
Road
Traffic Act, 1994 and that certificate was adduced in evidence at the hearing
before the learned District Judge on the 12th day of February, 1997.
(6) At
the conclusion of the case made on behalf of the Prosecutor in support of the
charge preferred against the accused and before any evidence was adduced on
behalf of the accused, an argument was advanced on his behalf to the intent
that the accused had no case to answer. It was submitted on behalf of the
accused by his solicitor that whilst Sergeant Treacy had stated in evidence
that before requiring the accused to submit to a breath test, he had first
formed the opinion that the accused had consumed intoxicating liquor, no
evidence had been adduced on behalf of the Prosecutor by Sergeant Treacy, or
any other person, as to how Sergeant Tracey had formed the opinion and reached
the conclusion that the accused had consumed intoxicating liquor. It was
submitted on behalf of the accused that before convicting a person of an
offence in contravention of the provisions of
Section 49(3) and (6)(a) of the
1961 Act, as amended, it was necessary for the learned District Judge to be
satisfied by way of evidence adduced on behalf of the Prosecutor, that prior to
requiring the person concerned to provide a specimen of his breath pursuant to
the provisions of
Section 12 of the 1994 Act, the member of the Garda
Síochána requiring the breath test (a) had first formed an
opinion that the person concerned had consumed intoxicating liquor
and
(b) that there were identifiable grounds justifying that opinion.
(7) On
behalf of the Prosecutor, it was contended that whilst the authority conferred
upon a member of the Garda Síochána, by
Section 12 of the 1994
Act, may only be exercised in accordance with the requirements of the Section
when the Garda exercising it has first formed the opinion that the person
concerned has consumed intoxicating liquor, there is no obligation imposed upon
the Garda concerned either by
Section 12 of the 1994 Act or elsewhere to
expressly identify, in evidence, the precise reasons which give rise to the
opinion which he has formed. It was strongly contended that if a Garda
testifying in support of a prosecution pursuant to provisions of
Section 49(3)
and (6)(a) of the 1961 Act, as amended, states that he has formed the requisite
opinion pursuant to
Section 12 of the 1994 Act, and if the consumption of
intoxicating liquor is disputed, then, it is open to the accused to challenge
the opinion of the Garda either in cross examination or by way of oral or other
evidence.
THE
QUESTION FOR DETERMINATION
1. The
learned District Judge has stated a Case requiring the determination by this
Court of the following question of law:-
"Where
it is established that a member of An Garda Síochána is of the
opinion that a person is in charge of a mechanically propelled vehicle in a
public place, is it sufficient, in order for the member of An Garda
Síochána to invoke the statutory requirement to provide a breath
specimen pursuant to
Section 12(1)(a) of the
Road Traffic Act, 1994, to state
in evidence that he had formed the opinion that the person so required had
consumed intoxicating liquor without evidence being led by the Prosecution
showing the reasonableness and genuineness of the opinion?"
THE
LAW
"(1) Whenever
a member of the Garda Síochána is of the opinion that a person in
charge of a mechanically propelled vehicle in a public place has consumed
intoxicating liquor, he may require the person:-
(a) to
provide, by exhaling into an apparatus for indicating the presence of alcohol
in the breath, a specimen of his breath and may indicate the manner in which he
is to comply with the requirement;..."
2. I
have been referred by Counsel on behalf of both parties to a number of
authorities which have established the following:-
(1) That
an opinion that an offence under Section 49 of the 1961 Act has been committed
may be formed on observation alone, or on observation aided by a result of the
finding of a breath test and "...the opinion arrived at must...be a reasonable
one, and must be one which results from an honest belief come to after facts
have been ascertained and considered..." - see
Hobbs
-v- Hurley
,
High Court, unrep., Costello J., 10th June, 1980, (No. 165SS).
(2) That
the requirements of
Section 12(1) of the 1978 Act in relation to forming an
opinion as the consumption of intoxicating liquor were complied with by a Garda
who stopped the driver of a vehicle at check point erected for a purpose
unrelated to driving offences when the guard heard the driver enunciate his
name and address in reply to queries put to him and smelt his breath and formed
the opinion that the Defendant had consumed an intoxicant - see
D.P.P.
-v- Gilmore
[1981] I.L.R.M. 102.
(3) That
the authority of a member of the Garda Síochána to require a
person in charge of a mechanically propelled vehicle in a public place to
provide a specimen of his breath in the manner acquired by
Section 12 of the
1978 Act (and presumably by
Section 12 of the 1994 Act).
"...does
not arise as a necessary inference from the fact that he has stopped a driver
and required him to undergo the test. It should be proved by express evidence
where it forms a necessary link in a prosecution. Had the defendant refused to
submit to the test when required to do so, and had he been prosecuted for such
a refusal under the provisions of
Section 12, subsection (2) of
the Act of
1978, it would, in my opinion, be a good defence to such charge if no evidence
were adduced to show that the garda had formed the necessary opinion before
requiring the driver to undergo the test", - see
D.P.P.
-v- Brady
[1991] 1 I.R. 337.
In
D.P.P.
-v- Regina Breheny
Supreme Court, unrep., 2nd March, 1993, Egan J. considered the provisions of
Section 12(1) of the 1978 Act [now
Section 12(1)(a) of the 1994 Act], in the
context of an opinion formed by a Garda that a lady who was talking in an
incoherent manner had consumed intoxicating liquor. She declined the Garda's
request to provide him with a specimen of her breath.
Egan
J. observed at pages 5-6, that:-
"The
wording of
sec. 12(1) sets out the necessary proofs:-
(a) that
a person is in charge of a mechanically propelled vehicle;
(b) that
he is so in charge in a public place;
(c) the
opinion
of a Garda that such a person has consumed intoxicating liquor".
3. Subsequently
he continued at page 8 as follows:-
"If
the opinion is genuinely and reasonably held at the time of the making of the
request it seems to me that the literal terms of the subsection have been
complied with and it makes no difference that the member's opinion is not
proved to be factually accurate.
I
cannot see any compelling reason why the subsection should not be construed
strictly in accordance with its wording which only demands an opinion. An
arrest under the subsection could still be good if the member's opinion
regarding the consumption of alcohol was totally wrong and the test at the
station proved that not a single drop had been consumed."
4. He
went on to hold at page 9 that "the evidence in the present case does not
suggest in any way that the opinion of Garda Keelan was not genuinely held in
relation to the ingredients required by the section..."
In
D.P.P.
-v- Fanagan
High Court, unrep., 18th December, 1991, Denham J., dealing with the 1961 Act
in the context of offences contrary to Section 49 of that Act declared at page
7 that "...the Statute should be interpreted reasonably, but strictly as it is
a penal statute and as it affects the fundamental rights of the person...the
Garda should use the exact words of the statute, if he has formed the required
opinion". She went on to find that a member of the Garda
Síochána who had formed the opinion that a driver was "unfit to
drive a motor vehicle" rather than "incapable" of driving that vehicle had not
formed the appropriate requisite opinion required by
the Act.
5. However,
she also pointed out at page 7 that "...if the garda sets out what his opinion
was then there is no necessity to look to the facts to seek what his opinion
was by necessary implication. If, as here, the garda gives his opinion as that
the defendant was 'unfit to drive a motor vehicle' then that is his expressed
opinion and the court cannot look behind that opinion to the facts to see if
the garda could, or did, also form the opinion that the defendant was incapable
of having proper control of the vehicle. The garda must have had the necessary
opinion. It is not a question of looking at the facts and seeking objectively
to see if the necessary opinion could have been formed on the facts."
6. In
the instant case, the provisions of Section 12 of the 1994 Act required that
before requiring the accused to provide a specimen of his breath it was
necessary for Sergeant Treacy to have formed the opinion that the accused had
consumed intoxicating liquor. Sergeant Treacy adduced uncontested evidence on
behalf of the prosecution to the extent that he had formed such an opinion and
there is no reason why, in the absence of any suggestion or contention to the
contrary the learned District Judge or this Court should find that the opinion
of Sergeant Treacy did not result from an honest belief and was not genuinely
and reasonably held.
7. His
oral testimony comprised,
prima
facie
,
evidence sufficient to satisfy the requirements of Section 12(1)(a) of the 1994
Act as to the requisite opinion required for the purposes of that Section which
could, of course, have been displaced either by way of cross examination or as
a result of testimony adduced on behalf of the accused.
8. I
respectfully endorse the views expressed by O'Hanlon J. in
D.P.P.
-v- Brady
,
supra
at p.339, that the authority conferred upon members of the Garda
Síochána pursuant to the provisions of Section 12(1)(a) of the
1994 Act [then Section 12(1) of the 1978 Act] "...does not confer an unfettered
discretion on the gardaí to make this demand of any driver at any time".
The exercise of that discretion by a member of the Garda Síochána
comprising, as it does, an intrusion upon the privacy of a citizen and to some
extent a statutory invasion of and detraction from rights which would otherwise
be constitutionally protected is strictly confined by the provisions of Section
12(1)(a) of the 1994 Act. Before exercising the discretion lawfully, the
member of the Garda Síochána requiring the breath test must
first
form the opinion that the person against whom the requirement is directed has
consumed intoxicating liquor and the formation of that opinion prior to the
exercise of the power must be proved by "express evidence" [see
D.P.P
-v- Brady
supra
at p.339] of the Garda concerned in order to comply with the provisions of the
Statute.
"Express
evidence" of the formation of an opinion is relative and will depend upon the
circumstances of individual cases. Generally speaking it is desirable that a
Garda adducing evidence of the formation of an opinion sufficient to satisfy
the requirements of
Section 12(1)(a) of the 1994 Act should provide some
measure of detail as to acts, omissions, or behaviour giving rise to the
formation of an opinion that a person has consumed intoxicating liquor but the
failure of the Garda concerned to provide such detail in evidence will not, by
itself, preclude the adequate proof of the formation of the requisite opinion
for the purposes of the Section. In particular, where, as in the instant case,
during the course of a prosecution pursuant to the provisions of Section 49 of
the 1961 Act, a member of the Garda Síochána clearly and
unequivocally states in evidence that prior to requiring a breath test he
formed the opinion that the accused person had consumed intoxicating liquor and
where that accused person is represented by a reputable competent professional
legal adviser and where the evidence of the formation of the opinion is not
challenged and no suggestions is made that the opinion was not genuinely and
reasonably held at the time of the making of the request, it would be illogical
and inappropriate for a Court to disallow such evidence on grounds which were
not placed in issue by or on behalf of the accused person.
9. As
I have already indicated, however, every case depends upon its own particular
circumstances and the adequacy of evidence is usually a matter for the trial
judge at the hearing of a prosecution and in the light of such circumstances.
10. Accordingly,
in the particular circumstances of this case, I would answer the question of
law put by the learned District Judge within the Case Stated herein in the
following terms, that is to say:-
(a) In
the circumstances of this case, during the course of prosecution pursuant to
provisions of Section 49(3) and (6)(a) of the
Road Traffic Act, 1961 where it
was established that the accused person was in charge of a mechanically
propelled vehicle in a public place and where a member of An Garda
Síochána stated in evidence, that he had first formed the opinion
that the accused person had consumed intoxicating liquor, and then required the
accused person to provide a breath specimen pursuant to the provisions of
Section 12(1)(a) of the
Road Traffic Act, 1994 and where the accused person was
represented by a reputable competent professional legal practitioner and where
the evidence of the member of An Garda Síochána was not
challenged by or on behalf of the accused person and the
bona
fides
and reasonableness of the opinion was not placed in issue by or on behalf of
the accused person, then the evidence of the member of An Garda
Síochána as to the formation of his opinion was sufficient proof
of compliance with the provisions of
Section 12(1)(a) of the
Road Traffic Act,
1994 and there was no additional necessity for evidence to be lead by the
prosecution showing that the opinion formed was reasonable in the circumstances
and genuinely held.
© 1999 Irish High Court
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