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Supreme Court of Ireland Decisions |
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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Mahony v. Ballagh [2001] IESC 99 (13 December 2001) URL: http://www.bailii.org/ie/cases/IESC/2001/99.html Cite as: [2002] 2 IR 410, [2001] IESC 99 |
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1. On
the 26th day of January, 2000, the above named Aidan O’Mahony (the
applicant) was convicted in the District Court before the late judge Thomas
Ballagh of driving a mechanically propelled vehicle while there was present in
his blood a quantity of alcohol in excess of the statutory maximum contrary to
section 49(2) and 6(a) of the Road Traffic Act 1961, as inserted by
s.10
of the Road Traffic Act 1994 and amended by sections 2 & 3 of the Road
Traffic Act 1995 and ordered to pay a fine of £800 and disqualified from
holding a driving licence for the period of 48 months. An essential proof in
the proceedings against the applicant was a certificate issued by the Medical
Bureau of Road Safety under
s.19
of the Road Traffic Act, 1994. In the present case it was certified that on
analysis by the Bureau a blood specimen taken from the applicant at Naas Garda
Siochana Station at 1:30 am on the 23rd of June, 1999 contained a concentration
of 221mg of alcohol per 100 ml of blood. It is common case that the applicant
was under arrest when that blood sample was taken. The issue which arose was
whether that arrest and detention were lawful.
2. There
is no significant dispute as to the circumstances in which the applicant came
to be in the garda station on the morning in question. The applicant was
driving a red Opel motor car on or near the Naas dual carriageway in the early
hours of the morning. It came under the observation of the Detective Garda LJ
Kennedy who was driving in the vicinity. The garda observed the
applicant’s car crossing traffic lights which were red; the garda noticed
that the left tail light on the car was defective and that the car was being
driven in an erratic manner. It was being driven at speeds which varied from
30 mph to over 90 mph. At the outskirts of Naas the Opel slowed down; took a
sharp turn and, appeared to Garda Kennedy, to stall. It was the evidence of
Garda Kennedy that he jumped out of his car; opened the door of the Opel and
extracted the ignition keys from it. Detective Garda Kennedy inferred from the
demeanour of the applicant that he was under the influence of alcohol. The
applicant staggered when he got out of his car and muttered something which the
Garda could not understand. It was at that stage that the Garda identified
himself as a member of the Gardaí and informed the applicant that he was
awaiting the assistance of the Gardaí in Naas. In fact Detective Garda
Kennedy was attempting to contact Naas Gardaí on a mobile telephone when
another member of the force, Sergeant Gerard Goode, arrived on the scene. In
his evidence the Detective Garda accepted that he had, by removing the keys of
the car, arrested the applicant. Furthermore, the Detective Garda fully
accepted that he did not explain to the applicant why he was being arrested.
3. In
fact Sergeant Goode arrived very quickly on the scene. The lapse of time
between the immobilisation of the applicant’s car and the arrival of the
Sergeant has been described as “
a
matter of seconds”.
On his arrival Sergeant Good spoke to the applicant who admitted to him that
he had been driving the car and the Sergeant, having got a strong smell of
intoxicating liquor from the applicant’s breath, formed the opinion that
he had committed an offence under
s.49
of the Road Traffic Acts 1961-95 and arrested him for drunken driving. The
applicant was then taken to Naas Garda Station where he provided a blood
specimen in accordance with the statutory requirements in that behalf. The
applicant was charged and in due course a summons was issued charging him with
an offence under
s.49
of the Road Traffic Act 1961 (as inserted by
s.10
of the Road Traffic Act 1994). That matter then came for hearing before the
first named Respondent on the 26th January, 2000, at Naas District Courthouse.
4. Evidence
was tendered on behalf of the DPP in accordance with the history of the matter
as set out above. At the conclusion of the case on behalf of the prosecution,
counsel on behalf of the applicant, Mr Thomas Cahill, BL, applied to the Court
for a non suit. He contended that the arrest of his client by Detective Garda
Kennedy was unlawful because of the failure of the garda to inform the
defendant of the grounds for his arrest. He then contended that the arrest or
re-arrest by Sergeant Goode was likewise invalid having regard to the fact that
the applicant was then in the custody of the garda. The argument of counsel on
behalf of the applicant (defendant) was supported by authorities which were
opened to the trial judge. The Superintendent conducting the prosecution did
not respond to those arguments and was not invited to do so. So far as the
record of the proceedings can be reconstituted it appears that the trial judge
rejected the arguments aforesaid with words to the effect
“he
was drunk, wasn’t he”.
5. It
is significant that the defence then went into evidence and the applicant
himself gave evidence in the course of which, in reply to the prosecuting
Superintendent, he admitted he had been very drunk on the morning in question
and did not recall the matters very clearly. It does not appear that any
evidence was adduced as to whether the applicant was or was not aware as to the
reason for his arrest by the garda.
6. At
the conclusion of the case for the applicant/defendant Mr Cahill renewed his
arguments and at that stage it appears that the judge made no specific rulings
but proceeded with the conviction and the imposition of sentence.
7. It
does appear that on the 3rd February, 2000, an application was made on behalf
of the applicant to the District Court judge for a case stated setting out the
facts and grounds of the determination made by him in the proceedings
aforesaid. On the 9th day of February, 2000, that application was refused on
the grounds that the learned judge regarded the application as frivolous.
8. An
application was then made on behalf of the applicant for judicial review. In
the statement grounding the application for judicial review dated the 14th
March, 2000, and the affidavit of the applicant grounding it, the history of
the matter was set out and it was contended that the decision of the learned
District Court judge should be quashed on the grounds that it was made in
excess of jurisdiction for reasons which included the following:-
9. The
application was heard by O’Caoimh J who by his judgment and order dated
the 23rd day of March, 2001, refused the application on behalf of the
applicant. It is from that judgment and order that the applicant appeals to
this Court.
10. There
is no dispute between the parties on the facts and the difference between them
on questions of law is a fine one indeed.
11. It
is of course common case that if the applicant was in unlawful custody at the
time when the sample was taken that the evidence relating to the analysis of
the sample would not have been admissible in evidence. Again, the experienced
lawyers had no difficulty in agreeing that the principles enunciated by
Viscount Simon in
Christie
.v. Leachinsky
[1947] AC 573 (at p587-588) and approved by this Court in
The
People .v. Walsh
[1980] IR 294 were applicable in the present case. The relevant principles, so
far as material, may be summarised by saying that where a policeman arrests
without warrant upon reasonable suspicion of a felony or other crime of a sort
which does not require a warrant he, the policeman, must in ordinary
circumstances inform the person arrested of the true ground of arrest. The
principles so established and approved included, however, an exception which
was expressed in the following terms:-
12. Whether
the applicant had such knowledge does not appear to have been explored either
in evidence or in argument. As to the arrest by the Sergeant, attention was
drawn to the observations of Henchy J in
The
State (Walsh) .v. Maguire
[1979] IR 372 (at p386) when he said:-
13. If
that were a correct statement of the law then the arrest by the Sergeant would
appear to have been unlawful. However, it is clear from the decision of this
Court in
The
People
.v. Kehoe
[1985] IR 444 (and in particular the judgment of McCarthy J) as well as the
further judgment of this Court in
The
People (DPP) .v. Gerry O’Shea
[1996] 1 IR 556 that the observations aforesaid of Mr Justice Henchy do not
represent a correct statement of the law. On the other hand it is by no means
clear that a person in custody can be lawfully arrested for any and every
offence and that in all circumstances. It appears to be clear, for example,
that a person already in custody or detention may only be arrested with the
consent of the custodian or detainer: (
Hegarty
.v. Governor of Limerick Prison
[1998] 1 IR 412. Another issue which appears to remain unresolved is whether a person
in custody on a particular offence may be re-arrested for the same offence.
counsel for the applicant contended in this Court, and explained that he had
done likewise in the District Court, that a re-arrest in those circumstances
was unlawful. He conceded, however, that he had no authority for that
proposition and counsel for the Director likewise recognised that the
particular proposition was not the subject matter of any reported case.
14. The
primary ground on which the applicant relied for the relief claimed by him was
that the trial at first instance was not conducted in accordance with the
principles of constitutional justice in that the trial judge failed to address
the submissions made by counsel on behalf of the applicant at the close of the
prosecution case and again at the close of the defence. counsel for the
Director drew attention to the fact that the trial was conducted by the
presiding judge impeccably in the sense that the evidence was permitted to be
and was adduced and the arguments were made and permitted to be made with
complete propriety. It was not a case where (as in
Gill
.v. District Justice Connellan
[1987] IR 541) it appears that the interventions by the trial judge were
excessive. Nor was it a case (as in
McNally
.v. District Justice Martin
[1995] 1 ILRM 350) where the trial judge declined to permit counsel to open
authorities which, it transpired, were relevant. Here the criticism is
directed to the failure of the judge to rule on the arguments addressed to him.
15. In
all cases of this nature there are difficulties in obtaining a comprehensive
account of the proceedings at first instance. An obvious method of
supplementing a defective record would be to seek some note or information from
the trial judge. Unfortunately that course cannot be adopted in proceedings
where the procedure requires the trial judge to be named as a defendant and as
such a person who is interested, perhaps for the purpose of protecting himself
against an order as to costs or perhaps to defend his reputation. In those
circumstances a statement from the judge would not enjoy the same status as a
report from a judge of the High Court - who is merely a judge and is not a
party - to the Supreme Court. Having regard to his interest the statement
emanating from a judge of the District Court could be perceived as biased and
might well be the subject matter of cross-examination. As has been pointed out
by this Court on previous occasions such a situation would be wholly intolerable.
16. In
the present case such problems do not arise for the reason that sadly judge
Ballagh died on the 15th November, 2000, before the matter came for hearing
before O’Caoimh J.
17. In
the circumstances Mr Justice O’Caoimh did and this Court must approach
the matter on the basis that at the conclusion of an important argument, which
involved important and alternative contentions, the judge merely commented upon
the fact that the applicant was indeed drunk. The inferences which might be
drawn from that observation are likewise important. If it was intended to
convey that the trial judge was satisfied that Mr O’Mahony must have
known the reason why he was being arrested by Garda Kennedy that would be
decisive of the matter. If it was simply a general rejection of all strands of
the argument presented on behalf of the applicant it would be wholly
unsatisfactory.
18. It
is not sufficient to say, as counsel on behalf of the DPP has done, that an
application for mandamus might have been brought to compel the learned judge to
state a case for the opinion of the High Court or to furnish reasons for his
decision. At the conclusion of the State’s case the applicant and his
legal advisors were required to decide whether they should go into evidence or
not. To make that decision it was essential to know which of the arguments
were accepted and which rejected.
19. I
would be very far from suggesting that judges of the District Court should
compose extensive judgments to meet some academic standard of excellence. In
practice it would be undesirable - and perhaps impossible - to reserve
decisions even for a brief period. On the other hand it does seem, and in my
view this case illustrates, that every trial judge hearing a case at first
instance must give a ruling in such a fashion as to indicate which of the
arguments he is accepting and which he is rejecting and, as far as is
practicable in the time available, his reasons for so doing. As I have already
said, there is no suggestion that judge Ballagh conducted the case otherwise
than with dignity and propriety. It does seem to me, however, that in failing
to rule on the arguments made in support of the application for a non suit he
fell
“into
an unconstitutionality”
to use the words of Henchy J in
The
State (Holland) .v. Kennedy
[1977] IR 193, p201. In those circumstances it seems to me that the appeal
must be allowed and the matter remitted to the District Court for rehearing.