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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dougal v. Mahon & Anor [1988] IEHC 16 (2 December 1988) URL: http://www.bailii.org/ie/cases/IEHC/1988/16.html Cite as: [1988] IEHC 16 |
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THE HIGH COURT
JR 126 of 1988
JOHN ANTHONY DOUGAL
APPLICANT
AND
DISTRICT JUSTICE MAHON AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
Judgment of Mr. Justice Gannon delivered the 2nd day of December 1988.
By Order of Barr J. dated the 2nd May 1988 the applicant obtained leave to apply for an Order of Certiorari by way of Judicial Review in respect of two Orders of conviction for offences under the Road Traffic Acts made on the 15th of April 1988. The Order recites that a statement by the Solicitor for the applicant was filed on the 2nd of May 1988. Further, it declares the grounds for application for Judicial Review to be "the grounds set out in paragraph E of the said statement filed on the 2nd of May 1988."
The paragraph E mentioned contains ten enumerated subparagraphs the first of which is a statement summarizing the evidence in the District Court. The next following eight paragraphs specify complaints of errors of law alleged to have been made by the District Justice. The tenth and final subparagraph is as follows:
"10. That the applicant stands convicted of an offence under Section 49 (1) and (4a) of the Road Traffic Act 1961 as amended and an offence under Section 13 (3) of the Road Traffic (Amendment) Act 1978 which convictions were imposed contrary to law and without jurisdiction and in breach of the applicant's legal and constitutional rights and should be quashed."
The two offences with which the applicant was charged before the District Justice on the 15th of April 1988 and upon which he was convicted were: firstly, that he drove motor car 223 BZM on the 28th December 1987 at Kilminchy, Portlaoise, in a public place while under the influence of an intoxicant such as to be incapable of having proper control of it contrary to Section 49 of the Road Traffic Act 1961 as amended; and, secondly, that on the same date, being a person arrested and brought to the Garda Station and required to provide a specimen of urine for the designated registered medical practitioner, he refused to comply with the request contrary to Section 13 of the Road Traffic (Amendment) Act 1978.
Section 49 (1) of the Road Traffic Act 1961 as amended by Section 10 of the Road Traffic (Amendment) Act 1978 is as follows:
"49(1)(a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.
(b) In this subsection "intoxicant" includes alcohol and drugs and any combination of drugs or of drugs and alcohol."
Section 13 (3) of the Road Traffic (Amendment) Act 1978 is as follows:
"(3) A person who, following a requirement under subsection (1) (b),
(a) refuses or fails to comply with such a requirement, or
(b) refuses or fails to comply with a requirement of a designated registered medical practitioner in relation to the taking under this section of a specimen of blood or the provision under this section of a specimen of urine, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or, at the discretion of the court, to a fine not exceeding £500, or to both."
The subsection 1 (b) therein mentioned namely Section 13 (1) is as follows:
"Where a person arrested under section 49 (6) of the Principal Act or section 12 (3) has been brought to a Garda station, a member of the Garda Siochana may at his discretion do either or both of the following: -
(a) require the person to provide, by exhaling into an apparatus for indicating the concentration of alcohol in breath or blood, a specimen of his breath,
(b) require the person either to permit a designated registered medical practitioner to take from the person a specimen of his blood or, at the option of the person, to provide for the designated registered medical practitioner a specimen of the person's urine."
As is evident from that subsection the previous arrest of the applicant under Section 49 (6) of the 1961 Act or under Section 12 (3) of that 1978 Act and (under the latter) his having been brought to the Garda Station are prerequisite to the obligation to comply with the requirement, the non compliance with which is made an offence by Section 13 subsection (3). The terms of subsection (3) of Section 12 are exactly the same as subsection (6) of Section 49 of the 1961 Act which reads as follows:
"Section 49 (6) 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 this section."
Needless to say the offence to which Section 12 of the 1978 Act relates is different from that to which Section 49 of the 1961 Act relates. Section 12 (1) of the 1978 Act is as follows:
"12 (1) Whenever a member of the Garda Siochana 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 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."
The offence under Section 12 is the refusal or failure to comply forthwith with the requirement of a member of the Garda Siochana to provide a specimen of breath when the Garda is of opinion that the person so required being in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor. The particular offence under Section 49 relevant to this application is that prescribed by subsection 1 (a) and (b) already quoted.
The circumstances which gave rise to the proceedings before the first named respondent in the District Court are described in the Affidavit of Catherine McMahon the Solicitor for the applicant at paragraphs 3 to 6 inclusive and in the affidavit of Inspector Michael Morris of the Garda Siochana who prosecuted on behalf of the second named respondent in the District Court. From these affidavits, which do not differ on any matter of substance, it appears Garda Michael Cashen noticed the applicant's car being driven in an erratic manner on the Dublin Road, Kilminchy, Portlaoise and followed it until it came to a halt outside the Killeshin Hotel. The Garda asked the applicant to get out of the car which he did, and the Garda himself then drove the applicant's car into the safety of the car park of the hotel. He then came back to the applicant who had remained where the car had first come to a halt. The evidence of Garda Cashen in the District Court was that "he then returned to the applicant and having formed the opinion that the applicant had consumed intoxicating liquor required a specimen of his breath." According to Catherine McMahon's Afffidavit the Garda "stated that he made a requirement under Section 12 of the Road Traffic (Amendment) Act 1978 for a sample of the applicant's breath by exhaling into a breathalyser." Such are the facts deposed to on Affidavit. But the Affidavit of the Solicitor Catherine McMahon in support of the application sets out two questions of fact relative to which no evidence appears from these Affidavits to have been offered to the respondent District Justice. They are:
(a) Whether the place where the request for a breath specimen was made was a public place; and
(b) Whether the applicant was in charge of a mechanically propelled vehicle at the time such request was made. Neither of the Affidavits used on the application to this Court makes reference to the arrest of the applicant, nor to the time or place thereof, nor to the refusal of the applicant to give a sample of urine. It was stated by Counsel for the applicant on this application that "it is an agreed fact that the arrest followed the application of the breathanalyser test".
The submission of the applicant to the breathanalyser test and the result ascertained is not deposed to as evidence for this Court. The only other averment of fact pertinent to the relief now claimed is at paragraph 7 of the Affidavit of the applicant's Solicitor in which she swears:
"The first named respondent held that the car-park to the hotel was to his knowledge a public place and refused an application for a direction on the part of the defence on that grounds".
Before adverting to the arguments advanced in this Court I think it proper to examine the statement of opposition filed on behalf of the respondents in July 1988 subsequent to the service on them of the Order of Barr J. On the matter of the relevant place being held to be a public place the respondents contend there was sufficient evidence to hold that it was such a place and that the applicant was in charge of a vehicle in such a place. While denying any error in law by the first respondent they maintain the remedy therefore should be by way of Case Stated or appeal but not by way of Certiorari as the purported errors, if any, were made within jurisdiction. They further say the convictions were not made contrary to law nor without jurisdiction nor in breach of legal or constitutional rights of the applicant.
No application was made to amend the grounds of relief or to seek additional or other relief following delivery of the statement of grounds of opposition nor during the hearing of this application. Accordingly, I do not think I should treat this application as a means of making a determination on a point of law as if it were an appeal or a Case Stated. Rather I must entertain this application only as a challenge to the manner of exercise by the first named respondent of the jurisdiction invested in him and the function of the office he holds.
It was argued in this Court in support of the application that the District Justice wrongly had recourse to his own personal knowledge of the location described in evidence when the absence of evidence as to whether it was or was not a public place was drawn to his attention. It was submitted that by doing so he substituted his personal knowledge for the missing evidence on a disputed question of fact, and that thus he had not merely erred in law but exceeded his jurisdiction. It was further argued that following the decision of the Supreme Court in D.P.P. v. Joyce 1985 ILRM 206 it had to be proved that the place where the breathanalyser test was made was a public place and in the absence of that proof the subsequent arrest was unlawful and could not be relied upon as a compliance with Section 12 of the 1978 Act so as to sustain a charge of an offence contrary to Section 13 of that Act.
It was further argued that from the time the Garda took the applicant's car and put it in the car-park the applicant ceased to be a person in charge or in control of a mechanically propelled vehicle in a public place and that consequently the District Justice was wrong in law in hearing or deciding the charges brought against the applicant as being a person in charge or having control of a mechanically propelled vehicle in a public place.
For the respondents it was argued that it is not an excess or abuse of jurisdiction for the District Justice to take judicial knowledge of the publicly known local conditions of the place within the area of his jurisdiction. While maintaining that the ruling of the District Justice is not inconsistent with the Judgments in DPP -v- Joyce it was submitted that an error of law made within jurisdiction is not a ground on which the Court would make an Order of Certiorari. It was admitted however that the arrest when made followed the breathanalyser test, but it was contended for the respondents that the applicant's manner of driving on the public road as previously seen was sufficient to support the opinion of the Gardai pre requisite to a lawful arrest. Any alleged error in law on the part of the respondent justice being an error within jurisdiction, it was submitted, is not a ground for quashing his Order. Any point of law considered to be erroneously decided, it was submitted, could have been the subject of a Case Stated or an appeal, but the applicant declined to take either such course.
The principal argument advanced on behalf of the applicant was that the respondent District Justice had no jurisdiction to entertain the complaint before him unless the arrest of the applicant by Garda Cashen was lawful. It was submitted that the arrest followed the application of a breathanalyser test and would not have been made but for the result of that test.
It was argued that because the place where the breathanalyser test was made was not a public place and that the applicant was not then in charge of a mechanically propelled vehicle the arrest which followed was unlawful.
The defendant in the DPP -v- Joyce was a person in the precincts of whose home the Gardai in a patrol car found a motorcar the driving of which had been reported to them a short time earlier for investigation. They had not observed the motorcar or the person in charge of it in a public place. While they were examining the car on the defendant's premises he approached them, and from their observations then they considered he was unfit to drive a motorcar due to drink taken. He admitted to them that he had been driving the car half an hour earlier. He was required by them purportedly pursuant to Section 12 (1) of the Road Traffic Act, 1978 to submit there and then to a breathanalyser test, which he did. As a result of the indications of that test, he was arrested and charged with an offence under Section 49 of the Road Traffic Act, 1961 as amended. Upon conviction in the District Court he appealed and the Judge of the Circuit Court stated a case to the Supreme Court for advice as to whether he could rightly allow the appeal on the grounds that the Gardai did not have power to require the defendant to take a breathanalyser test on his private property and to arrest him on his private property. The advice of the Supreme Court was affirmative.
The judgment of the Court was delivered by Hederman, J., and at page 209 of the Report he is quoted as follows:
"During the hearing it was accepted by counsel on behalf of the Director of Public Prosecutions that a request by a member of the Garda Siochana to require any person to provide a specimen of his breath must be in a public place and that person must be then in charge of a mechanically propelled vehicle in such public place."
Having distinguished DPP -v- Gilmore 1981 I.R. 102 Mr. Justice Hederman went on as follows:
"In my view, on the findings of the Circuit Court judge,the evidence on which the Gardai relied for the purpose of arresting the accused under s. 49 was improperly obtained, and it tainted with illegality everything that the Gardai did thereafter including arresting the accused."
The judgment concluded as follows:
"In the circumstances of this particular case I would therefore hold that on the findings of the Circuit Court judge there was not present in the mind of the arresting Gardai any lawful suspicion that Mr. Joyce had committed an offence contrary to s. 49 of the Road Traffic Act prior to taking the breath test. Therefore Mr. Joyce was not obliged to submit to arrest and could not be taken into lawful custody."
The manifest distinction in wording between Section 12 (1) and Section 15 (1) of the Act in relation to the authority given to a member of the Garda Siochana to apply such a test is not mentioned in the report of the proceedings in the Supreme Court in DPP -v- Joyce. The facts as disclosed in this case heard by the respondent District Justice whose Order is now sought to be quashed appear to be significantly different from those in the DPP -v- Joyce case and in some respects accord with the facts in DPP -v- Gilmore 1981 I.R. 102. As the latter case was not opened to this Court on this hearing I will say no more than that I find it more helpful than the report of DPP -v- Joyce. The applicant here was seen by the Garda to be driving and thus in charge of the mechanically propelled vehicle in a public place and the circumstances were such as might reasonably give rise to an opinion that an offence contrary to Section 49 was being committed. The evidence as presented to the respondent District Justice could reasonably support a finding by him that the applicant was the person in charge of the mechanically propelled vehicle in a public place at the time the Garda formed the opinion that he was incapable of exercising proper control of the vehicle because he had consumed intoxicating liquor and that the requirement of the test was made of the correct person at the correct time and place.
It would seem from the evidence on the Affidavits that the charges against the applicant were defended before the respondent District Justice as if there was an imaginary boundary or borderline somewhere outside the Killeshin Hotel beyond which the applicant could take refuge or find sanctuary in reliance on the decision in DPP -v- Joyce. To be correctly understood that decision must the facts so fully and carefully stated in the judgment. The reference to the procedure adopted by the Gardai in that case as being "tainted with illegality" seems to me to be a short, simple and expressive way of saying that the Court in administering justice will not adopt or approve of any illegal methods deliberately adopted for recourse to its jurisdiction. I do not think the decision in DPP -v- Joyce supports the concept of a borderline of refuge or sanctuary; nor does it hamper the respondent Justice in receiving and evaluating, or rejecting, or determining the relevance of, evidence submitted to him. From the account given in the Affidavit of the applicant's solicitor of the evidence heard by the respondent District Justice there was evidence upon which he could properly conclude that the Garda had formed the opinion while observing the vehicle being driven in a public place that the driver was then incapable of having proper control of it. The precise place where the applicant and the Garda were when the requirement of the breathanalyser test was made is not stated in either Affidavit. As presented in this Court such place appears to have been where the applicant was standing after he got out of his car before it was driven by Garda Cashen into the hotel car-park.
The time when the requirement was made, although at the same place, was after the car had been removed from the applicant. The time and place of the arrest of the applicant, the alleged unlawfulness of which is relied upon as vitiating the proceedings in the District Court, is not given in evidence in this Court. There is nothing in the evidence to indicate whether the applicant expressly or impliedly adopted the removal of his car by the Garda. Whether these matters were in fact proved in the District Court I do not know. Although I am informed that the fact was that the breathanalyser test preceded the arrest it does not appear whether such evidence was given to the District Justice.
Upon such evidence, including the absence of essential evidence to support an argument that the arrest was illegal, the applicant seeks an Order of this Court to review the Orders of the respondent District Justice on the grounds of abuse in the exercise of his jurisdiction. While there is no presumption that any Judge will not err in law there is ample procedure otherwise than by Certiorari to avoid such an error by Case Stated, or to rectify such error by appeal. But where a determination made without apparent error in terms or form in the valid exercise of the judicial function is challenged by Certiorari there is an onus on the applicant to demonstrate by credible evidence and cogent argument that the Order or determination should not be allowed to stand by reason of some alleged misconduct or abuse of the jurisdiction purportedly exercised. A refusal or failure to adopt or apply prescribed or fair procedure could conceivably amount to misconduct and an injustice which would warrant an Order of Certiorari. But in my view an applicant who undertakes this course with the benefit of legal advice or assistance in lieu of appeal or Case Stated must be prepared to accept the consequences of the decision the subject of challenge if no misconduct or injustice is.established. I express this view as indicating how I would exercise the discretion in this Court of whether or not to Order Certiorari in respect of a determination which is not bad on its face and appears to have been made within jurisdiction.
No where in the evidence presented in this Court is there anything indicating any misconduct in any sense of that word on the part of the respondent District Justice in the proceedings before him. In regard to the use made by him of his personal knowledge of the roads and buildings mentioned in the course of the evidence I am of opinion that in relation to such matters, obviously of notorious public knowledge, he was entitled to and properly could take account of his own knowledge of the place, unless some factor became apparent which could give rise to a doubt about the reliability of his knowledge. The definition of "public place" in the Road Traffic Act, 1961 was not discussed in argument. It seems to me that on the evidence before the respondent District Justice as indicated in the Affidavits there is nothing to give rise to a doubt about the reliability of the knowledge of the District Justice as to the applicability of that definition to the place.
On this application this Court cannot embark on a rehearing on evidence on Affidavit of the issues tried by the respondent District Justice on oral evidence in his Court. Upon the evidence presented to this-Court the onus undertaken of showing that the Orders sought to be quashed are bad, or made without jurisdiction, or if allowed to stand would amount to an injustice, has not been discharged. The intervention of this Court upon Judicial Review to quash an Order of a Court of limited jurisdiction on the grounds of abuse of or of excess of jurisdiction should not be sought lightly nor without careful and fair presentation of all material information. As already indicated there is before this Court, and may have been before the respondent District Justice, an inadequacy of evidence of fact to determine the applicability of the law as explained by the Supreme Court in DPP -v- Gilmore 1981 I.L.R.M. 102 and in DPP -v- Joyce 1985 I.L.R.M. 206. I am not satisfied on the facts deposed to nor on the arguments presented that there has been any breach of any constitutional or legal rights of the applicant. Accordingly, I refuse this application for Certiorari of the specified District Court Orders.
