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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. O'Kelly [1998] IEHC 22 (10th February, 1998)
URL: http://www.bailii.org/ie/cases/IEHC/1998/22.html
Cite as: [1998] IEHC 22

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D.P.P. v. O'Kelly [1998] IEHC 22 (10th February, 1998)

THE HIGH COURT
1997 No. 264 S.S.
IN THE MATTER 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 PADRAIG LYNN)
APPELLANT
AND
IVAN O'KELLY
RESPONDENT

Judgment of Mr. Justice McCracken delivered on the 10th day of February, 1998.

1. This is a case stated by Judge Desmond Windle pursuant to Section 2 of the Summary Jurisdiction Act, 1857 on 12th February, 1996. It concerns a very net point regarding evidence of compliance with the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987.

2. The Respondent in the present case was arrested under Section 49(8) of the Road Traffic Act, 1961, and was subsequently charged under Section 49(2) and Section 6(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994. At the hearing before District Judge Windle the solicitor for the Director of Public Prosecutions requested an adjournment to enable Sergeant Kenny, the member in charge of the relevant Garda station, to attend Court. The adjournment was refused by Judge Windle. The case proceeded, and Garda Lynn, the prosecuting Garda, gave evidence that he heard Sergeant Kenny tell the Respondent why he had been arrested, that he had a right to call a solicitor or other person and that he might exercise these rights at any time. He further stated that a notice of rights for persons in custody was given to the Respondent.

3. At the close of the prosecution case, the Respondent's solicitor submitted that Garda Lynn's evidence in relation to the Custody Regulations was inadmissible, as it was hearsay evidence, and that accordingly there was no evidence that the Regulations had been complied with and that the Respondent had been given the necessary information. The District Judge accepted this submission and held there had been a failure to prove compliance with the Regulations.

4. At the request of the Appellant, District Judge Windle sought the opinion of this Court on the following questions:-


"(a) Was I correct in law in holding that the evidence of Garda Lynn as to compliance by Sergeant Kenny with the Regulations was hearsay?
(b) If the answer to question (a) be in the affirmative, was I correct in law in holding that the evidence of Garda Lynn, being hearsay, did not fall within any exception to the rule against hearsay as set out in the within case stated?
(c) If the answer to question (a) and question (b) be in the affirmative, was I correct in law in holding for the reasons set out in this case stated that I should exercise my discretion as to whether to admit the evidence gathered pursuant to Section 13 of the Road Traffic Act, 1994 in favour of the Respondent?"

5. What the Regulations require is that certain information must be given to an accused person on his arrest, and he must be given a written document setting out his rights by the member in charge of the relevant Garda station. Counsel for the Respondent submitted that this imposed an onerous duty on the member in charge, and that he must be satisfied that the accused understood his rights, as the purpose of the Regulations is to ensure that the accused is aware of his rights. I do not accept that this is a correct analysis of the situation. The Regulations require that the accused be informed of his rights, whether he understands them or not, and the essential proof at the hearing is that he was so informed. In my opinion, all that is required is that the relevant information is given to the accused, and the relevant notice is handed to him.

6. That being so, the only evidence that was required to be given was that the words were spoken and the notice handed over. Garda Lynn heard the words spoken in the presence of the accused and saw the notice being handed over. He was entitled to give evidence of these facts, and he did so.

In Curran -v- Clarke , (1963) I.R. 368 at page 378 Kingsmill Moore J. said in relation to hearsay evidence:-

"The actual question put and the objects for which it was put in each case has to be considered. In view of some of the arguments addressed to the Court, it is necessary to emphasise that there is no general rule of evidence to the effect that a witness may not testify as to the words spoken by a person who is not produced as a witness. There is a general rule, subject to many exceptions, that evidence of the speaking of such words is inadmissible to prove the truth of the facts which they assert; the reasons being that the truth of the words cannot be tested by cross-examination and has not the sanctity of an oath. This is the rule known as the rule against hearsay."

7. He then continued further in the page:-


"The utterance of the words may itself be a relevant fact, quite apart from the truth or falsity of anything asserted by the words spoken. To prove, by the evidence of a witness who heard the words, that they were spoken, is direct evidence, and in no way encroaches on the general rule against hearsay."

8. It appears to me that is the situation in the present case, is that there was sufficient evidence before the Court that the Respondent had been given the necessary information pursuant to the custody Regulations.

9. Accordingly, I would answer question (a) posed by the learned District Judge as "no", and the other two questions, therefore, do not arise.

© 1998 Irish High Court

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