THE SUPREME COURT
127/98
Hamilton, C.J.
Barrington, J.
Lynch, J.

BETWEEN
RORY MADIGAN
Applicant/Respondent
AND

JUDGE DEVALLY
Respondent
AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

JUDGMENT delivered the 28th day of January, 1999, by Lynch, J. [Nem. Diss.]

This is an appeal by the Director of Public Prosecutions (hereafter the DPP) against a judgment and order of the High Court (Kinlen J.) delivered and made on the 2nd of April 1998, whereby the learned High Court judge quashed an order of the Dublin Circuit Court made on the 6th of March 1997 which in turn had affirmed a conviction of the Applicant by the Dublin Metropolitan District Court on the 18th May 1995 for the offence of driving a mechanically

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propelled vehicle on the 29th of December 1994 with excess alcohol in his blood contrary to section 49 (2) of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic Act 1994.

The Factual Background

The evidence before the High Court as to the proceedings in the Circuit Court relevant to the issues in the High Court and in this court is to be found in paragraphs 5 and 6 of an affidavit sworn by the applicant’s solicitor Sean Costello, on the 20th of March 1997: in paragraphs 2 and 3 of an affidavit sworn by the arresting Garda, Paul Fanning, on the 11th July 1997: a replying affidavit sworn by Mr. Costello on the 25th of July 1997 and in paragraph 3 of an affidavit sworn on the 3rd October 1997 by Patrick Geraghty of the Chief State Solicitor’s Office. The applicant did not swear an affidavit relevant to the issues in these proceedings, nor did he give any evidence in the Circuit Court relevant to the issues in the High Court and in this court.

Paragraphs 5 and 6 of Mr. Costello’s affidavit of the 20th of March 1997 are as follows:-

“5. 	On the said date the second named respondent (the DPP) the prosecutor mentioned in the said summons was represented by a Mr. Geraghty, a solicitor in the office of the Chief State Solicitor.

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Garda Paul Fanning gave evidence that on the 29th of December 1994 at about 5pm or a little before 5pm he was the driver of a patrol car attached to Finglas Garda Station and he observed a motor vehicle registration number and letters OZG 672 being driven in an erratic manner although (recte along) the North Road. He said that he signalled the car to stop, put on flashing lights and the car pulled in behind some roadworks. Garda Fanning stated that he spoke to the driver and got a bad smell of drink from the driver. The driver stumbled as he got out of his vehicle. Garda Fanning formed the opinion that the driver (was?) incapable of having proper control of a mechanically propelled vehicle in a public place due to the consumption of an intoxicant. At 5pm he arrested the driver under section 49(6) of the Road Traffic Act 1994 for an offence under subsections 1, 2 and 3 of section 49 of that Act. The Garda then identified the driver as being the applicant, Rory Madigan. The Garda then stated that he conveyed the applicant to Finglas Garda Station and Doctor Williams was contacted at 6.05 pm (presumably 5.05 pm). At 5.49 pm Dr. Williams arrived and was introduced to the Applicant as a designated registered medical practitioner. At 5.49 pm Garda Fanning made a requirement under the terms of section 13 (1)(b)

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of the Road Traffic Act 1978 of the applicant to admit (presumably permit) the doctor to take from him a sample of his blood or at his option provide the doctor with a sample of his urine. The consequence of him providing such requirement was explained to the applicant. The applicant furnished a sample of blood to the doctor at 5.51 pm. The provisions of section 18 of the 1994 Act were complied with and the applicant retained one of his samples. Garda Fanning then stated that he subsequently received a certificate from the Medical Bureau of Road Safety indicating a concentration of 255 milligrammes of alcohol per 100 millilitres of blood in respect of the said sample. Garda Fanning was then asked by the prosecuting solicitor as to what section he had arrested the applicant under and Garda Fanning stated that the applicant was arrested under section 49(6) of the Road Traffic Act 1994.

The prosecuting solicitor then asked Garda Fanning whether he explained to the accused what he arrested him for and Garda Fanning confirmed that he explained to the applicant that he was being arrested for drunken driving and this explanation took place at Finglas Garda Station. The State then closed his case.

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(6)	Counsel for the applicant then applied to the first named Respondent for a direction on two grounds. Firstly, that the arrest was unlawful as section 49(6) of the Road Traffic Act 1994 did not give to Garda Fanning the power to arrest and consequently the action taken by Garda Fanning on foot of the unlawful arrest was inadmissible. Secondly, counsel submitted that the requirement of the applicant to permit Dr. Williams to take from him a sample of blood was not lawfully made as the requirement was stated by Garda Fanning under section 31(b) - recte section 13(1)(b) - of the Road Traffic Act 1978 which said act had been repealed at the time. In reply to these submissions Mr. Geraghty on behalf of the second named Respondent stated that:

‘I think he has me on the second point.’

He then went on to submit that the arrest had been a lawful arrest and that it must have been quite clear to the applicant as to why he was being arrested.”

Paragraphs 3 and 4 of Garda Fanning’s affidavit are as follows:-

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“(3)	I beg to refer in particular to the affidavit of Sean Costello filed herein and sworn on the 20th day of March 1997. I say that at paragraph 5 of the said affidavit Mr. Costello fails to fully set out the evidence I gave to the first named Respondent regarding the arrest of the applicant. I gave evidence before the first named Respondent that the applicant herein was arrested under section 49(6) of the Road Traffic Act 1961. I informed the first named Respondent that at the place of his arrest I informed the applicant, in layman’s terms that he was arrested for what was known as drink driving. This was before I conveyed the applicant back to Finglas Garda Station.

(4)	At the end of paragraph 5 of the affidavit of Mr. Costello it is suggested that the accused was informed at Finglas Garda Station of the reasons for his arrest. The accused was again informed once he arrived at Finglas Garda Station of the reasons for his arrest but he had been informed on the roadside and this evidence had been given to the first named Respondent.”

Paragraph 2 of the replying affidavit of Mr. Costello sworn on the 25th of July 1997 is as follows:-

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“(2)	 I say that in paragraph 3 of his affidavit Garda Fanning seeks to correct the statements in my said original affidavit in that he

(a)	States that he arrested Mr. Madigan under s.49(6) of the Road Traffic Act 1961 (as opposed to the Road Traffic Act 1994).

(b)	Asserts that he informed Mr. Madigan at the time of the arrest of the reason for the arrest in layman’s terms.

I can only reiterate that it is my note of the proceedings and this note accords with counsel’s note that

(a)	The arrest was made under s. 49(6) of the Road Traffic Act 1994.

(b)	The Garda did not inform Mr. Madigan at the time of the arrest of the reason for the arrest.

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If necessary I seek leave of this Honourable Court to seek the judge’s note in respect of the said proceedings in order to establish which of the recollections is accurate.

However, I am advised by counsel and believe that this may not be necessary in that even if this Honourable Court accepted Garda Fanning’s version of the arrest under section 49(6) of the 1961 Act this subsection does not give a power of arrest and consequently the consequences already complained of by the applicant follow from such an arrest.”

Paragraph 3 of Mr. Geraghty’s affidavit sworn on the 3rd October 1997 is as follows:-

“I beg to refer in particular to paragraphs 6, 7 and 8 of the grounding affidavit herein sworn by Sean Costello, solicitor on the 20th day of March 1997. I believe that Mr. Costello’s recollection of what I stated to the first named Respondent herein at the close of the prosecution case is somewhat inaccurate. At the close of the prosecution case and following submissions of counsel and in particular a submission made by counsel regarding the lawfulness

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of the requirement made under section 13(1)(b) of the Road Traffic Act I stated:

‘I think he may have me on the second point.’

Mr. Costello suggests that I conceded that the submission made by Counsel on behalf of the appellant was correct. This is not the case, although I did indicate that counsel may have been correct. Indeed, at paragraph 7, Mr. Costello refers to the fact that counsel asked the trial judge to consider the fact that I had effectively conceded the second submission. At this point I again indicated to the court that I had not conceded the point, I merely had indicated that counsel may have been correct but that it was up to Judge Devally to decide the issue. Likewise when reference was made to an application for a case stated I reiterated that I was not conceding the point but rather that counsel may have raised a good point.”

The Statutory Background

Section 49 of the Road Traffic Act 1961 as originally enacted made it an offence to drive a mechanically propelled vehicle in a public place while under

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the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the vehicle. Subsection (4) of section 49 provided:-

“(4) Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.”

Section 29 of the Road Traffic Act 1968 made an amendment to section 49 of the 1961 Act which is not material for the purposes of this case but it is worth recalling that it introduced for the first time the prohibition of having a certain concentration of alcohol in the blood when driving a mechanically propelled vehicle in a public place.

Section 5 of the Road Traffic (Amendment) Act 1978 repealed inter alia section 29 of the 1968 Act and section 10 of the 1978 Act provided as follows:-

“10.- The following section is inserted in the Principal Act in substitution for section 49 of that Act:-

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

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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.

(2)	A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 100 milligrammes of alcohol per 100 millilitres of blood.

(6)	A member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.”

Section 13(1) of the 1978 Act provided as follows:-

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“13. -(1) 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 Síochána 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.”

The 1978 Act was wholly repealed by section 4 of the Road Traffic Act 1994. The 1994 Act was passed on the 20th April 1994 but was to be brought into operation by order of the Minister pursuant to section 1 (2). Section 4 was brought into operation for the purposes of repealing the whole of the 1978 Act on the 2nd of December 1994 by the Road Traffic Act 1994 (Commencement) (No. 2) Order 1994 Statutory Instrument No. 350 of the 1994. That same Order

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also brought into operation on the same date inter alia sections 5 to 24 inclusive of the 1994 Act so that the relevant sections of the 1994 Act for the purposes of this case came into operation just 27 days before the incident giving rise to the arrest of the applicant and these proceedings.

Section 10 of the 1994 Act provides as follows:-

“10 - The following section is inserted in the Principal Act in substitution for section 49 of that Act:-

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.

(2)	A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within 3 hours after

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so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 80 milligrammes of alcohol per 100 millilitres of blood.

(8)	A member of the Garda Síochána may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.

Section 13 (1) of the 1994 Act provides as follows:-

“13. -(1) Where a person is arrested under section 49 (8) or 50 (10) of the Principal Act or section 12 (3) or where a person is arrested under section 53(6), 106 (3A) or 112(6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following-

(a)	require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2

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specimens of his breath and may indicate the manner in which he is to comply with the requirement,

(b)	require the person either-

(i)	to permit a designated doctor to take from the person a specimen of his blood, or

(ii)	at the option of the person, to provide for the designated doctor a specimen of his urine, 

and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related.”

The High Court Decision

The learned High Court judge decided the case and granted the order of certiorari mainly on the ground that there was no evidence before the learned

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Circuit Court judge to justify his finding that there had been a valid arrest: that the learned Circuit Court judge had exceeded his jurisdiction in finding that there was a valid arrest and accordingly all subsequent procedures in the garda station were vitiated. I quote from the conclusion of the judgment of the learned High Court judge from page 10 of the typescript copy to the end.

“The uncontroverted evidence in this case is that Mr. Madigan was not arrested under any of the sections specified in s. 13(1) of the Road Traffic Act 1994.

“It is argued by the State that the accused must have known clearly he was being arrested for drink driving. He relies on the unreported judgment of Geoghegan J. on the 16th October 1997 in DPP v. Connell [1998] IR 62 and recalls the decision of Blayney J. in DPP v. Mooney [1992] 1 IR 548. In the former case (which was a case stated) the sergeant gave a wrong statutory citation. The garda was referring to section 49(8) of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic Act 1994. The next question really is whether the failure to give the correct subsection on section 49 when taking the sample referring to the section of an Act which had been repealed when he described it as 1978 and

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should have said 1994. In the case of the Director of Public Prosecutions v. McGarrigle (now reported at [1996] 1 ILRM as an appendix to the report of Brennan v. Director of Public Prosecutions at p.271 to 273) Finlay C.J. states:-

“The obligation to give a specimen which may establish the committing of a serious offence is a significant though not unique exception to the general principles of our criminal code which protect accused persons against involuntary self incrimination. The enforcement of it on the terms of section 13 of the Act of 1978 depends completely on proof that the requirement refused was made under that section. Such a basic requirement in a serious matter must, it seems to me, be affirmatively proved and not left to be inferred.”

“In the matter of section 2 of the Summary Jurisdiction Act 1857 as extended by section 21 of the Courts (Supplemental Provisions) Act 1961 between Brennan appellant and the Director of Public Prosecutions Respondent [1996] 1 ILRM 267 O’Flaherty J.

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on the 1st November 1995 (with the concurrence of Hamilton CJ and Denham J.) delivered a judgment and refers favourably to the People (DPP) v. B. Quilligan [1986] IR 495 in saying:-

“There is therefore no encroachment on any constitutional right of the accused above and beyond that authorised by the legislation and no policy purpose is served by requiring members of the gardaí to invoke the actual section on which the requirement is based in these circumstances. The requirements for a valid arrest are different since the deprivation of the person's liberty is involved and, in general, it will be necessary for a Garda to invoke the operative section when he makes an arrest.

“Section 13 simply sets out what is required of a suspect consequent on his arrest.”

“I would respectfully adopt that statement of the law. An arrest is a very serious intrusion on a person’s liberty and should only be done in strict accordance with law. This may be regarded as a

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legalistic approach but it is the proper approach rather than using some slipshod remark by saying:

‘well, sure I meant subsection (8). In this case the Garda very properly does not attempt to make such a case.’

The court will accordingly quash the order of the learned Circuit judge.”

The Submissions

Counsel for the DPP submitted that there was evidence and the learned Circuit Court judge was entitled to be satisfied on the evidence that the garda had formed the necessary bona fide suspicion to entitle him to arrest the applicant: that the garda did arrest the applicant and adequately told him why he was being arrested both on the roadside and in the garda station. The applicant was aware of the reason for his arrest and readily co-operated with the procedures for giving a blood specimen when asked to do so. So far as the facts of this case are concerned the requirements of section 13 (1) (b) of the 1978 Act and of the 1994 Act are identical. The learned Circuit Court judge was entitled to be satisfied on the evidence that what the garda demanded was what he was entitled to demand in the station and what he knew he was entitled

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so to demand. The mere misdesignation of 1978 instead of 1994 does not avoid the demand which he was entitled to make. McGarrigle’s case is different: in that case there was a refusal to give a specimen and the accused in that case was charged with the offence of refusing to give an appropriate specimen: in other words the allegation in that case was the commission of a criminal offence in the garda station: to establish a criminal refusal to provide a specimen strict proof of an exact lawful demand was required. In the present case there was ready compliance with the demand for a specimen and the offence charged had been committed on the public road in respect of which the necessary proofs were adduced.

Counsel for the applicant made submissions regarding the arrest but the main thrust of his submissions (unlike the decision of the learned High Court judge) related to the demand for a specimen in the garda station. Counsel submitted that the statutory source of the arrest was misquoted and that therefore if the arrest was lawful at all it was lawful at common law and not pursuant to the provisions of the Road Traffic Acts. In order to operate section 13(1)(b) of the 1994 Act in the facts of this case the applicant had to have been arrested under section 49(8) of the 1961 Act as inserted by section 10 of the 1994 Act. It is not for the courts to rescue the garda from his ignorance of the law. The courts cannot attribute to the garda knowledge of one power when he is purporting to exercise a different power. To act on no evidence at all is to act

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without jurisdiction and it is submitted that this is what the learned Circuit Court judge did.

Counsel for the parties in the course of their submissions referred to the following authorities:-
"Derek Brennan v. The Director of Public Prosecutions [1996] 1 ILRM 267;

Director of Public Prosecutions v. Seamus McGarrigle [Reported as an appendix to Brennan’s case at p. 27l] and Director of Public Prosecutions v. Hand [Reported as a further appendix to Brennan’s case at page 273];

Director of Public Prosecutions v. Mooney [1992] 1 IR 548;

Director of Public Prosecutions v. Francis Connell  [1998] 3 IR 62

Lennon v. District Judge Clifford and Director of Public Prosecutions (Supreme Court, Murphy J. 23rd May 1996);

Roche v. District Judge Martin and Director of  Public Prosecutions [1993] ILRM 651;

The State (Keegan) v. The Stardust Victims Compensation Tribunal [1986] IR 642;

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The People v. Quilligan [1986] IR 495 and The State (Keeney) v. O’Malley [1986] ILRM 31.”

Conclusions

First as regards the alleged concession made by the prosecuting solicitor which he disputes in the terms quoted above, the same was not accepted or acted upon by the learned Circuit Court judge. The point of law now comes before this court for decision and must be decided in accordance with law whether or not there was such a concession.

So far as what is commonly called drunk driving or drink driving is concerned the Garda Siochana had been operating the 1978 Act for some 16 years or so up to and including the first of December 1994. The 1994 Act wholly repealed the 1978 Act as from 2nd December 1994 but substituted for the 1978 Act very similar provisions and so far as relevant to the facts of this case, identical provisions. It is not surprising that in the first few weeks after the coming into operation of the 1994 Act provisions there should have been some mix up between the 1978 Act and the 1994 Act from time to time. If such a mix up should cause any disadvantage, and a fortiori. any injustice to any person the law would have to take such steps as would negative and rectify any such disadvantage and/or injustice.

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In this case no question of disadvantage or injustice to the applicant arises by reason of any mix up on the part of the garda between the 1978 Act and the 1994 Act. On the facts of this case which it was open to the learned Circuit Court judge to find on the evidence adduced before him the right to arrest under section 49(6) of the 1961 Act as inserted by section 10 of the 1978 Act had been identical to the present existing right to arrest given by section 49 (8) of the 1961 Act as inserted by section 10 of the 1994 Act. Likewise the former right to demand that a specimen be provided under section 13 (1) (b) of the 1978 Act was identical to the present existing right under section 13 (1) (b) of the 1994 Act so far as the facts of this case are concerned. No question of any disadvantage or injustice to the applicant could or did arise therefore by virtue of any such mix up between the two Acts by the garda.

The learned Circuit Court judge was entitled to conclude on the evidence which he heard that the applicant was aware of his liability to be arrested and of his obligation under the Road Traffic Acts to provide a specimen if arrested. Furthermore the learned Circuit Court judge was entitled to conclude that the garda was aware of his power to arrest under the Road Traffic Acts and of his power to require the provision of a specimen under those same Acts and intended to exercise those powers. I do not understand counsel’s submission that the garda arrest of the applicant, if valid, was an arrest at common law and not by virtue of the Road Traffic Acts. I know of no common law right to

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arrest a person for drunk driving unless in the case of a fatal accident when the driver might be arrested on suspicion of manslaughter. The powers of arrest in relation to the driving of mechanically propelled vehicles are given by the Road Traffic Acts and not by common law. It was within the jurisdiction of the learned Circuit Court judge to find that there had been a lawful arrest under the powers conferred by the Road Traffic Acts and to disregard the mistaken reference to the 1978 Act instead of the 1994 Act on the basis that if he were to dismiss the prosecution because of that error his decision would be “indefensible for being in the teeth of plain reason and common sense” to borrow the words of Henchy J. in his judgment in the State (Keegan) v. The Stardust Victims Tribunal.

The reliance by the learned High Court judge on Quilligan’s case was in my opinion somewhat misplaced. In that case the arrest was made under section 30 of the Offences Against the State Act 1939 and was held to be a lawful arrest: the subsequent statements made in custody were held to be admissible in evidence and the direction given by the learned trial judge to the jury to acquit was held to have been wrongly given. I do not think that the Supreme Court in Derek Brennan v. Director of Public Prosecutions intended to disagree with the House of Lord’s decision in Christie v. Leachinsky [1947] AC 573 at p.587 which was quoted with approval by Blayney J. in his judgment in

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the case of the Director of Public Prosecutions v. Mooney at p.553 of the report.

These are judicial review proceedings not a case stated. Even if the learned Circuit Court judge erred which I do not think he did he would have erred within jurisdiction and the superior courts exercising their judicial review jurisdiction should not and do not act as courts of appeal on factual matters. I would allow the appeal and dismiss the applicant’s judicial review proceedings.