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Cite as: [2002] 2 IR 410, [2001] IESC 99

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O'Mahony v. Ballagh [2001] IESC 99 (13th December, 2001)







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:-

“1 The learned first named Respondent failed to comply with the principles of natural and constitutional justice by failing to address the legal submissions made by counsel for the applicant at the close of the case to the prosecution and further at the close of the case for the defence.

2 The learned first named Respondent failed to comply with the constitutional and legal function of administering justice by failing to inquire, for all the purposes of the proceedings then before him, into the alleged unlawful detention of the applicant herein.

3 The learned first named Respondent acted in excess of jurisdiction by failing without just cause to exclude evidence obtained in breach of the applicant’s constitutional rights.”

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:-

“The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.”

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:-

“As an arrest means a physical act done with a view to detention, and since the accused was already arrested and in detention, this cannot have been an arrest in law.”

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.

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