The Gazette 1983

GAZETTE

JULY/AUGUST

1983

Recent

Irish

Cases

ROAD TRAFFIC ACT

Where a person has been charged with

driving while having more than the

prescribed amount of alcohol in his

urine the arrest by the member of the «

Garda Siochana on the basis of a

positive result from the breathalyser

test will be valid.

The defendant in this case stated had

been stopped at a check point and when

the Garda heard the applicant's replies to

routine questions and also smelled his

breath he formed the opinion that the

applicant had consumed an intoxicant and

then gave him a breathalyser test which

proved positive. As a result of this the

Garda arrested the Defendant without a

warrant in that he formed the opinion that

the Defendant was driving while under the

influence of an intoxicant to such an

extent as to be incapable of of having

proper control of the vehicle in

accordance with section .49 (6) of the

1961 Road Traffic Act as inserted by

section 10 of the Road Traffic (Amend-

ment) Act 1978. Later at the Garda

Station the Defendant gave a sample of

his urine and a certificate of analysis later

showed the alcohol level to be above the

prescribed limit. The applicant was

charged with driving while his urine

alcohol content was at this level rather

than with driving while under the

influence of an intoxicant to such an

extent as to be incapable of having proper

control of the vehicle which is one of the

three separate offences laid down in

section 49 of the 1961 Act and which was

the offence of which the arresting Garda

formed the opinion as stated by him in

evidence. The applicant was convicted in

the District Court and he appealed to the

Circuit Court from where the case was

stated.

The basic question at issue was

whether the arrest was valid i.e. whether

the Garda could justifiably form the

opinion that the Defendant was unfit to

drive without observing any defects in his

driving or his demeanour and purely on

the basis of the breathalyser test. It was

held that the opinion formed by the Garda

was invalid in the absence of any

demonstrable defects in driving or

demeanour in that the breathalyser

merely showed that not less than a

particular amount of alcohol had been

consumed. It certainly gave no indication .

of a person's capacity to drive which

would vary from person to person with the

same level of alcohol.

It was also considered that when the

Garda formed his unjustified opinion he

must also have formed the opinion, even

though not stated in evidence, that the

applicant had driven when there was an

excessive concentration of alcohol in his

blood or urine. The first unjustified

opinion would encompass this second

opinion. This second opinion proved

justifiable when the certificate of analysis

was produced. Therefore the arrest had

been valid though not for the reason given

in evidence but for an appurtenant and

implied reason that an offence separate

from the one of which the arresting Garda

formed the opinion, had been committed.

It was also felt by Kenny J. that a

Garda may form his opinion by relying

solely or partly upon the breathalyser. He

referred to the decision of Mr. Justice

Costéllo in

Hobbs v. Hurley

(1980 no.

165 SS unreported) which seemed to

suggest that the Garda must observe

certain matters over and above the

breathalyser result to enable him to

justifiably form the requisite opinion.

Kenny J. would disagree with this

suggestion.

Held (per Henchy J. and Griffin J.)

The positive result of a breathalyser test

on its own is not sufficient to justify an

arresting Garda in forming an opinion that

a driver is under the influence of an

intoxicant to such an extent as to be

incapable of having proper control of a

vehicle but it is sufficient to justify an

opinion that his blood alcohol or urine

alcohol levels are above the prescribed

limits. An arrest will therefore be valid but

the defendant must be charged with an

offence specific to urine or blood alcohol

level and not simply with the offence of

incapacity to drive.

Held (per Kenny J.) The positive result

of a breathalyser test on its own is

sufficient to justify an arresting Garda in

forming an opinion that a driver is under

the influence of an intoxicant to such an

extent as to be incapable of having proper

control of a vehicle. An arrest will

therefore be valid and the defendant may

be charged with the simple offence of

incapacity to drive or with an offence

relating to blood or urine alcohol level.

The Director of Public Prosecutions

Gilmore,

1981 ILRM 102.

Brendan Garvan

NULLITY — DURESS

The Petitioner and Respondent met

one another on holidays in 1970. In the

ensuing two years they became friendly,

but the friendship was not of a close

personal nature. The parties never

contemplated marriage. In 1972 sexual

intercourse took place between the parties

which resulted in the Petitioner's preg-

nancy. The Petitioner was nineteen and

the Respondent was twenty-one. Both

were living at home. The Petitioner had

just commenced a career in the Bank, and

the Respondent was in poorly paid

employment.

The Petitioner was deeply attached to

her mother and very dependant on her.

When the Petitioner's mother discovered

the pregnancy she informed her that she

must marry or leave home. At the time the

Petitioner's father was suffering from ill

health.

The Respondent's parents informed

him that he had no option other than to

marry. The Respondent had to leave

home and live with a friend.

The two sets of parents met, in the

absence of the Petitioner and the

Respondent, and decided that a marriage

should be arranged. The Petitioner's

mother directed her to organise the

ceremony with the priest. The Re-

spondent took no part in the arrangements.

He described himself to the Court as

"feeling trapped", he was still in poorly

paid employment and had no arrange-

ments made for a home in which the

parties could live after the marriage.

The parties marries in September

1972. Two weeks after the wedding the

Petitioner miscarried. The relationship

deteriorated thereafter and the parties

separated in 1975. The Petitioner sought

a Decree of Nullity on the ground of

Duress. In reviewing the case law, the

court identified two distinct approaches to

the law on duress.

The more stringent principals as

enunciated in

Szechter

[ 1970]

3 All E.R.

Parojcic

[1959]

1A11ER,

Griffith

[1944] I.R. and

Buckland

[1967] 2 All E.R.,

required that the will ofone or both parties

should be overborne by threats calculated

to produce fear of loss of life, limb or

liberty.

In two more recent Irish cases that of

June 1973 (unreported High Court)

and

November 1978 (unreported

High Court). A broader approach was

adopted and summarised in the judgment

ofFinlay P. where he stated "essentially it

seems to me that the freedom of will

necessary to enter into a valid contract of

marriage is one particularly associated

with emotion, and a person in the

emotional bondage of another could not

consciously have that freedom of will".

In deciding to adopt the broader line of

thinking of

and

the court

looked to section 13 of the Matrimonial

Causes and Marriage law (Ireland)

Amendment Act 1870 which provides

that the High Court in exercising its

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