![Show Menu](styles/mobile-menu.png)
![Page Background](./../common/page-substrates/page0316.jpg)
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
v.
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
v.
Szechter
[ 1970]
3 All E.R.
Parojcic
v.
Parojcic
[1959]
1A11ER,
Griffith
v.
Griffith
[1944] I.R. and
Buckland
v.
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
B
v.
D
June 1973 (unreported High Court)
and
S
v.
S
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
B
v.
D
and
S
v.
S
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
xiii