The Gazette 1993

GAZETTE

JULY/AUGUST 1993

of the 1961 Act and informed the defendant that he was being arrested pursuant to s.49(6) of the 1961 Act for the offence of drunk driving. The defendant was charged under s.49(3) with the offence of attempting to drive when he was in excess of the permit- ted level of alcohol. At his trial in the District •Court, it was argued that the defendant had not been validly arrested since the offence of 'drunk driving' was, if anything, an of- fence under s.49(1) of the 1961 Act and not the offence under s.49(3) with which the defendant had been charged, and that, ac- cordingly, the defendant had not been propely informed of the basis on which he was being arrested. This point was accepted by the District Court judge. On case stated to the High Court HELD by Blayney J finding the District Court judge had erred in law: the description 'drunk driving' applied equally to s.49(1), (2) and (3) since clearly the reason why driving under the three different cir- cumstances was prohibited was because the concentration of alcohol in their systems would be likely to impair the ability to have proper control of a motor vehicle, and thus in substance there was very little difference between the three subsections; and since the purpose of the rule requiring that the Garda inform the person of the reason for an arrest is based on ensuring that the arrested person knows in substance why he is being arrested, rather than is given a technical explanation, the use of the phrase 'drunk driving' in the instant case was a sufficient communication of the reason for the arrest. Christie v Leachinsky [1947] AC 573 ap- plied. Per Blayney J: in light of the positive result from the breathalyser test, the defend- ant must have been well aware of the basis for his arrest, and so it must be doubtful whether the Garda was required to explain the basis on which he was being arrested. Director of Public Prosecutions v Rooney High Court 25 May 1992 CRIMINAL LAW - GARDA POWER TO STOP AND SEARCH - WHETHER GARDA SHOULD FIRST IN- FORM PERSON OF BASIS ON WHICH SEARCH POWER BEING EXERCISED - WHETHER NECESSARY TO AR- REST PERSON BEFORE EXERCISING SEARCH POWER - Dublin Police Act 1842, s.29 - Constitution, Article 40.4 The defendant, while walking on a street in Dublin, had been approached by a member of the Garda Siochana and was asked what money he had in his hand. On showing a 10 and 5 note, he was asked if he had any other money and he said 'No'. The Garda then put his hand in the defendant's pocket, the defendant lifting his hands out of the way to allow the Garda reach towards the pocket. The Garda found a 20 note which he be- lieved was a forgery. The defendant was charged with possession of forged bank notes, contrary to s.8 of the Forgery Act 1913. At his trial in the District Court, objec- tion was taken to the admission ofthe Garda's evidence on the ground that the Garda had failed to inform the defendant of the legal basis on which he was searching the de- fendant. The prosecution relied on s.29 of the 1842 Act, which provides that a mem- ber of the Garda Siochana may stop and search any person who may be reasonably suspected of having or conveying in any manner any thing stolen or unlawfully ob- tained. On case stated to the High Court

HELD by O'Hanlon J: (1) although the power to stop and search contained in s.29 of the 1842 Act was less drastic in its effect than a power of arrest, it nonetheless amounted to a substantial and significant interference with the liberty of the subject; and if the constitutional guarantees of liberty of the person were to be adequately defended and vindicated, it required that before the power of search in s.29 could be lawfully exer- cised, the person stopped was entitled to be informed of the nature and description of the statutory power being invoked, namely that he was suspected of having or convey- ing something stolen or unlawfully obtained, and inform the person of the search power contained in s.29 of the 1842 Act. Christie v Leachinsky [1947] AC 573 and The People v White (1947] IR 247 referred to; (2) it was not required to arrest the person prior to exercising the power to search, unless this was necesary for some other reason. Doolan v Director of Public Prosecutions High Court 15 September 1992 CRIMINAL LAW - OFFENCE - 'INDECENT ASSAULT' - WHETHEROFFENCE KNOWN TO THE LAW WHETHER CONSTITUTING ASSAULT WITH AGGRAVATING FEA- TURES - STATUTE PROVIDING PENALTIES FOR INDE- CENT ASSAULT BUT NOT EXPRESSLY CREATING OF- FENCE - FORM OF INDICTMENT - COMMON AS- SAULT INCLUDED AS ALTERNATIVE TO INDECENT ASSAULT CHARGE WHETHER BAD FOR DUPLICITY - Offences against the Person Act 1861, s.52 - Criminal Law Amendment Act 1935, s.6 - Interpretation Act 1937, s. 14 - Criminal Law (Rape) Act 1981, s. 10 - Criminal Law (Rape) (Amendment) Act 1990, s.2 The applicant was indicted in the Circuit Criminal Court, the indictment containing two counts. The first count was indecent assault on a named female, the particulars being 'contrary to common law as provided for in section 10 Criminal Law (Rape) Act 1981. Contrary form of the statute in such case made and provided.' The second count was assault, the particulars being 'contrary to common law and contrary to form of the statute in such case made and provided.' The applicant's counsel argued that there was no offence known to the law as inde- cent assault. This argument was rejected by the Circuit Court judge (Judge Moriarty). The applicant entered a plea of guilty to the second count. The applicant then applied on judicial review for an order of prohibi- tion, on the grounds that the offence of indecent assault was unknown to the law and, in the alternative, that having accepted the guilty plea to the second count on the indictment, the trial court was precluded from proceeding with Count No.1, the inde- cent assault charge, since it amounted to a charge of simple assault, albeit of a higher category to that in Count No.2. HELD by O'Hanlon J dismissing the application for judicial review: (1) assault was a misde- meanour at common law, which was indict- able at common law according to the aggra- vating features associated with particular forms; (2) having regard to the wide mean- ing given to assault, which could incorpo- rate what was strictly speaking a battery, it was thought right to regulate by statute the penalties that could be imposed for different circumstances of assault, and this involved a statutory regulation of the penalty to be imposed for the old common law misde- meanour of assault; and accordingly, stat- utes which provided for a penalty for inde-

types of publ ic broadcast of Irish recordings. A number of parties, including Radio Telefis Eireann (RTE) and various disco operators, respondents in the instant proceedings, were i n d ispute with PPI as to the rate of 'equ itable remuneration' properly payable under s.17 of the 1963 Act and they referred the dispute to the Controller of Industrial and Commer- cial Property pursuant to s.31 of the 1963 Act. The Controller had decided that he had jurisdiction to hear the references under s.31 of the 1963 Act, and PPI then sought judicial review of this decision. PPI argued that only a reference under s.32 of the 1963 Act couId be made, since s.31 was Iimited to disputes concerning 'published' material, whereas RTE and the disco operators also sought to dispute the rate of equitable remu- neration on future recordings. Where a dis- pute is referred to the Controller under s.31, persons broadcasting or otherwise using the copyright material will not be deemed to infringe the copyright provided they give an undertaking to pay the amount determined by the Controller. Such an undertaking had been given by the respondents. HELD by Barr J granting the applicant the relief sought: (1) having regard to the wording of ss. 17 and 31 of the 1963 Act, it was evident that a dispute referred to the Controller under s.31 could not include the broadcasting or public user of a published recording in the future; and therefore the right to continue to broadcast material which is in dispute sub- ject to an undertaking does not include future use or broadcasting; (2) although RTE had argued that, since it was a statutory broadcasting body, it was not required to seek a licence from PPI in the way that the disco operators were, this was irrelevant since the crucial queston was whether a licence scheme existed; and s.32 of the 1963 Act envisaged that a licence scheme was in the nature of a standing invitation to treat and that a reference under s.32 was not dependent on the existence of a licensor- licensee relationship. Performing Rights Society Ltd v Workingmen's Club and Insti- tute Union Ltd [1988] FSR 586 approved; (3) the tenor of the 1963 Act was that, where a licensing scheme was in existence, the mat- ter should be referred to the Controller un- der s.32 whose decision would be binding on all members of the class of persons affected by the decision but that, pending the decision of the Controller, the require- ment to pay the amount set in the scheme continued to apply to al I persons covered by the scheme; and accordingly in the instant case the Controller only had jurisdiction to hear a dispute under s.32 of the 1963 Act. D.P.P. (Cloughley) v Mooney High Court 24 June 1992 CRIMINAL LAW - ARREST - WHETHER PERSON IN- FORMED OF BASIS FOR ARREST - WHETHER TECHNI- CAL LANGUAGE REQUIRED - ROAD TRAFFIC - DRIV- ING WITH EXCESS OF ALCOHOL - GARDA INFORM- ING SUSPECT HEWAS BEING ARRESTED FOR 'DRUNK DRIVING' - Road Traffic Act 1961, s.49 The defendant had been stopped by a Garda while driving his car. The Garda got a smell of intoxicating liquor from the defendant and his speech was slurred. A breathalyser test proved positive. The Garda formed the opinion that the defendant was committing an offence under s.49(2) or (3) of the 1961 Act. He arrested the defendant under s.49(6)

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