The Director of Public Prosecutions (at the suit of Garda Padraig Lynn) (appellant) v Ivan O'Kelly (respondent).

Case Stated - Treatment of persons in custody in Garda stations - Information to be given to an accused person on arrest - Whether onus on member in charge to be satisfied accused understood his rights - Essential proofs - Evidence that the words were spoken and the notice handed over - Whether that evidence sufficient proof - Rule against hearsay - Summary Jurisdiction Act 1857 (19 & 20 Vic., c. 43), section 2 - Road Traffic Act 1961 (No 24), sections 6(a), 49(2) and 49(8) - Road Traffic Act 1994 (No 7), section 10 - Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 (No 119).

The High Court (before Mr Justice McCracken); judgment delivered 10 February 1998.

The duty imposed on a member in charge of a Garda station by the 1987 Regulations is to ensure an accused is informed of his rights. The duty does not require the member in charge to satisfy himself the accused understands his rights. Once there was evidence that the requisite words were spoken and the notice of rights handed over the essential proofs had been established.

The High Court so held in answering the first question posed in the case stated in the negative.

Adrienne Egan BL for the appellant; Martin Dully BL for the respondent.

Mr Justice McCracken said that on 12 February 1996 Judge Windle stated a case to the High Court pursuant to section 2 of the Summary Jurisdiction Act 1857. The case stated concerned a net point regarding evidence of compliance with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987.

Mr Justice McCracken outlined the background to the case. He said that the respondent had been arrested under section 49(8) of the Road Traffic Act 1961 and subsequently charged under section 49(2) and section 6(a) of the 1961 Act. An application for an adjournment was made by the solicitor for the Director for Public Prosecutions to enable Sergeant Kenny, the member in charge of the relevant Garda station, to attend court. The adjournment was refused and the prosecuting garda, Garda Lynn, gave evidence that he heard Sergeant Kenny tell the respondent why he had been arrested, that he had a right to call a solicitor or other person and that he could exercise those rights at any time. He also said that the respondent was given a notice of rights for persons in custody. Mr Justice McCracken said that at the close of the prosecution case the solicitor for the respondent submitted that the evidence of Garda Lynn in relation to the custody regulations was inadmissible as it was hearsay evidence. Accordingly, there was no evidence that the regulations had been complied with or that the respondent had been given the necessary information. Judge Windle accepted the submission and held there had been a failure to prove compliance with the regulations.

District Judge Windle sought the opinion of the High Court on the following questions:

(a) Was I correct in law in holding that the evidence of Garda Lynn as to compliance by Sergeant Kenny with the regulations was hearsay?

(b) If the answer to question (a) be in the affirmative, was I correct in law in holding that the evidence of Garda Lynn, being hearsay, did not fall within any exception to the rule against hearsay as set out in the within case stated?

(c) If the answers to question (a) and question (b) be in the affirmative, was I correct in law in holding for the reasons set out in this case stated that I should exercise my discretion as to whether to admit the evidence gathered pursuant to section 13 of the Road Traffic Act 1994 in favour of the respondent?

Mr Justice McCracken said the regulations required that certain information be given to an accused person on his arrest and that he be given a written document setting out his rights by the member in charge of the relevant station. The court rejected the contention advanced on behalf of the respondent that this imposed an onerous duty on the member in charge which required that he be satisfied the accused understood his rights, as the purpose of the regulations was to ensure that the accused was aware of his rights.

The regulations required that the accused be informed of his rights, whether he understood them or not. The essential proof at the hearing was that he was so informed. In the opinion of the court, all that was required was that the relevant information be given to the accused and the relevant notice handed to him. Mr Justice McCracken said that the only evidence required to be given was that the words were spoken and the notice handed over. Garda Lynn was entitled to give evidence of the facts and he did so saying that he heard the words being spoken in the presence of the accused and saw the notice being handed over. Mr Justice McCracken referred to the judgment of Mr Justice Kingsmill Moore in Curran v Clarke [1963] IR 368 where the rule against hearsay was considered. In that case Mr Justice Kingsmill Moore said, at page 378, that the utterance of the words could itself be a relevant fact, quite apart from the truth or falsity of anything asserted by the words spoken. To prove by the evidence of a witness who heard the words that they were spoken was direct evidence and did not encroach on the general rule against hearsay.

Mr Justice McCracken concluded that there had been sufficient evidence before the District Court that the respondent had been given the necessary information pursuant to the custody regulations.

Mr Justice McCracken answered the first question posed by the learned District Judge in the negative and therefore the other two questions did not arise.

Solicitors: Chief State Solicitor for the appellant; David M. Turner (Dublin) for the respondent.

Miriam Reilly Barrister