Defences of Duress and Necessity used for the first time ever in a drink driving prosecution.
Galway District Court 18 February 2022.
A WOMAN WHO WAS ALMOST THREE TIMES over the legal limit was acquitted at Galway District Court before Judge John Brennan on 18 February 2022.
The woman (Miss B), represented by Patrick Horan and Colm Hennessy B.L., had been arrested in Salthill in Galway on 4 July 2020 by Garda Sharon Keaveney of Salthill Garda Station.
Her acquittal, on the grounds of both duress and necessity, is the first recorded use of these defences for a drink driving prosecution in Ireland.
Garda Keaveney stated that she had been on duty on 4 July 2020 when she received a report of a white Audi car driving erratically on the Salthill Promenade. It was 10:25pm. She said that she observed the car driving at speed towards the Salthill Hotel and followed it. She said that it didn’t slow down and that it drove very quickly into the underground car park stopping in a no-parking area, facing a wall.
"She was extremely upset.
She had completely lost it.
It appeared that she gave her
driving licence to me
because she couldn’t talk”
Garda Keaveney said that the female driver (Miss B.) “was very upset and could only be described as effectively hysterical”. She was crying and when asked for her name she could not speak. She produced her driver’s licence to the Gardai. She was slurring her speech, her eyes were bloodshot and she could barely speak while crying.
She told Garda Keaveney that she had a row with her boyfriend in the hotel and had decided to drive home to Dublin. As she drove down the promenade towards Galway City she changed her mind and decided to go back to the hotel.
A breath sample was demanded at the scene and though Miss B. complied she could not produce a sufficient sample. She was arrested and taken to Garda North Western Regional Headquarters (Galway Garda Station). A Nurse was called, and Miss B. provided a specimen of urine. A later analysis showed a reading of 191 mgs of alcohol per 100 mls of urine.
IN CROSS EXAMINATION Colm Hennessy B.L. defending asked Garda Keaveney where she had first seen Miss B.
Garda Keaveney stated that she had first seen Miss B about a kilometer from the hotel. She was extremely upset, crying and couldn’t speak.
Mr Hennessy asked Garda Keaveney if she had been told by Miss B that she had been assaulted.
Garda Keaveney stated that “she did show me her arms but I didn’t see any bruises”. However she accepted that she had offered to have her boyfriend removed from the hotel if Miss B wanted.
“You could have given him a direction to leave?”
“Yes. She was extremely upset. She had completely lost it. It appeared that she gave her driving licence to me because she couldn’t talk”
Mr Hennessy then called Miss B to take the witness box and give evidence.
He put it to her that she had been driving while intoxicated.
Miss B agreed.
“Why were you in the car”?
“My boyfriend physically assaulted me. He pushed me on the ground and I grabbed my keys and drove my car”.
“When did you decide to come back”?
“At the roundabout, I came back”.
“Did you complain to the Gardai about being assaulted”?
“At the time I was just crying and I couldn’t get anything out. I showed my arms”.
“What was your intention when you went back”?
“I knew I couldn’t physically drive”.
“What was your state of mind in the car”?
“Full of fear. I needed to get out of there, otherwise I’d have got a hiding. He pushed me to the ground and he dragged me. I got my keys and ran”.
“When you were assaulted in the hotel why not just ring the Gardai”?
“I felt that I needed to go. I was afraid he’d come back to me”.
In cross-examination Inspector John Malone put it to Miss B that she had been drinking. She agreed.
“Why did you not just ring 999”?
“I honestly never thought of it. I was in fear. I just wanted to get out of there”.
“Garda Keaveney said she’d get rid of him”?
“Yes. She asked me if I wanted to press charges”.
“Had he assaulted you before”?
“No”.
In his submissions to the Court Mr Hennessy accepted that it was an unusual case.
Judge Brennan agreed.
Mr Hennessy referred to the caselaw on both duress and necessity. He said that the test to be applied by the courts was an objective one. He acknowledged that there were no reported cases in Ireland on this issue.
He referred to the UK case of DPP v Bell. In that case the defendant had left a nightclub intending to go home. He spoke to a girl and later had to retreat after being pursued by a mob. In his attempts to get away he drove over a friend.
The court agreed that the defence of Duress may be established where it is a matter of seriousness. But the prosecution must negative that defence.
Mr Hennessy stated that Miss B. did say that she intended to drive home but did not. There was evidence -which was uncontradicted- of an assault. There was no suggestion by the State that she had not been assaulted.
He referred to the 1933 Court of Appeal case of AG v. Peter Walsh. That case involved duress as to a threat of violence. In that case the defendant had received stolen goods while under threat of violence from a third party.
-“What was your state of mind in the car”?
-“Full of fear. I needed to get out of there,
otherwise I’d have got a hiding.
He pushed me to the ground and he dragged me.
I got my keys and ran”.
Mr Hennessy expanded the issue of duress.
For the defence of Duress to be successful it had to be shown that the over-powering of the will was justified.
But if duress was raised by the Defence the State had to rebut it. The burden of proof remained with the State.
“We have Miss B who’s assaulted in a hotel room. She leaves. She commits an offence (drink driving) but the defences of Necessity and Duress arise as an actual assault had taken place.
As with other defences the onus lies with the Prosecution to rebut the defence”.
Mr Hennessy returned to AG v. Peter Whelan which established that the will of the defendant had to be overcome by the threat.
“It’s not what you would do but what the defendant perceived at the time that matters”.
Judge Brennan then invited Inspector Malone to respond. He disagreed with the Defence position.
“When she was stopped she was returning back to the threat (the hotel). She passed the Garda station and could have rang 999. She wasn’t in fear”.
JUDGE BRENNAN THEN GAVE HIS assessment of the evidence he had heard.
“I’m satisfied that she told the truth. I’m also satisfied that there was an assault.
This was a situation where a woman found herself away from her natural environment with someone she didn’t know well.
"However, the doctrine (of duress) has to be circumscribed. If she was halfway up the motorway the defence would not be open to her.
It is a complete defence and can be applied”.
Mr Hennessy agreed.
“It’s a ‘fight or flight’ issue. She turned around. Even in the carpark of the hotel she was in an awful state. She couldn’t speak and handed up her driver’s licence. She was pointing to her arms that she had been assaulted”
Judge Brennan accepted that there was corroborative evidence that she had been assaulted.
"She felt that she’d “have got a hiding”.
"I’m satisfied that Whelan can be applied.
The presumption raised rests with the State and they have to rebut it. I find that Miss B. is a credible witness. It is a novel defence, but I’m satisfied that I can accept the defence”.
Judge Brennan dismissed the prosecution case.
To view Mr. Colm Hennessy's Law Library profile please click the link below:
Commentaires