Court holds that 'intent to drive' requires a present intention to drive while in charge, not a future one.

THE SUPREME COURT

Record No: 226/00

Keane, C.J.

Murray, J.

Fennelly, J.

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

AND IN THE MATTER OF A CASE STATED IN RELATION TO A PROSECUTION ENTITLED

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

-AND-

EDWARD BYRNE

Defendant

Judgment delivered the 6th day of December, 2001 by Murray, J.

The issues in this case arise out of a Case Stated by Judge Michael White of the Circuit Court pursuant to Section 16 of the

Courts of Justice Act, 1947. The Case Stated itself arises out of proceedings against the above named Defendant in which the

offence alleged is of being in charge of a motor vehicle with intent to drive when he had in his body a quantity of alcohol in

excess of that stipulated by law, contrary to Section 50 (3) of the Road Traffic Act 1961 as amended. He had been convicted

of the offence in the District Court and the case is now before the Circuit Court on appeal by way of rehearing.

The facts and circumstances of the case are set out in the case stated as are the specific questions of law posited by the

learned Circuit Court Judge for determination by the Supreme Court. For the sake of convenience I will quote the relevant parts

of the case stated:-

“1. At a sitting of the Circuit Court held at The Four Court, Dublin 7 the Defendant appeared before me to answer the

complaint of the Director of Public Prosecutions at the suit of Garda Kinneen in the summons served on the Defendant

that the said Edward Byrne on the 13th day of February 1988 at Navan Road, Ashtown, Dublin 15, in said district, were in

charge of a mechanically propelled vehicle, registered number 90 LS 2030, in a public place with intent to drive the said

vehicle (but not driving or attempting to drive it) when in your body there was present a quantity of alcohol such that,

within three hours of having been so in charge of the vehicle, the concentration of alcohol in your urine exceeded a

concentration of 107 milligrammes of alcohol per 100 millilitres of urine.

Contrary to Section 50(3) and 6(a) of the Road Traffic Act 1961, as inserted by Section 11 of the Road Traffic Act 1994.

The said Defendant had been convicted of the said offence by a Judge of the District Court and was sentenced

accordingly. The case came before me by way of Appeal against the Order of the District Court aforesaid: -

2. The facts proved or admitted were as follows:-

(a) On the 13th of February 1998, Garda Sean Kinneen, a member of An Garda Siochana stationed at Cabra, was

on duty in the official Cabra patrol car. At approximately 1.20 a.m. he observed a blue Peugeot 405, registration

number 90 LS 2030 parked on the hard shoulder of the Navan Road, Ashtown, Dublin 15. The lights were on in this

car and as he pulled along side it he could see the Defendant asleep in the driver’s seat.

(b) Garda Kineen got out of the patrol and knocked on the window of the Peugeot, but could get no response. Then

opened the car door and observed the keys in the ignition which were turned “two clicks” to ready. Garda Kinneen

shook the Defendant and called “wake up” to awaken him and did in fact then waken him.

(c) Having awoken the Defendant from his sleep, Garda Kinneen noted the Defendant’s eyes were bloodshot and

bleary and when the Defendant spoke, his breath smelt of intoxicating liquor. Garda Kinneen asked the Defendant

to step out of the car, when he did so he was very unsteady on his feet.

(d) At this stage Garda Kineen cautioned the Defendant as follows:

“You are not obliged to say anything unless you wish to do so, but anything you say will be taken down in

writing and may be given in evidence.”

Garda Kinneen then asked the Defendant if he had much to drink to which he replied “a few”.

(e) Garda Kinneen told the Defendant that he had formed the opinion that the Defendant had consumed an

intoxicant to such an extent as to have him rendered incapable of having proper control of a mechanically

propelled vehicle in a public place, and was subsequently arrested under Section 50(10) of the Road Traffic Act

1961/94 as amended. Garda Kinneen then explained to the Defendant that he was arresting him for being drunk in

charge of a car. The time of the arrest was 1.25am.

(f) Garda Kinneen then conveyed the Defendant to Cabra Garda Station. Upon arrival at the station he introduced

the Defendant to Garda Yvonne Burke, member in charge of the station. He observed the custody record being

filled out and a Form C. 72 handed to the Defendant and then explained to him.

(g) Garda Kinneen then informed the Defendant that a designated doctor would be called on behalf of the Gardaí

and that he could have his own doctor present at his own expense. At 1.40 a.m. Dr. Maloney was called and he

arrived at 2.40 a.m. At 2.42 am. Garda Kinneen introduced the Defendant to Dr. Maloney as a designated doctor.

(h) Garda Kinneen informed the Defendant that he was requiring him under Section 13 (1) (b) of the Road Traffic

Act 1961 /94 to permit Dr. Maloney to take from him a sample of his blood or at his option provide Dr. Maloney

with a sample of his urine. Garda Kinneen also informed him of the consequences of failure or refusal to do so. The

Defendant opted to provide a sample of urine and did so at 2.47 a.m.

In compliance with Section 18 of the Road Traffic Act 1994, Dr. Maloney divided the specimen into two parts by

placing each in specimen bottle, which he sealed and them completed the prescribed form. Garda Kinneen handed

the Defendant the yellow form and explained to him that he could retain either of the specimens and he opted to

do so. Dr. Maloney placed the remaining container into the box along with the completed certificates and sealed

the box.

(i) Garda Kinneen sent the box to the Medical Bureau of Road Safety and retained the postage certificate. He

subsequently received a certificate from the Bureau indicating a concentration of 228 milligrams of alcohol per 100

millilitres of urine.

( j) The Defendant gave evidence that he was sleeping deeply until awoken by garda Kinneen and that at the time

he was awoken by Garda Kinneen he did not have any intention to drive the car. On cross examination the

Defendant went on to say that he had fallen asleep without intending to do so and that his falling asleep was a

non-conscious act.”

3. At the close of the prosecution case it was submitted to the Court by Mr. Horrigan appearing on behalf of Mr Byrne

Defendant that based on Mr Byrne’s own evidence and the evidence of Garda Kinneen that Mr. Byrne had been found

asleep in his car and found so deeply asleep that it was necessary for Garda Kinneen to touch him and call him to wake

him up that this evidence was undisputed. It was submitted that Mr. Byrne was so deeply asleep at that juncture that

he could not be said to be in charge of the car and that being so asleep he further could not be said to have an intention

to drive the vehicle. Mr Horrigan further submitted that in order to sustain this conviction it must be proven that the

Defendant had an intention to drive his car. Since the Defendant was asleep it was submitted that he could have no such

intention and that what he intended to do before he awoke was immaterial.

4. In reply Ms. Noreen Landers, Solicitor, who appeared on behalf of the Prosecutor, submitted that Mr. Byrne was found

in his car with the keys in the ignition, turned to the ready position. She further submitted that he had not yielded up

charge of a vehicle to any other person and that he remained in charge of the vehicle and that on Mr. Byrne’s own

evidence his falling asleep was an unconscious act which he had not intended and that his act of falling asleep did not

amount to Mr. Byrne forming an intention not to drive.”

At the conclusion of the Case Stated the learned Circuit Court Judge stated that having heard submissions of the parties he

“was of the opinion that the statute only allowed me to consider the intention of the Defendant only as and from the time

garda found the Defendant in the car.” He then went on to set out the questions of law in respect of which the case was

stated:

“6. The questions of law for the Supreme Court are as follows: -

(i) Whether on the facts set out above, I am entitled to hold that the Defendant was in charge of a mechanically

propelled vehicle in a public place with intent to drive.

(ii) Can I consider the intentions of the Defendant before he went to sleep, as referred to in the Statement of

Facts as set out at Paragraph 3.”

Arguments of the Parties:

Counsel on behalf of the D.P.P. submitted that the first question which arose was whether the Defendant could be found to be

“in charge” of the motor car in question and from what point in time he may be considered to have been “in charge” of the

vehicle. The expression “in charge” is not defined in the Act and whether a person is “in charge” of a motor car at a particular

time is a question of fact to be determined from the circumstances of the individual case. Counsel submitted that in this case,

having regard to the facts as found and set out in the Case stated the evidence before the Circuit Court was that the

Defendant, having been found by the garda member in the driver’s seat with the keys in the ignition had obviously entered the

car earlier and, on his own admission involuntarily fallen asleep. He submitted that the Defendant must or may be found to have

been in charge of the motor car from the time he got into the car and that he remained in charge of the car up and including

the time when the garda member arrived and woke him up. The fact that he had fallen asleep in the meantime did not alter the

fact that he was a person in charge of the motor car within the meaning of Section 50 of the Act, as amended. In support of

this submission Counsel relied on an English decision in D.P.P. -v- Watkins [1989] R.T.R. 324 at 321 in which it was held “If the

Defendant is the owner or lawful possessor of the vehicle or has recently driven it, he will have been in charge of it and the

question for the Court will be whether he is still in charge or whether he has relinquished his charge ... Usually such a

Defendant will be prima facie in charge unless he has put the vehicle in someone else's charge. However, he would not be so if

in all the circumstances he has ceased to be in actual control and there is no realistic possibility of his resuming actual control

while unfit e.g. If he is at home in bed on the night or if he is a great distance from the car or if it is taken by another”

Counsel submitted that in this case it may and ought to be properly inferred that the Defendant was the lawful possessor of the

vehicle and/or had recently driven it. This is supported by the fact that the lights were on in the car when it was observed by

the Prosecuting Garda. The Defendant was in the driver’s seat and the keys were in the ignition and had been turned “two

clicks” towards full ignition. There was no basis on which it could be inferred that he had relinquished possession to any other

person. In conclusion, it was submitted, that in these circumstances the learned Circuit Judge ought to conclude that the

Defendant was “in charge” of the vehicle at the time the prosecuting garda came upon the scene and found him in the motor

car.

Secondly, Counsel for the D.P.P. addressed the question as to whether the Defendant could be found to be in charge of the car

“with intent to drive”. First of all Counsel submitted once it has been found that a person is in charge of a motor car there is a

statutory presumption that he or she has an intent to drive it for the purposes of the section. Section 50 (8) of the Road

Traffic Act, 1961, as inserted by Section 11 of the Road Traffic Act , 1994 provides: -

“(8) In a prosecution for an offence under this section, it shall be presumed that the Defendant intended to drive or

attempt to drive the vehicle concerned until he shows the contrary.”

Subsection 8 refers to a prosecution pursuant to Section 50 for an offence of being in charge with intent to drive while under

the influence of alcohol or the offence of attempting to drive while under the influence of alcohol. An interpretation of the

subsection in the context of the Section as a whole means that the statutory presumption arises, and only arises, when it has

been established that the person being tried for the offence was in charge of the vehicle or attempting to drive the vehicle. It

was submitted that the onus is on the Defendant to rebut the presumption. In the circumstances of the case it was open to

the learned Circuit Court Judge to hold that the statutory presumption had not been rebutted. It was submitted that intent to

drive relates to an intent as to future conduct. It was open to the Circuit Court to conclude that when the Defendant was in

the motor car prior to involuntarily falling asleep he had an intention to drive. The fact that he had fallen asleep before giving

effect to that intention did not mean that intention lapsed or ceased to exist. At all relevant times the Defendant had remained

“in charge” of the vehicle and although he had said in evidence that at the time when he was woken by the garda, he had no

intention of driving the car, it was open to the learned Circuit Court Judge to reject that evidence and conclude that he was at

that point in charge of the vehicle when an intent to drive within the meaning of the section.

Counsel for the Defendant submitted that the offence alleged must be established to have been committed at a particular point

of time. This is evidenced by the requirement of the subsection that a person is guilty where the concentration of alcohol

exceeds the permitted limit “within three hours after so being in charge.” Counsel submitted that in this case the only point in

time when the offence could be alleged to have been committed is at the point when the investigating garda came upon the

Defendant and found him asleep in the car. If no particular point in time can be identified at which the Defendants could be said

to be in charge it would be impossible to determine the issue whether or not the concentration of alcohol in the Defendant’s

urine exceeded the permitted level within a period of three hours. Although Section 50 (8) of the 1961 Act, as inserted by

Section 11 of the 1994 Act, creates a presumption to the effect that a Defendant is presumed to have intended to drive, this

presumption is defeated by the fact that the Defendant was asleep. Since he was asleep the Defendant cannot have had an

intention to drive. The two questions posed in the case stated should be answered firstly, by holding that the learned Circuit

Judge was not entitled to conclude that the Defendant was in charge of the vehicle in a public place with intent to drive

because the evidence does not indicate any such intent and secondly the learned Circuit Judge should not consider the

intentions of the Defendant before he went to asleep since no point in time has been established at which those intentions are

to be considered. Furthermore, it was submitted the intention to drive must be an immediate one.

The First Question:

There are two elements in the first question. Firstly, whether, on the facts, the learned Circuit Judge is entitled to hold that the

Defendant was in charge of the vehicle and secondly, if so, is he entitled to hold that there was an intent to drive.

These issues fall to be considered in the context of the point in time in respect of which it may be open to the Circuit Judge to

hold that the offence alleged was committed. In the terms of Section 50 (2) of the Act the offence is committed when a person

who is in charge of a vehicle with intent to drive has in his body an impermissible quantity of alcohol “within three hours after

so being in charge”. Self-evidently therefore if the court of trial is satisfied that a Defendant was in charge of a vehicle with

intent to drive at any point in time during that three hour period then it must convict for the offence. For the sake of

convenience I use the term “satisfied” as shorthand for satisfied beyond reasonable doubt. In practical terms, on the facts of

this case (including the undisputed fact that the Defendant was found to have an impermissible level of alcohol in his body

within three hours of the garda member finding him in the car) it means that the learned Circuit judge must be satisfied that the

Defendant was in charge with intent to drive at some point during the period from when the garda member observed the

Defendant in the car and arrested him.

‘In charge of a vehicle’

Counsel for the Defendant, understandably, did not really take issue with the submission on behalf of the D.P.P. that the

Defendant, on the facts of this case may be considered at all material times to have been in charge of the vehicle. He focussed

his submissions on the contention that since the Defendant was asleep when found by the garda there could have been no

intent to drive. However, since the first question as posed by the learned High Court Judge raises the question of whether the

Defendant may be found to have been ‘in charge’ of the vehicle and having regard to the facts of the case as a whole I think I

should make some limited reference to this point.

The notion of ‘in charge’ of a vehicle is a very general one and will fall to be applied in a wide variety of circumstances or

combination of circumstances. There is no statutory definition. The words of the section must be given their ordinary and

natural meaning and the term “in charge” of a vehicle must be applied in a common sense way. Interestingly, there are no

authorities on the interpretation of this phrase, which would seem to indicate that the courts which have to apply this section,

in particular the District Court, have not found any substantial difficulty in applying its terms. Nor is there a reported decision on

‘being in charge’ of a carriage while drunk contrary to the Licensing Act 1872. That said it must also be said that the application

of the section in question to a person found asleep in the motor vehicle was raised in a previous Case Stated but which, for

various reasons was not proceeded with to final decision.

Evidently, a great deal depends on the facts of the particular case and for that reason I do not think it wise nor indeed possible

to prescribe a set of criteria which would provide an answer in all cases for the question, “Was the Defendant in charge of the

motor vehicle.?” The English authorities which relate to this issue are at best of a limited value since the relevant English

statute has quite a different structure to that of the Road Traffic Act 1961, as amended, although the particular citation relied

upon by the D.P.P. from D.P.P. -v- Watkins (cited above), is helpful. In that case it was also acknowledged that “... no hard and

fast all-embracing test can be propounded as to the meaning of the phrase, in charge” In the circumstances I think it is

appropriate to confine myself to making just a few observations on the general notion of “in charge” of a vehicle and then deal

with the particular facts of the case as set out in the case stated. Being in charge of a vehicle has connotations of having

possession or control or being in a position to exercise possession or control. Since the offence is one of being in charge with

intent to drive there must be some proximity or close connection between the circumstances in which a Defendant is found to

‘be in charge’ and the vehicle itself. A person does not have to be in a vehicle in order to be in charge of it. On the other hand

if he was in his home watching television this would normally be too remote to regard such a person, on any common sense

view, in charge of a motor vehicle parked outside, within the meaning of the section.

I turn to consider the factual circumstances of this case. Where a person is found alone in a car, occupying the drivers seat,

with the keys of the car in the ignition (leaving aside for the moment the question of such a person being asleep) it seems to

me that prima-facie he may be considered to be in charge of the motor car. Of course I do not mean to say that all these

ingredients are essential since in particular circumstances a person may be “in charge” even if he does not have the keys or if

he is outside the motor car but in the circumstances which I have indicated prima-facie that would be the case. In this case all

those circumstances were present and more. The car was parked on the hard shoulder of the Navan Road with its lights on and

the ignition key was turned “two clicks” towards the ignition. The Defendant was alone in the car. His evidence was that he had

fallen asleep involuntarily and was asleep when found by the garda. On those facts the Plaintiff was clearly in possession of the

car at the time when the garda member found him. I take the view that he was ‘in charge’ of it within the meaning of the

section. If a driver on a long journey pulls into a lay-by and takes a nap before continuing his journey I not think that he can be

considered to have ceased to being in charge of the car during the period when he was asleep. The fact that in this case the

Defendant fell asleep involuntarily does not, to my mind, alter the position. Nor is there any evidence, in the words of D.P.P. -v-

Watkins as cited above that, having entered the car he had “relinquished his charge”. On the facts set out in the case stated

the Circuit Judge is entitled to hold that the Defendant was in charge of the motor car when Garda Kinneen arrived on the

scene.

‘With intent to drive’ and the second question:

As the learned Circuit Judge implicitly acknowledges in the Case Stated, whether there was an “intent to drive” on the part of a

Defendant who was in charge of a motor vehicle is something which has to be determined having regard to the particular facts

of the case.

With that in mind, I think it would be preferable at this stage to consider the second question posed by the Circuit Judge as to

whether he can consider the intentions of the Defendant before he went to sleep as described in the case stated. To state the

obvious, the Defendant was in the car before he fell asleep, the lights of the car were turned on and the keys placed in the

ignition at some point. There may be certain inferences which can be drawn as to the Defendant’s intentions before he fell

asleep, which is entirely a matter for the Circuit Court Judge, and the question is whether he can consider them. In my view the

answer to the second question is clearly yes.

The circumstances pertaining to the presence of the Defendant in the car prior to falling asleep and his intentions at that time

are directly connected and material to the offence with which he is charged and in particular the issue as to whether he had, at

a relevant time, an intent to drive. It is a matter for the Circuit Judge to determine what those circumstances and intentions

were. These matters, which occurred before the Defendant fell asleep, are in my view part of the res gestae. They are an

intrinsic part of the circumstances being investigated in connection with the offence charged. Evidence which forms part of the

res gestae include acts or incidents which themselves constitute or accompany and explain the facts of the matter in issue.

Items of evidence are said to be part of the res gestae owing to the nature and strength of their connection with the matters

in issue and as such are admissible. (See Halsbury’s Laws of England 4th Ed. 17, para. 6). I would therefore conclude, in answer

to the second question, that the learned Circuit Judge may consider the intentions of the Defendant before he went to sleep.

I now return to the second element in the first question, as to whether on the facts set out in the case stated, the trial judge

is entitled to hold that the Defendant was in charge “with intent to drive”.

Section 50, subsection 8 of the Road Traffic Act, 1961 as inserted by Section 11 of the Road Traffic Act 1964 provides “in a

prosecution for an offence under this section it shall be presumed that the Defendant intended to drive or attempt to drive

the vehicle concerned until he shows the contrary”. Taking that subsection on its own it would seem, on first reading, that the

very fact of a person being a Defendant is enough to raise the presumption of an intention to drive. However, taking the

section as a whole the presumption of an intention to drive only arises where the Court is satisfied that the Defendant was in

charge of the vehicle.

The submission of Counsel on behalf of the Defendant was to the effect that even if the Defendant was at all material times in

charge of the motor vehicle he could not, when found by Garda Kinneen, have had an intention to drive because he was asleep.

Whatever intention he may have had when he got into the car could not have been present due to the fact that he had fallen

involuntarily asleep.

Intention is a sense of purpose as to future action. The fact that a person who is charge of a car falls asleep, even

involuntarily, does not mean that a purpose for which he is in the car has been abandoned, that an intention has ceased to

exist. Returning to the analogy of a driver who pulls into a lay-by to rest during a long journey, the fact that the driver falls

asleep during that rest, voluntarily or otherwise, does not mean that he has abandoned his intention to drive or that it ceases

to exist.

I conclude, therefore, that if the Court is satisfied that the Defendant was in charge of the motor vehicle as charged, the

presumption of intention to drive pursuant to subsection 8 of section 50 arises. It is then for the Defendant to show to the

contrary so as to raise a reasonable doubt in the mind of the trial judge. In deciding the issue it is open to the Circuit Judge to

consider his intentions prior to the Defendant falling asleep.

It was also submitted by Counsel on behalf of the Defendant that the intention to drive must be an immediate intention.

I do not consider there is anything in this section which lends itself to such an interpretation. On the contrary, if one compares

Section 50 (8) as enacted by the 1964 Act with subsection 4 of Section 50 of the 1961 Act which it replaced, it would appear

that the legislature had very much the opposite intention. Subsection 4 of Section 50 of the 1961 Act provided as follows (with

emphasis added): -

“(4) In a prosecution for an offence under this section, it shall be presumed, until the defendant shows -

(a) that at the material time the circumstances were such that there was no likelihood of his driving the

mechanically propelled vehicle so long as he remained unfit to drive, and

(b) that between his becoming unfit to drive and the material time he had not driven the mechanically propelled

vehicle in a public place, that he intended to drive or attempt to drive the mechanically propelled vehicle”.

As will be seen from subsection 4 (a) a Defendant could displace the presumption if he showed that there was no likelihood of

his driving the vehicle “so long as he remained unfit to drive”. In contrast subsection 8 of Section 50 now inserted into the 1961

Act requires a Defendant to show that he did not intend to drive the vehicle in order to rebut the presumption contained in the

subsection. It is not sufficient to show only that he did not intend to drive while he was unfit or during any particular period of

time. That could only have been a deliberate alteration on the part of the legislature. It appears that Section 50 as it now

stands seeks to create an offence of strict, or at least stricter, liability. The mischief which the legislature appears to have in

mind are persons unfit to drive due to the consumption of alcohol who are in charge of a motor vehicle and have an intention to

drive. That is to say, that it is an offence for a person to be in charge of a motor vehicle while at the same time having an

intent to drive when he has in his body a level of alcohol prohibited by statute. Thus, it would not be a defence for a Defendant

to admit that he was in charge of a motor vehicle with intent to drive while unfit due to the consumption of alcohol but did not

intend to drive for 3 ½ hours, 6hrs or as the case may be. The Statute makes it an offence for such an unfit person to be in

charge of a motor vehicle with the requisite intent.

Of course there may be particular circumstances where such a person contemplates driving the motor vehicle at some time in

the future, and it would be an extreme interpretation of the Section and even an absurd one if, in all such circumstances, such

a situation was to be treated as an “intent to drive” within the meaning of the section.

If a car owner left his house solely for the purpose of getting something from the boot of his car parked on the street outside

when he was under the influence of alcohol he may be considered to be ‘in charge’ of the motor vehicle but the fact that he

intended to drive to work the following day would not mean that he was in charge ‘with intent to drive, within the meaning of

the section. There I think the intention would be too remote to fall within the section. The relevant provisions of Section 50

creates an inextricable link between being in charge and the intention to drive. In the example given the sole purpose is to

retrieve something from the car with the intention of leaving the car and returning to his house. There could not be said to be

present in his mind an intention to drive while in charge of the car. There is an intent to relinquish or abandon his charge

without driving. The link between being in charge of a vehicle and the intent to drive must mean that in the circumstances in

which the Defendant is found to be in charge he has an intention, at some point, while in charge, to drive the motor vehicle. It

is that intention which does not have to be immediate or an intention to do so within a particular time-frame. As in all cases of

this nature there is a myriad combination of circumstances which can be conjured up on hypothetical basis. It is really a

question of applying the terms of the relevant subsection to the facts of each case according to their ordinary and everyday

meaning.

Having regard to the foregoing I would answer the two questions posed by the learned Circuit Judge as follows: -

(i) Yes;

(ii) Yes.