The Gazette 1976

J UNE /J U LY

GAZETTE

1976

lows, as a matter of law, that the convictions have fallen with them— see The State (Kirwan) v. de Burca (1963) I.R. 348. However, where Certiorari has been granted on the basis that the conviction and sentence are a nullity, there is no bar to proceeding afresh with a pro- secution based on the original com- plaint; thus the statutory time limit will not defeat the prosecution. The appeal against the order of Pringle J. will accordingly be al- lowed, and the conditional order of Prohibition will be made absolute. The State (Mairin de Burca) v. District Justice O'hUadhaigh — Supreme Court (Henchy, Griffin and Kenny JJ.) per Henchy J. — unreported — 5 April, 1976. ROAD TRAFFIC The caution under the 1969 Regula- tions does give a caution as to the possible effects of a refusal or failure to permit a blood sample to be taken. The defendant was charged with refusing to take a blood sample, or to provide a urine sample, by a designated doctor, under S.30 of the Road Traffic Act 1968, in order to ascertain the content of alcohol in his blood. The defendant seemed to be driving on the highway under the influence of drink, was arrested by a Garda, and brought to a Garda station. The Garda Sergeant told defendant he was calling a doctor to examine him, and invited him to have a doctor of his own choice at his expense, which offer was de- clined. The sergeant then gave the defendant the requisite caution under the Road Traffic Act 1968 (Part V) Regulations 1969. The de- fendant, having opted for a blood specimen, expressed a wish to have his own doctor to be present; this doctor refused to come. The de- fendant then refused to permit the Garda doctor to take a blood speci- men unless his own doctor was pre- sent, and thus, as a result of a clear refusal, no specimen was taken. The defendant was duly con- victed in the District Court. On appeal to the Circuit Court, Judge Sheehy stated a case to the Sup- reme Court that the caution given by the defendant which had been made in accordance with the 1969 Regulations, fell short of the cau- tion required by S.36(l)(b) of the 1968 Act. Once the defendant was arrested, under S.49(4) of the Road Traffic Act 1961, he became liable, in a prosecution under S.30(3) of the 1966 Act, to a mandatory dis-

qualification of his license if con- victed. The prescribed caution, punctiliously given under the 1969 Regulations, gave no warning that such mandatory disqualification would attach to a conviction. Nevertheless this omission does not invalidate the caution. The 1969 Regulations, in providing for a caution, fully complied with what is required by S.36(l)(b) of the 1968 Act. The Regulation was made to complement the requirement laid down by the caution of the "possible effects" of a refusal or failure, not of the "possible consequences" of a refusal or failure. Consequently the words "possible effects" refer to the actual immediate legal situation under the Road Traffic Acts in which the arrested person may find himself in the sort of case contem- plated by S.30(3) of the 1968 Act, namely the liability to prosecution. Judge Deale, in the Attorney Gene- ral v. Jordan, 107 I.L.T.R. 112 (1974), had decided the contrary, but his judgment is erroneous, and should be overruled. Accordingly the caution laid down by the 1969 Re- gulation does give a caution as to the possible effects of a refusal or failure to permit a blood sample to be taken. The case will be returned to the Circuit Court to be dealt with accordingly. Garda Grogan v. Byrne — Supreme Court (Henchy, Griffin and Kenny JJ.) per Henchy J. — unreported — 8 April, 1976. CONTEMPT OF COURT Circumstances under which an ap- plicant is ordered by the Circuit Court to purge his contempt are not the subject of Habeas Corpus pro- ceedings. Application for Habeas Corpus. The prosecutor was defendant in pro- ceedings instituted in the Galway Circuit Court in respect of owner- ship of lands and his brother was plaintiff. On 28 June, 1973, the Cir- cuit Judge made an order restrain- ing the defendant from entering the lands, and, on appeal, this order was confirmed by the High Court in October, 1973. The defendant, hav- ing been served with the order, dis- obeyed it. Having heard a motion for his attachment and committal, Mr. Justice Durcan, then Circuit Judge of Galway, committed the de- fendant to prison on 30th October, 1974, and, on 12 December, 1974, the defendant was duly imprisoned to purge his contempt. On 24th December, 1974, the Minister for Justice made an order transferring 13

RECENT IRISH CASES PROHIBITION

Order of Prohibition made absolute, because preceding Order of Cer- tiorari had quashed conviction and sentence. The defendant prosecutor was charged in Dublin District Court in June, 1970, with offences of causing malicious damage. District Justice O'hUadhaigh convicted her of each offence, and imposed a sentence of two months concurrent imprison- ment in respect of each offence. The Justice inadvertently entered up on the Charge Sheet in each case a sentence of three months imprison- ment. The defendant then moved in the High Court to have the con- victions and sentences as recorded quashed on Certiorari. In February, 1971, O'Keeffe P. made an absolute order of Certiorari quashing the sen- tences. Inter alia, O'Keeffe P. had stated (1) that it was the duty of the District Justice to make a correct entry in place of that quashed by him, and (2) if the District Justice refused to do so, it would be open to the prosecution to compel him by Mandamus to do so. On appeal to the Supreme Court against those observations, that Court held that O'Keeffe P.'s observations were made obiter, and dismissed the ap- peal. The prosecution then served on the defendant a Notice of Motion to apply to District Justice O'hUa- dhaigh in June, 1971, "to conclude this matter by making the correct entry". The defendant then applied in the High Court for a Conditional Order of Prohibition to prevent the District Justice from hearing that application. It was contended that the judgment of O'Keeffe P. had the effect of quashing both convic- tions and sentence. The High Court would not grant the Conditional Order of Prohibition, but, on ap- peal, the Supreme Court did so. The matter then went back to the High Court and Pringle J. held that the cause shown by the District Jusice should be allowed, and consequently discharged the Conditional Order of Prohibition. The defendant appealed to the Supreme Court against Pringle J.'s decision. The argument in the Supreme Court acknowledged that O'Keeffe P. had made a valid order, but would it have the effect of quash- ing convictions and sentence, as contended by the defendant, or sen- tence only as contended by the pro- secution? It was correctly contended that, since the sentences had been quashed on Certiorari that it fol-