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GAZETTE
DECEMBE
R
1981
ROAD TRAFFIC ACTS
In a prosecution for driving while
having excess alcohol In die body,
where a certificate of analysis is
produced by die Bureau of Road
Safety, the onus b on the Defendant
to show that the analysis was not
carried out "as soon as practicable"
and that the certificate of analysis
and copy certificate were not
forwarded by die Bureau "as soon as
practicable". Sections 22 and 23 of
the Road Traffic (Amendment) Act
1978 considered.
This was a case stated to the High
Court by a District Justice pursuant
to Section 2 of the Summary
Jurisdiction Act 1857 as extended by
Section
51
of
the
Courts
Supplemental Provisions Act 1961
on
the
application
of
the
Complainant (i.e. the Director of
Public Prosecutions) by way of
appeal. It concerned a charge against
the Defendant of having in his body
an excessive quantity of alcohol
contrary to Section 49 (2) (4) (a) of
the Road Traffic Act 1961 as
inserted by Section 10 of the Road
Traffic (Amendment) Act 1978.
The Defendant was arrested on 24
October 1979 under the Road Traffic
Acts 1961/1978 and he gave a
sample of his blood as prescribed and
on that date the sample was sent to
the Bureau of Road Safety. The
Bureau issued its certificate of
analysis dated 13 November 1979,
on which the seal of the Bureau was
affixed on 15 November 1979. The
prosecuting garda could not give
evidence as to when he received the
certificate from the Bureau except to
say that it was before 18 December
1979 and the Defendant gave no
evidence as to when he received the
copy certificate. The case was
dismissed in the District Court on the
basis that the analysis had not been
done "as soon as practicable" nor
had the certificate been forwarded to
the prosecuting garda "as soon as
practicable".
The question raised on the case
stated was as to whether the District
Justice was right in law in dismissing
the complainant. The statutory
provisions applicable to the question
of law submitted to the High Court
were as contained in Sections 22 and
23 respectively of the Road Traffic
(Amendment) Act 1989.
Section 22 (1) provided as follows:—
"As soon as practicable after it
has received a specimen forwarded
to it under Section 21, the Bureau
shall analyse the specimen and
determine the concentration of
alcohol or (as may be appropriate)
the presence of a drug or drugs in
the specimen".
Section 22 (3) provides —
"as soon as practicable after
compliance with sub-Section (1),
the Bureau shall forward to the
Garda Station from which the
specimen analysed was forwarded
a completed certificate in the form
prescribed for the purpose of this
section and shall forward a copy
of the completed certificate to die
person who is named on the
relevant form under Section 21 as
the person from whom the
specimen was taken or who
provided it".
Section 23 (2) provides —
"A certificate expressed to have
been issued under Section 22
shall, until the contrary is shown,
be sufficient evidence of the facts
certified to in it, without proof of
any signature on it or that the
signatory was the proper person to
sign it, and shall, until the
contrary is shown, be sufficient
evidence of compliance by the
Bureau with all the requirements
which the Bureau is obliged to
comply with by or under this Part
or under Part III of the Act of
1968".
The High Court (per Finaly P.)
indicated that the effect of these two
sections might be summarised as
indicating that the Bureau had two
obligations with regard to time; the
first was to analyse the specimen as
soon as practicable after it received it
and the second was to send to the
Garda Station and to the Defendant
the certificate as soon as practicable
after analysing the specimen.
The second feature was that there
was a rebuttable presumption arising
from the production of the certificate
itself that these two obligations
inter
alia
had been complied with by the
Bureau and that therefore the onus of
establishing that they had not was
upon the Defendant.
The Director of Public Prs-
secutions had a case stated to test
the propriety of the District Justice's
decision and in the High Court the
appropriate Section 22 of the Road
Traffic (Amendment) Act 1978 was
analysed, and Finlay P. considered
that this section imposed an
obligation on the Bureau to perform
the analysis of the sample as soon as
practicable after it has received it and
to sent the certificate and copy
certificate to the appropriate people
as soon as practicable after the
analysis. The next section of the Act
i.e. Section 23, creates a rebuttable
presumption on the production of the
certificate, that these two obligations
have been carried out by the Bureau.
The Court referred to
Hobbs v.
Hurley
(Unreported judgment of 10
June, 1980 of Costello J.) where the
words "as soon as practicable" were
examined, and where it was held (1)
that those words were not the same
as "as soon as possible' which would
impose a more severe obligation; and
(2) that those words had to be strictly
construed because they were in a
penal statute; and, (3) difficulties
attendant on effecting the obligation
expressed by those words had to be
considered in evidence and in
particular the nature and purpose of
the obligation had to be borne in
mind. With regard to the obligation
on the Bureau to send the certificate
to the prosecuting garda, the purpose
of this was to enable that garda to
decide under which sub-Section (if
any) the arrested person should be
prosecuted and the purpose behind
the obligation to send a copy
certificate to the Defendant was to
give the Defendant notice of the
evidence against him. Because of the
rebuttable presumption created by
Section 23 of the 1978 Act the
Defendant had to produce evidence
as to the difficulties and surrounding
circumstances affecting the Bureau in
performing its obligations and also as
to the effects caused by any delay,
before a court could properly reach
the conclusion that a specimen was
either not analysed or a certificate
was not sent "as soon as
practicable".
Held
(per Finlay P.) that in the
absence of evidence such as was
required as stated above the District
Justice was not entitled to reach a
conclusion as he apparently did that
either the specimen had not been
analysed "as soon as practicable" or
that the certificate had not been sent
"as soon as practicable" and in doing
so to the presumption contained in
Section 23 of the 1978 Act.
Director of Public Prosecutions
v.
Leonard Corrigan
— High Court
(per Finlay P.) — 21 July 1980 —
unreported.
cclxxiii