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GAZETTE
DE
C
EM
BER 1981
statements, did so on a wrong
basis and the statements should
not have been admitted.
(3) The Jury, either by a specific
question, or by an appropriate
direction, ought to have been
asked to decide, as a question of
fact material to the defence,
whether the Appellant's evidence
that he had been held against his
wishes, as he described, was, or
was not true.
(4) (per Kenny J.), assuming that the
Supreme Court had jurisdiction
to hear an appeal directly from
the Central Criminal Court, he
was in agreement with the
conclusions enunciated above;
but that the assumption that such
an appeal lay directly was one
which he was not then prepared
to assent to, or dissent from,
without having full argument on
the point.
DPP v. Christopher Anthony Lynch
— Supreme Court (per O'Higgins,
C.J., and Walsh and Kenny J.J.) —
19 February, 1981 — unreported.
ROAD TRAFFIC ACT
Regulations made under an Act
which has been passed but which has
not yet come into operation are not
invalid merely because the Act is not
yet in operation provided the making
of the regulations was "necessary or
expedient" to give the Act force and
effect immediately upon its coming
into operation — Section 10(1) of
Interpretation Act 1937 considered.
A motorist was charged under
Section 49(2) of the Road Traffic
Act 1961, as inserted by Section 10
of the Road Traffic (Amendment)
Act 1978, with driving while having
a concentration of alcohol in his
blood which was in excess of the
permitted level. In order to sustain a
conviction
a
certain
defined
procedure had to be followed as to
the taking of a sample of blood or
urine and its subsequent examination
and this procedure was laid down in
the regulations contained in S.I. No.
193 of 1978. These regulations were
made on 11 July 1978 under the
Road Traffic (Amendment) Act 1978
which Act was passed on 5 July
1978 but which Act did not come
into operation until 20 July of that
year.
The motorist was-convicted in the
District Court and the matter came
before the High and subsequently the
Supreme
Court
by
way
of
Conditional Order of Certiorari
seeking to quash the conviction. It
was contended by the motorist that
the conviction was bad because the
regulations made by S.I. 193 of 1978
were invalid since the Act under
which they were made had not then
come into force. Against this
argument, Section 10(1) of the
Interpretation Act 1937 was relied
on, which Section (Section 10(l)(b))
provided that, "If (an) Act confers a
power to make or do, for the purpose
of such Act . . . . to have full force
and effect immediately upon its
coming into operation, such power
may, subject to any restrictions
imposed by any such Act, be
exercised at any time after the
passing of such Act".
Held
(per Henchy J.) that the
regulations made under S.I. 193 of
1978 were valid, as the parent Act
had been passed; and that it was a
matter of judicial notice that the
operation of breathalyser tests, and
tests for the analysis of the
concentration of alcohol in the blood
or urine of a motorist, had broken
down by 1978; and that statistics as
to the part played by excessive
drinking on the part of drivers in road
accidents were so notorious that the
1978 Act had become a matter of
urgent legislative priority; and that
therefore the making of the
regulations by the Minister in
advance of the coming into operation
of the Act was "necessary or
expedient" and that therefore the
regulations were valid by reason of
Section 10(1) of the Interpretation
Act 1937.
The State (McColgan) v. Director of
Public Prosecutions and District
Justice Clifford.
Supreme Court, (per
Henchy J. with O'Higgins, C.J., and
Griffin J.) 25 March 1980. — un-
reported.
LICENSING
A publican's licence cannot be
regarded as property capable of
separation
from
the
licensed
premises.
The bankrupt was the owner of a
public house and the relevant
publican's licence attaching to the
premises.
The
bankrupt
was
adjudicated
bankrupt
on
6
December, 1976.
During 1974 and 1975, four
mortgages were created over the
property, and, after the premises
were sold in the course of the
bankruptcy, the Official Assignee
contended that the mortgages were
ineffective in attempting to capture
the licence as part of the security,
principally because none of the
documents creating the mortgages
referred specifically to the licence.
Held
(per Hamilton J.), that the
licence could not be regarded as
property capable of separation from
the licensed premises, and, therefore,
the licence was subject to the same
changes and incumbrances as the
property, and was incapable of
passing to the Official Assignee in
priority to the charges registered
against the property to which it was
attached.
In re BJ.S-B., a bankrupt.
— High
Court, (per Hamilton J.) — 15
August 1979 — unreported.
LAW OF PROPERTY
Failure of Purchaser or Mortgagee to
make
necessary
enquiries
or
requisitions
on
purchase
or
mortgage. Mortgage deemed to have
constructive notice of the third party
claim of the wife of the Mortgagor
which defeated the rights of the
Mortgagor.
A married couple, Mr. and Mrs. H.
(the first and second named
Defendants) in 1964 purchased a
house with monies provided by Mrs.
H. from the proceeds of the sale of
a previous matrimonial home which
had been bought in Mrs. H's name
by Mrs. H's father and from a
mortgage from the F.N.B.S. (the
third named Defendants). The title to
the house was vested solely in Mr.
H's name although Mrs. H. vaguely
understood that it was to have been
put in her name. Mr. H. got a further
mortgage from the F.N.B.S. in 1969
and the mortgage of 1964 was
redeemed. Again Mrs. H. was not
mentioned. Mr. H. then incurred a
substantial overdraft over a period of
years and in July 1973 agreed to give
the Plaintiff Bank a second mortgage
over "his" house having just
previously in May 1973 asked the
Plaintiff to send all bank letters to
him to his business address. Mr. H's
Solicitors failed to deal with the
granting of the second mortgage to
the Plaintiffs informing the Plaintiffs
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