The Gazette 1976

GAZETTE

UNE

1976

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

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-

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