330 / 346
GAZETTE
JULY/AUGUST 1983
ROAD TRAFFIC ACT
Defendant convicted of driving with an
excess alcohol blood appealed to Circuit
Court where he raised a multitude of
points which resulted in a consultative
case stated under s.16 of the Courts of
Justice Act 1947.
The first issue related to the
prescribed form to be filled by the
medical practitioner under Section 21
(1) of the Road Traffic Amendment Act
1978. Though the doctor signed the
form in the appropriate place he did not
put his name in the body of the
statement where it was alleged a blank
line existed for this purpose. Also an
alternative section of the form relating
to a urine specimen was not entirely
deleted.
Held that the entry of the name in the
blank section was optional and its
absence did not detract from the syntax,
clarity of meaning and verification of
conduct for which the form was
designed. The failure to delete the
entire of the alternate section was
obviously a slip but it did not affect the
form as it stood making abundantly
clear that it was a specimen of blood
rather than of urine that was taken by
the doctor.
In the second issue it was agrued that
if the prosecution omitted to produce a
copy of Iris Oifigiuil or a copy of the re-
gulations under the 1978 Act that it had
failed in its proof. It was argued that s.4
(1) of the Documentary Evidence Act
1925 required this. Precedent for this
contention was to be found in
The
People (A.G.) v. Kennedy
[1946] I.R.
517.
Held that the 1925 Act enables
prima
facie
evidence of rules, orders,
regulations, or bye-laws to be given with
almost the same facility as if they were
statutes. The production of the relevant
copy in court merely enables the court to
treat it as
prima facie
evidence of the
document though it should be pointed
out that in criminal cases where a piece
of delegated legislation actually creates
the offence involved then the
production of a copy of this legislation
will be necessary. In the case in point
here the offence was created under
statute. Since the provisions of the 1925
Act are no more than enabling they do
not alter the powers of the court to treat
matters as worthy of judicial notice.
Thus where a statutory instrument has
become well known and familiar the
court is entitled to accord it judicial
notice and precedent for this contention
is to be found in
The State (Taylor) v.
Circuit Judge of Wicklow and Others
[1951] I.R. 311. In the latter case a de-
fendant had argued that it was
incumbent on the prosecution to prove
that the relevant Minister had made the
requisite order which brought the
statute creating the offence into force.
The Circuit Judge held that he was
entitled to take judicial notice of the fact
that the Minister had made the order. In
subsequent
certiorari
and
habeus corpus
proceedings Davitt J. held that the
Circuit Judge was correct in that
through his experience in administering
justice he had become perfectly well
aware that the order in question had
been made. In the case in point here the
various regulations were also well
known to be in force and not to take
judicial notice of this would be a case of
self induced judicial blindness which
would bring the administration of the
law into disrepute.
Issue number three related to the
presence of an unspecified white
substance in the containers for the
specimen. It was agreed that when the
containers were received at the garda
station initially that they held this white
substance and that this substance was
sealed into the containers along with the
blood sample when the sample was sent
to the Bureau for analysis. The defence
argued that this substance could have
distorted the analysis and the suggestion
was made that the prosecution would
need to rebut this possibility.
Held that the prosecutions' burden is
discharged when they adduce sufficient
evidence to raise a
prima facie
case
against the accused. This they had done.
Under the 1978 Act the Bureau's
certificate is declared to be sufficient
evidence of the facts certified in it until
the contrary is shown and one of these
facts is that the specimen of blood had
the certified alcohol concentration as
appears in the certificate. Therefore the
burden had shifted to the defence. If it
was required to show that the analysis
was false it was up to the defence to
adduce evidence showing the possibility
of fraud or mistake. A mere suggestion
of this is not evidence and since the
defence did not adduce any evidence
that the white substance might have
falsified the analysis then the
prosecutions evidence must stand.
The fourth issue was based on the
contention that there was a patent delay
by the Bureau in analysing the specimen
and that therefore the Bureau had not
complied with the "as soon as
practicable" requirement under s.22(l)
of the 1978 Act. The specimen was sent
to the Bureau on 4 November 1978, the
signature of the analyst on the certificate
was made on 22 November 1978, the
Bureau's seal was affixed to the
certificate on 23 November, 1978 and
the certificate was received at the garda
station on 5 December 1978.
Held that the unexplained failure of
the Bureau to carry out the analysis
between a few days after the 4
November and 22 November did not
amount to a failure to do the analysis as
soon as practicable. The obligation on
xxvii
the Bureau is elaborated in
Hobbs v.
Hurley
(10 June, 1980) and this is
amplified in
D.P.P. v. Corrigan
(2 July,
1980). Two topics need to be proved in
this regard; on the one hand the
practical difficulties and surrounding
circumstances attendant on the receipt
of the sample and analysis of it by the
Bureau and on the other hand the effect
and consequnces of any delay. The
burden of establishing the facts in this
regard rests on the defendant because of
the presumptions raised by the relevant
sections of the 1978 Act. In the instant
case the defendant called no evidence
regarding the lapse of time.
The fifth and last issue rested on the
contention that one of the signatures on
the certificate was illegible and the
capacity of the persons who attested the
affixing of the seal was not precisely
stated.
Held that legibility is not a hallmark of
an effective signature and if its authen-
ticity is not in question and if it is not
shown to be other than the accustomed
mode of signature of the alleged
signatory then it will not be rejected.
Again the burden of proof is expressly
placed on the defendant by the statute if
he wishes to challenge the signature on it
or that the signatory was not the proper
person to sign it he must show that the
signatory had not any of the alternate
capacities adverted to in the certificate.
In this case there had been no such
evidence adduced. The signatory does
not have to precisely specify which of
the alternate capacities under which he
is signing.
Director of Public Prosecutions v.
Collins,
Supreme Court (per Henchy J.
nem. diss.) — [1981] 1LRM 447.
Brendan Garvan
Edited by Gary Byrne
Copies of judgments in the above cases are
available to members on request from the
Society's Library.
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