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Irish Life, by losing the right to possession, cannot by
assigning to the defendants, give them a right of pos-
session. The defendants, by taking a transfer of the
freehold, cannot give themselves any better right to
possession than they themselves had, before the transfer
was effected. The decision of O'Keeffe P. granting a
perpetual injunction to the plaintiff restraining the
defendants from taking possession of the specified plot
was accordingly affirmed, and the appeal was dis-
missed.
Henchy J., dissenting, would have allowed the appeal
and would have held :
(1) By never paying rent, the plaintiff is not entitled
to the leasehold interest.
(2) The plaintiff is not now entitled to the fee simple
in the plot; by making the lease of November 1947
for 999 years, the owners of the fee simple put the
plot out of their reach for the duration of the lease,
and consequently the earliest date at which the
Statute of Limitations would have begun to run
against them would be the 5th November, 1970.
(3) The defendants are ultimately entitled to the fee
simple in the plot subject to the right of a plain-
tiff, who is not a squatter, to retain possession of
it until the expiration of the lease, i.e. 999 years
from 1947. The principle that a tenant cannot
derogate from his grant does not apply to a squat-
ter.
(4) The defendants have become entitled, since the
merger of the lease in the freehold in 1970 to a
right to recover possession of the plot.
[Perry v. Woodfarm Homes Ltd.; Supreme Court
(Walsh and Griffin JJ., Henchy J. dissenting); Separate
judgments by each Judge; unreported; 1 August 1974.]
A conviction for driving a motor car while under the
influence of intoxicating liquor or of a drug
constitutes a single offence.
In February, 1973, the accused was charged under
S. 49 of the Road Traffic Act, 1961, with driving a
motor car while under the influence of intoxicating
liquor or of a drug to such an extent as to be incapable
of having proper control of the vehicle. The District
Justice convicted the defendant, and fined him £10 or
one months imprisonment. In July 1973, Finlay J.
granted a conditional order of certiorari to quash the
conviction, on the ground that the order for conviction
was bad for duplicity. On 1 October 1973 Gannon J.
made absolute the conditional order and disallowed
the cause shown, on the same ground. The Attorney-
General appealed on the ground that the complaint
against the accused charged one offence only and con-
sequently there was a valid order of conviction. The
net question is whether to drive under the effect of
intoxicating liquor is one offence, and whether to drive
under the influence of drink is a separate offence.
In
Thomson
v.
Knights
(1947) K.B. 336, a
Queen's Bench Divisional Court held that a charge
under a similarly worded section in the English Road
Traffic Act consisted only of one offence. The accused
contends that, in order to secure a prosecution for an
offence under the Irish Section, the prosecution would
have to prove that the incapacity resulted either from
intoxicating liquor or from a drug. It is to be noted
that tests like blood tests were not envisaged in 1961
and consequently prosecution under the section were
foredoomed to failure if the incapacity resulted from
either
intoxicating drink or a drug. As S. 50 of the 1961
Act contemplates only one offence—unfit to drive—it
would be unreasonable to hold that two separate
offences are created by S. 49. Those sections effectively
show that the words "intoxicating liquor or a drug"
was to indicate the range of causation for the incrimin-
ating capacity, not to effect a subdivision into two
distinct offences. The lack of particularity in referring
vaguely to "intoxicating liquor or a drug" is in accor-
dance with the legislative intent. Although it would be
desirable for a Justice in cases under Sections 49, 50
and 51. to identify whether an accused was convicted
or acquitted for driving as a result of intoxicating
liquor
or
a drug, it is not essential, owing to the
statutory definition, to do so. The majority of the Court
(Henchy and Griffin JJ.) accordingly held that the
conviction in this case was for a single offence, not
invalid for uncertainty or duplicity. Accordingly they
allowed the appeal and the cause shown, and discharged
the conditional order of Certiorari.
Walsh J., dissenting but affirming Finlay and Gan-
non JJ., would have dismissed the appeal. It is clear
that the definition of "unfit to drive" is a mere term of
art limited to unfitness due to either the influtnee of
intoxicating liquor or of a drug. It is to be noted that
in Section 49 the Oireachtas did not provide that a
person shall not drive, or attempt to drive, a mechani-
cally propelled vehicle while he is unfit to drive, and
then define "unfit to drive". One should note that the
Section 15 (1) of the English Road Traffic Act 1930,
unlike the Irish Act of 1935, did not use the words
"intoxicated" or "intoxicating". In the
People
v.
Blogh
(1958) I.R. 91, the Court, as did the English Courts,
held that a person who drives a vehicle in a public
place "at a speed or in a manner" which was dan-
gerous to the public, created two offences, distinguish-
ing between "the dangerous manner" and "the dan-
gerous speed"; the wording was not changed in the
1961 Act, but the single offence of dangerous driving
was specifically created by Section 51 of the 1968 Act.
The words "under the influence of intoxicating liquor
or a drug" are not merely adjectival. A person cannot
be incapable by reason of the fact that the consumption
of intoxicating liquor was self-induced. But drugs are
of two types—(a) those that are medical, and (b) the
result of taking drugs would be the result of addiction
to drugs. In the case of medicinal drugs, the taking
of drugs is not necessarily self-induced. It is an excep-
tionally serious thing for a person to have been con-
victed in terms which leave it uncertain as to whether
this incapacity was due to drink or drugs. It is the duty
of the Justice to apply his mind not merely to the
incapacity, but basically to the cause of the incapacity.
If the Justice is not sure under which capacity resulting
from the combined effects of taking drink and drugs
he is to convict, or he can convict in respect of the one
of them as he would regard as being the immediate
cause. If, as in this case, the conviction is bad on the
face of it because of duplicity, the proper course is to
send the case back to the District Court to have a
correct order made. Accordingly, the conviction should
be quashed, but the case should be returned to the
Justice to make a proper order.
[The State (
McGr oddy
) v.
District Justice
Carf,
Supreme Court (Walsh, Henchy, and Griffin JJ.)>
Separate Judgments by each Judge; unreported; 1
August, 1974.]
268