The Gazette 1974

then insisted upon living with her parents until 1957,

before going to the U.S.A. until 1959, when, at the

husband's request, she returned to Sandymount to live

with him for a few months. The husband's financial

position was still precarious, so that he had to subse-

quently go to the United States for a few months. Their

only child, a son, was then born, and, while the husband

accepted a post in Omagh, the wife remained in

Raheny. Eventually, after his mother's death, having

obtained some money, he bought a bungalow in

Dundrum. While retaining his position in Omagh,

he used to come there at week-ends. This arrangement

continued until the final separation in August 1965.

From the beginning the husband was irresponsible

about money matters, contracted large debts and

gambled heavily. The strong-willed wife, who wanted

financial security, was impatient of her husband's way

of life, which finally led to her nervous break down.

She insisted in August 1965 that the husband leave the

bungalow and he has not lived there since. From 1965

to 1968, the wife was mainly supported by her father,

and lived in a rented house in Foxrock. On 6 December

1968, the husband signed an agreement to pay £ 7 per

week for the child, but nothing was provided for the

wife. Payments were irregular.

In 1968 the wife went to England to get employment

and resided there. In October 1971, she brought pro-

ceedings for a full divorce in the High Court in Eng-

land, and obtained a decree nisi. No cause was shown by

the husband, and the order dissolving the marriage was

made absolute in January 1972. The petition contained

the averment that the wife had been ordinarily resident

in England for 3 years before presenting the petition.

The wife as plaintiff now seeks maintenance under the

Married Women (Maintenance in case of Desertion)

Act 1886. Husband's counsel has submitted that he did

not desert his wife, because she told him to leave, and

he asked for a dismiss. The domicile of a wife is that of

her husband until their marriage is legally terminated

by a

divorce a vinculo.

As the husband was at all

times domiciled in Ireland, the Irish Courts do not

recognise the divorce in England, as having the effect of

dissolving the marriage, because a divorce granted to a

wife resident in England against a husband domiciled in

Ireland will not have that effect in Ireland, as that

jurisdiction did not exist in England before 1922. Conse-

quently the husband and wife are still legally married

under Irish Law.

There can be no estoppel between husband and wife

as to the existence of a valid marriage between them.

The wife's application to the English High Court for

divorce does not prevent her claiming to be the hus-

band's wife in Ireland.

It is claimed that the wife has been deserted by her

husband under the Act of 1886. It has been held that a

married woman who leaves her husband, because he

has been guilty of cruelty to her, has been constructively

deserted, and may claim a weekly payment. In order to

constitute constructive desertion, an intention to disrupt

the marriage or to bring cohabitation to an end must

be proved. But no such intention is here manifested by

the husband; folly about money by itself does not justify

the wife from leaving her husband. The separation was

by consent, and did not amount to constructive deser-

tion. The wife's application for maintenance is dis-

missed but there will be no order as to costs.

[Counihan v. Counihan; Kenny J.; unreported; 27

July 1973.]

Certificate issued to be deemed conclusive evidence that

the concentration of alcohol in the blood of a

person from whom specimen is taken is deemed to

be the specified concentration of alcohol—S.44

(2) (a) of the Road Traffic Act 1968 providing for

this is unconstitutional.

On 23 September 1971 plaintiff convicted of attempt-

ing to drive while excessive concentration of alcohol in

his blood, under S.49 of Road Traffic Act 1961, as

amended by S.29 of Road Traffic Act 1968. In the High

Court, before O'Keeffe P., plaintiff had issued pro-

ceedings seeking a declaration that S.44 (2) (a) of the

Act of 1968 was unconstitutional inasmuch as it pro-

posed to prove that the certificate issued by the Bureau

be conclusive evidence that at the time it was taken

or provided, the concentration of alcohol in the blood

of the person from whom the specimen was taken, was

the specified concentration of alcohol. The President re-

fused to grant this declaration.

Plaintiff alleges that the procedure by which the

Certificate is obtained is contrary to the following

articles of the Constitution :

Article 34 (1)—Justice to be administered by Judges

established by the Constitution.

Article 38 ( 1 )—No person shall be tried on a criminal

trial save in due course of law.

Article 37—Limited functions and powers of a judicial

nature in criminal matters can only be exer-

cised by Judges under the Constitution.

In order to be convicted, the amount of alcohol

present in a person's body, within 3 hours of driving»

must exceed 125 milligrammes of alcohol per 100 milH'

litres of blood. If a District Justice is not satisfied beyond

reasonable doubt of this fact, he must acquit; the Jus-

tice must arrive at a conclusion upon the matter based

on his own judgment of the evidence. As the certi-

ficate is deemed to be conclusive evidence of the

specified concentration of alcohol at the time, it pre-

cludes the Justice from forming any judgment on this

matter. In effect an accused person is not free to con-

test the determination of alcohol set out in the certi-

ficate. Although S.45 of the Act of 1968 provides for

a second analysis of the blood in the presence of the

accused if he requested it, nevertheless the evidence

provided by the Certificate from the Bureau is ulti-

mately incontestable, therefore the Justice cannot exer-

cise his judgment upon the matter.

The administration of justice in criminal matters is

confined exclusively by the Constitution to the Courts

and Judges set up by the Constitution. Consequently

it is for such Judges alone to determine the essential

ingredients of an offence charged against an accused.

Insofar as statutory provision purports to remove such

determination from the Judges established by the Con-

stitution, it is an invalid infringement of the judicial

power. Here the offending element is the evidential

conclusiveness of the certificate. If the word "con-

clusive

" had been omitted, the certificate would have

been valid.

There remains the declaration that the whole of S.44

(2) (a) of the 1968 is unconstitutional, now that the

word "conclusive" evidence is omitted. The Court was

asked to sever the word "conclusive" to give the para-

graph constitutional validity. Article 15(4) of the Con-

stitution declares that any law repugnant to the Con-

stitution invalid only to the extent of such repugnancy-

This is essentially a matter of interpreting the intention

of the Legislature, particularly in view of Article 15(2)