The Gazette 1985

GAZETTE

JANUARY/FEBRUARY 1985

alter twenty minutes. He was then asked

to permit the doctor to take a sample of

blood. He refused. He was later charged

with an offence under Section 13(3) of the

Road Traffic (Amendment) Act 1978.

The charge sheet however alleged an

offence of failing to permit the designated

medical practitioner to take a sample of

urine

or at the option of the Defendant to

provide a specimen of

blood.

The case

stated raised four questions:

1. Was the requirement made of the

Defendant by Sergeant

Patrick

Sexton made in accordance with the

provisions of Section 13(1) of the

Road Traffic (Amendment) Act

1978 in all the c i r c ums t a n c es

deposed sufficiently in accordance

with the provisions of that Section to

r e q u i r e

c o m p l i a n c e

t h e

Defendant therewith?

2. If the said requirement was so

sufficient does the failure or refusal

of the Defendant in the circum-

stances constitute an offence of

which the Defendant might be

convicted in view of the charge as

framed on Ballyfermot Charge Sheet

291/82, a copy of which is annexed

to the case and in respect of which

the charge as framed in accordance

with the provisions of Section 13 of

the Road Traffic (Amendment) Act

1978.

3. Should I convict the Defendant of an

offence contrary to Section 13(3) of

the said Act of 1978.

4. If so ought I to amend the Charge

Sheet prior to so doing?

On the case stated it was held that on

the evidence the Defendant was not

misled in the station as to his options.

Secondly, the charge sheet should he

amended by the District Justice by

substituting the wo rd " u r i n e" for

" b l o o d" and vice-versa and that the

Defendant should be convicted of the

offence.

Garda Christopher Moloney

-v-

John

Stanley - High Court (per Lynch J.). 2

April, 1984 - unreported.

Michael Staines

REVENUE

Circuit Court determination of Tax Appeal

— requirement to express dissatisfaction

immediately — Questions of Law arose —

Prosecutors dissatisfaction declared one

day later — whether declared "immedi-

ately" after determination — whether

provision for immediate expression of

dissatisfaction directory or mandatory —

Circuit Court asked to state case —

whether Circuit Court bound to do so. —

Income Tax Act 1967 Section 428 and 430.

The Prosecutors (Multiprint) appealed

against the Ap p e al C omm i s s i o n e r s'

determination of their Corporation Tax

on 25 July, 1983. The subject matter of

their appeal being their claim for entitle-

ment to export sales relief.

Questions of law arose at the hearing of

the Appeal before the President of the

Circuit Court. At the conclusion of the

hearing when he found in favour of the

Revenue the representative of the

Prosecutor did not express dissatisfaction

with the d e t e r m i n a t i on as b e i ng

erroneous on a point of law.

On the same date upon return to his

office the Prosecutor's representative

realised his omission. The following

morning there was delivered on behalf of

the Prosecutor a letter addressed to the

President of the Circuit Court expressing

dissatisfaction with the appeal as being

erroneous in point of law and that they

required that a case be stated for the

opinion of the High Court. The County

Registrar replied, on behalf of the

President of the Circuit Court, stating

that the president had no discretion in the

matter.

A conditional Order of

Mandamus

was

obtained. The Revenue argued against

the making absolute of the Order.

The following issues of law arose.

(a) Whether the Prosecutors complied

with the provisions of Section 428( 1)

of the Income Tax Act, 1967

incorporated to apply to these

proceedings by Section 430 of the

same Act wherein it is provided:

"Immediately after the determina-

tion of an appeal by the special

Commissioners the Appellant or the

Inspector, if dissatisfied with the

determination as being erroneous in

point of law, may declare his

dissatisfaction to the C omm i s-

sioners who heard the appeal."

(b) If there was non-compliance with

that sub-section as applied is it to be

construed as mandatory and default

to be fatal to the bringing of an

appeal by case stated or is it

directory only?

the Prosecutors with the provisions

of Section 428, sub-section 2 of the

same Act as applied which provides:

" T he Appellant or Inspector as the

case may be having declared his

dissatisfaction may within twenty-

one days after the determination by

notice in writing addressed to the

Commissioners require the Com-

missioners to state and sign a case

for the opinion of The High Court

thereon."

(d) Whether there were questions of law

appropriate to be sent forward to

The High Court for the expression of

its opinion.

The main argument made by Counsel

on behalf of the Revenue Commissioners

against the making absolute of the

Conditional Order was directed to the

question arising at (a) and (b) above.

The High Court H E LD that it

approved of the principles upon which

the decision of The Court of Appeal is

founded in

Regina -v- The Inspector of

Taxes, fix-Parte Clarke.

[1974] 1 Q.B.,

page 220 which construed the word

"immediately" as meaning with all

reasonable speed considering the circum-

stances of the case and that the require-

ment for the expression of dissatisfaction

immediately after the determination of

the case was directory and not mandatory

and accordingly, if the expression had not

been given immediately the right of

appeal would not be lost.

The Court further stated that the

distinction between the Income Tax Acts

apparently applicable in England at the

time of the decision and the provision of

the Income Tax Act 1967 do not affect by

way of distinguishing those principles.

As to issue (c) the fact that having

regard to the terms of the letter delivered

to the County Registrar and the reply

received, he held that this should be

deemed to be compliance with the

requirements of requesting from the

County Registrar the preparation by the

Judge of the case stated.

As to item (d) he held that points of law

do arise.

HE LD: As a matter of law the Prose-

cutor is entitled to have a case stated for

the d e t e r m i n a t i on of these issues

submitted to The High Court.

The State at the Prosecution of Multiprint

Label Systems Limited -v- The Honourable

Mr. Justice Thomas Nevlon [1984] ILRM

545.

John O'Connor

COMPULSORY ACQUISITION

Claim for compensation arising out of

Compulsory Purchase Order made by

Dublin County Council — Basis of

valuation — land designated in the County

Dublin Development Plan, 1972 —

Development potential considerably

restricted by zoning provision — Value of

land dependent on validity of such restric-

tion and whether the County Council is

entitled to refuse the claimant a connection

for sewerage and planning permission.

Dublin County Council made a

Compulsory Purchase (Dodder Valley/

Knocklyon/Ballyroan) Order in 1973 for

road widening. A claim was made for

compensation by J o hn Meenaghan in

respect of acquisition of parts of his lands

at Firhouse Road on foot of the C.P.O.

Arbitration proceedings were heard on 3

November, 1982. The Arbitrator stated

his award in the form of a case stated to

the High Court, on the basis that the

applicant is entitled to receive, in any

event, £400,000 for the acquisition of his

lands, and depending on the answers to

the questions of law posed by the case