The Gazette 1981

DECEMBE R

1981

GAZETTE

obligation on the Bureau to perform the analysis of the sample as soon as practicable after it has received it and to sent the certificate and copy certificate to the appropriate people as soon as practicable after the analysis. The next section of the Act i.e. Section 23, creates a rebuttable presumption on the production of the certificate, that these two obligations have been carried out by the Bureau. The Court referred to Hobbs v. Hurley (Unreported judgment of 10 June, 1980 of Costello J.) where the words "as soon as practicable" were examined, and where it was held (1) that those words were not the same as "as soon as possible' which would impose a more severe obligation; and (2) that those words had to be strictly construed because they were in a penal statute; and, (3) difficulties attendant on effecting the obligation expressed by those words had to be considered in evidence and in particular the nature and purpose of the obligation had to be borne in mind. With regard to the obligation on the Bureau to send the certificate to the prosecuting garda, the purpose of this was to enable that garda to decide under which sub-Section (if any) the arrested person should be prosecuted and the purpose behind the obligation to send a copy certificate to the Defendant was to give the Defendant notice of the evidence against him. Because of the rebuttable presumption created by Section 23 of the 1978 Act the Defendant had to produce evidence as to the difficulties and surrounding circumstances affecting the Bureau in performing its obligations and also as to the effects caused by any delay, before a court could properly reach the conclusion that a specimen was either not analysed or a certificate was not sent "as soon as practicable". Held (per Finlay P.) that in the absence of evidence such as was required as stated above the District Justice was not entitled to reach a conclusion as he apparently did that either the specimen had not been analysed "as soon as practicable" or that the certificate had not been sent "as soon as practicable" and in doing so to the presumption contained in Section 23 of the 1978 Act. Director of Public Prosecutions v. Leonard Corrigan — High Court (per Finlay P.) — 21 July 1980 — unreported.

ROAD TRAFFIC ACTS In a prosecution for driving while having excess alcohol In die body, where a certificate of analysis is produced by die Bureau of Road Safety, the onus b on the Defendant to show that the analysis was not carried out "as soon as practicable" and that the certificate of analysis and copy certificate were not forwarded by die Bureau "as soon as practicable". Sections 22 and 23 of the Road Traffic (Amendment) Act 1978 considered. This was a case stated to the High Court by a District Justice pursuant to Section 2 of the Summary Jurisdiction Act 1857 as extended by Section 51 of the Courts Supplemental Provisions Act 1961 on the application of the Complainant (i.e. the Director of Public Prosecutions) by way of appeal. It concerned a charge against the Defendant of having in his body an excessive quantity of alcohol contrary to Section 49 (2) (4) (a) of the Road Traffic Act 1961 as inserted by Section 10 of the Road Traffic (Amendment) Act 1978. The Defendant was arrested on 24 October 1979 under the Road Traffic Acts 1961/1978 and he gave a sample of his blood as prescribed and on that date the sample was sent to the Bureau of Road Safety. The Bureau issued its certificate of analysis dated 13 November 1979, on which the seal of the Bureau was affixed on 15 November 1979. The prosecuting garda could not give evidence as to when he received the certificate from the Bureau except to say that it was before 18 December 1979 and the Defendant gave no evidence as to when he received the copy certificate. The case was dismissed in the District Court on the basis that the analysis had not been done "as soon as practicable" nor had the certificate been forwarded to the prosecuting garda "as soon as practicable". The question raised on the case stated was as to whether the District Justice was right in law in dismissing the complainant. The statutory provisions applicable to the question of law submitted to the High Court were as contained in Sections 22 and 23 respectively of the Road Traffic (Amendment) Act 1989. Section 22 (1) provided as follows:— "As soon as practicable after it

has received a specimen forwarded to it under Section 21, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen". Section 22 (3) provides — "as soon as practicable after compliance with sub-Section (1), the Bureau shall forward to the Garda Station from which the specimen analysed was forwarded a completed certificate in the form prescribed for the purpose of this section and shall forward a copy of the completed certificate to die person who is named on the relevant form under Section 21 as the person from whom the specimen was taken or who provided it". Section 23 (2) provides — "A certificate expressed to have been issued under Section 22 shall, until the contrary is shown, be sufficient evidence of the facts certified to in it, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with all the requirements which the Bureau is obliged to comply with by or under this Part or under Part III of the Act of 1968". The High Court (per Finaly P.) indicated that the effect of these two sections might be summarised as indicating that the Bureau had two obligations with regard to time; the first was to analyse the specimen as soon as practicable after it received it and the second was to send to the Garda Station and to the Defendant the certificate as soon as practicable after analysing the specimen. The second feature was that there was a rebuttable presumption arising from the production of the certificate itself that these two obligations inter alia had been complied with by the Bureau and that therefore the onus of establishing that they had not was upon the Defendant. The Director of Public Prs- secutions had a case stated to test the propriety of the District Justice's decision and in the High Court the appropriate Section 22 of the Road Traffic (Amendment) Act 1978 was analysed, and Finlay P. considered that this section imposed an

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