The Gazette 1983

JULY/AUGUST 1983

GAZETTE

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

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

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.

Edited by Gary Byrne

Copies of judgments in the above cases are available to members on request from the Society's Library. __