The Gazette 1984

JULY / AUGUST 1984

GAZETTE

HELD: making ab s o l u te the Conditional Order that the Gardai and the State Solicitor were aware that the copy Certificate required by Statute to be forwarded to the prosecutor had in fact been forwarded but had not in fact reached him and in that knowledge the proceedings were commenced for the conviction of an offence under Section 49 of the Road Traffic Act, 1961, as amended in respect of which the contents of the Certificate was an essential proof. The Gardai had retained the copy certificate intended for the prosecutor up to the return date of the summons which had been served during the period of the adjournment despite issue having been taken upon its absence. The following passage from the judgment of the President of the High Court in The State (Walshe) -v- Murphy [1981] I.R. 275 was cited. ". . . . I am satisfied that there is an obligation on the prosecuting authorities in a charge under Section 49 of the Road Traffic Act, 1961, where they become specifically aware that the person charged has not received a copy of the Certificate and requires one, to supply him with one in such good time as to provide him with a realistic opportunity to have the specimen which he has retained analysed and to contest the validity or correctness of the Certificate which was issued." The State (Patrick O'Regan) -v- District Justice Plunkett - High Court (per Gannon J. 29 July, 1983 - unreported. Daniel F. Murphy CERTIORARI Where a Garda prosecutes in his own name, the D.P.P. does not have authority either to take over, or to withdraw such prosecution without the Garda's consent. Subsequent to an incident which occurred on 20 Setpember 1981, Garda O'Brien filed a report at the Superinten- dent's office in Cork, requesting that a summons be issued against Michael Collins for alleged disorderly conduct. The summons was issued, and eventually came on for hearing on 4 June 1982. In the meantime, Collins had, through his solicitor, made a complaint against Garda O'Brien. This complaint was duly investigated, and Collins' Solicitors received notification from the Director of Public Prosecutions that the summons against his client was to be withdrawn, and that Garda O'Brien was himself to be summoned. This further summons was returnable for 4 June 1982, and on that date, both summonses were adjourned for hearing to 17 June 1982. It would appear that the D.P.P. did not indicate to the Court on 2 June that he would be applying to have the summons against Collins withdrawn. On 17 June, the State

become aware that a person charged under Section 49 of R.T.A. 61 has not received one. The prosecutor was convicted on 25 January, 1983, in the District Court of an offence contrary to Section 49 (2) of the Road Traffic Act, 1961, as amended by Section 10 of the Road Traffic (Amendment) Act, 1978. He was arrested on 28 August, 1982, under Section 49(6) of the Road Traffic Act, 1961, and gave, voluntarily, a specimen of his blood and received a corresponding specimen. He was informed of the purpose of the specimen and advised that a copy of a certificate of the analysis would be sent to him. He gave an address in Cork to which he wished the Cert to be sent at which he was known but, he permanently resided at his parents address in Dublin which he also gave to the Gardai. The copy Certificate was sent by the Bureau to his Cork address by registered post prior to 4 September, 1982, upon which date it was returned with a note on the envelope "no such person at this address". On 9 September, the Garda Station at Rathfarnham was notified of the return to them of the registered envelope pursuant to Section 22 (3) of the 1978 Act. Between that date and 25 January, 1983, the Certificate and the copy thereof remained in the possession of the Gardai and no steps were taken to furnish a copy to the Prosecutor. Sometime in October, 1982, a summons was issued by the Gardai at Rathfarnham for an offence to which the Certificate related and service of the summons was effected towards the end of October to the Dublin address. The case came before the District Court on 21 December, 1982, when the prosecuting Guard informed the district Court that the copy Certificate of the Medical Bureau had not been received by the prosecutor whereupon an Application for an adjournment at the request of the prosecuting Guard was granted. Counsel applied to have the charge dismissed for want of delivery of the copy Certificate but the adjournment was granted. On 25 January, 1983, the. prosecuting Guard handed a copy of the Certificate of the Medical Bureau to the Prosecutor prior to the commencement of the Hearing. At this Hearing Counsel again applied for a dismiss of the charge on the grounds that a copy of the Certificate had not been forwarded by the Medical Bureau to the prosecutor "as soon as practicable" after making the analysis of the blood s p e c i men a nd d e t e r m i ng t he concentration of alcohol in it. The District Justice ruled against the submission having considered all the evidence and convicted the prosecutor. On 14 March, 1983, the prosecutor obtained in the High Court a Conditional Order of Certiorari directed to the District Justice to send forward the Order of 25 January 1983 to be quashed unless cause be shown to the contrary.

considered and granted in Mareva Compania S.A. -v- International Bulk Carriers S.A. [1980] 1 All E.R. 213). Prior to that case the principle generally applicable was that "you cannot get an injunction to restrain a man who is alleged to be a debtor from parting with his property" — Lister -v- Stubbs [1890] 45 Ch.D. The jurisdiction to grant Mareva injunctions in England was based on provisions similar to those contained in Section 28(8) of the Judicature (Ireland) Act, 1877, the relevant part of which states, "an injunction may be granted by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order shall be made". There is jurisdiction to grant such an injunction and the cases in which it may be granted are not confined to cases in which a defendant is resident outside the State. There must be a real risk of the removal or disposal of the defendant's assets, there must be a danger of default by the defendant, the plaintiff must show that he has a good arguable case, and, weighing the considerations for and against the grant of an injunction, the balance of convenience must be in favour of granting it — Barclay-Johnson -v- Yuill [1980] I W.L.R. 1259. If damages were to be awarded to the Plaintiffs on the basis of their claims, there would be a danger of default by Ranks through inability to pay the amounts of the awards. But to justify such an injunction, the anticipated disposal of a defendant's assets must be for the purpose of preventing a plaintiff from recovering damages and not merely for the purpose of carrying on a business or discharging lawful debts. On the question of the balance of convenience, there can be very little question about the advantage of disposing of the wheat and flour which is perishable. If the Defendants were to be successful in the action, no undertaking as to damages given by the Plaintiffs would be of any value. The Court accepted as correct the statement of Sir Robert Megarry V.C. in the Barelay-Johnson case, where he said "I would regard the Lister principle as remaining the rule, and that Mareva doctrine as constituting a limited exception to it." "The Lister Rule" (Lister -v- Stubbs) is that the Court will not grant an injunction to restrain a defendant from parting with his assets so that they may be preserved in case the plaintiffs claim succeeds. Application refused. Harry Fleming & Ors. -v- Ranks (Ireland) Limited and Donal O'Donoghue - High Court (per McWilliam J.) 16March, 1983- [1983] ILRM 541. William Johnston

ROAD TRAFFIC ACTS Obligation on prosecuting Authority to supply a copy of the Certificate if they

x