DPP v Collins

CourtSupreme Court
JudgeHenchy J.
Judgment Date02 June 1981
Neutral Citation1981 WJSC-SC 1553
Date02 June 1981

1981 WJSC-SC 1553


Henchy J.

Griffin J.

Kenny J.

D.P.P. v. Collins

Judgment of Henchy J.delivered the 2nd June 1981 Nem Diss


The defendant was convicted in the District Court of driving a mechanically propelled vehicle in a public place when the concentration of alcohol in his blood exceeded the permitted maximum. This is an offence created by subs. (2) of the new s. 49 of the I96I Act (i.e. the Road Traffic Act, 1961) which was inserted by s. 10 of the 1978 Act (i.e. the Road Traffic (Amendment) Act, 1978).


The defendant appealed to the Circuit Court. His appeal came on for hearing in Galway before Judge Grattan Esmonde. There was apparently no controversy as to the oral evidence presented by the prosecution, so the appeal developed into a question as to whetherthe defence could show a technical flaw in the prosecution case. Such is the nature of the 1978 Act and the Road Traffic (Amendment) Act, 1978(Part III) Regulations (which, for brevity, I shall refer to as "the Regulations") that a person accused of an offence such as this is invariably confined to raising technical points. So it was that counsel for the defendant in this case gave full play to his ingenuity on the hearing of the appeal in the Circuit Court. He raised many points of law. Some of them, at least, might have been readily disposed of by the Circuit Court Judge. Instead, he chose to refer them all to this Court for resolution in a consultative case stated under s. 16 of the Courts of Justice Act, 1947.


The pertinent facts will appear in the answers I give to the questions posed in the case stated. I set out those questions in terms which differ from those in the case stated but which seem to me to state most clearly the points involved.


1. Was the form signed by the designated medical practitioner duly completed in the manner required by s. 21 of the 1978Act?


S. 21(1) required the designated medical practitioner in this case (Dr. Anthony Lundon) to "complete the form prescribed for the purposes of this section". The form prescribed for the purposes of the section was undoubtedly used by Dr. Lundon, but it was argued on behalf of the defence that he did not complete it in the way s. 21(1) required. It was urged that completion of the printed form required him to sign it twice. The basis of this argument derives from the words and format of the final part of the printed form. In its printed condition it is asfollows;


I, the under-signed designated medical practitioner -[then follows a blank line] took from the person named at 1 above the blood specimen or (delete whichever is not appropriate) obtained from the person named at 1 above the specimen of his urine to which this formrelates.


I divided the specimen into two parts. I placed each part in a container, which I forthwith sealed. I labelled each container with the name of the person and the date. I gave both containers to a member of the Garda Siochana.


Signature of the designated medica practitioner


It was proved by the prosecution that Dr. Lundon affixed his signature ("Anthony Lundon M.B.") to the last line, but it was submitted that he did not duly complete the form because the line left blank in the printed form after the words "I, the under-signed designated medical practitioner" was left blank by him.


I find neither force nor merit in this submission. The blank line was probably intended to have inserted in it the name (but not necessarily the signature) of the designated medical practitioner. But it was an optional entry. In terms of syntax, clarity of meaning and verification of conduct, nothing would have been gained if Dr. Lundon's name had been inserted in theblank line. If it had been inserted, the form would have looked more complete, but the insertion would have made only a visual difference. What was required to complete (i.e. to make whole) this part of the form was for the designated medical practitioner to verify, by signing his name at the end line, that he had done the several things recited in the printed form as having been done by him. The opening words "I, the undersigned designated medical practitioner" and the signature at the end identify one and the same person, and the signature purports to aver that Dr. Lundon did the acts which the intervening part of the from attributes to him. It is therefore, in the words of s. 23(1) "a duly completed form under section 21" and enjoys the probative value ascribed to it by s. 23(1).


Since it is made abundantly clear in the form that it was a specimen of blood rather than of urine that was taken by Dr. Lundon, his failure to delete the whole of the line "obtained from the person named at 1 above the specimen of his urine" (which line was clearlyintended to be retained if the specimen was one of urine rather than of blood) was obviously a slip. However, the fact that a line in ink was drawn (presumably by Dr. Lundon) through the words I have italicised would prevent any reader of the signed form from realistically concluding that it was other than a completed form in respect of the blood sample in question. The purpose of this form was to identify the particular blood sample and to show that the set procedures were followed in regard to it. Once Dr. Lundon affixed his signature to the form as filled in, the failure to delete in full the line referring to a specimen of urine was no more than a technical slip. It left the true content of the filled-in and signed form unaffected. So it cannot be said that this slip meant that the form was not duly completed.


This answer disposes of the matters raised in Questions 1, 3, 4 and 11 of the case stated.


2 2.Is it necessary in a prosecution such as this for the prosecution to give prima facie evidence of the Regulations In the manner prescribed by of the Documentary Evidence Act, 1925?


The latter subsection allows prima facie evidence of the Regulations to be given by the production of a copy of the Iris Oifigiuilpurporting to contain them or by the production of a copy of the Regulations Printed under the superintendence or authority of and published by the Stationery Office, This statutory permission to treat as prima facie evidence production in either of the prescribed ways was necessary because regulations, rules, orders or bye-laws (or any kind of statutory instrument) could not ordinarily be given judicial notice. Thus, it was held in The People (Attorney General) v. Kennedy 1946 I.R. 517 by the Court of Criminal Appeal that failure to prove, in accordance with s, 4(1) of the 1925 Act, the Emergency Order creating the offence of which the appellant had been convicted, was a fatal defect in the prosecution case; so the conviction wasquashed.


In The People (Attorney General) v. Griffin 1974I.R. 4l6 the accused had been convicted in the Circuit Court of a drug offence created by Regulations made under the Dangerous Drugs Act, 1924. The Court of Criminal Appeal, following Kennedy's Case, quashed the conviction but granted a certificate of leave to appeal to this Court under s. 29 of the Courts of Justice Act, 1924, the certified point being whether there was jurisdiction in the circumstances to order a retrial. The report of Griffin's Casein this Court (which held that there was no jurisdiction to order a retrial) shows that the prosecution had conceded in the Court of Criminal Appeal that the decision in Kennedy's Case had made it impossible to stand over the conviction in Griffin's Case.


It is to be noted that what s. (1) of the Documentary Evidence Act, 1925does is to enable prima facie evidence of rules, orders, regulations, or bye-laws to be given with almost the same facility as if they were statutes. All that is necessary is to produce, not to adduce formally in evidence, either the relevant issue of the Iris Oifigiuil or the copy of therelevant document printed under the superintendence or authority of and published by the Stationery Office. Compare s. 2 of the same Act, which allows prima facie evidence of a statute to be given by the production of the statute printed under the superintendence or authority of and published by the Stationery Office. In both cases it is the production of the specified version that enables the court to treat that version as prima facie evidence of the document. Thus it is that the courts routinely act on the Stationery Office version of a piece of delegated legislation ( such as Rules of Court) no less than they act on the Stationery Office version of a statute. They do so under the enabling powers bestowed on them by the 1925 Act, and it makes no difference whether the case is civil or criminal, or, if criminal, whether the piece of delegated legislation in question has created the offence charged. In the latter event, however, the courts are likely to hold (as they did in Kennedy's Case and in Griffin'sCase) a conviction to be bad for failure toproduce the designated version of the piece of delegated legislation creating the offence, for without such production the existence or the precise ingredients of the offence may be in doubt; and, furthe the court may be deprived of an opportunity of ensuring that the accused will not be convicted (in breach of Art. 15, s. 5" of the Constitution) for an act which had not been declared to be an infringement of the law at the date of its commission.


However, it is important to observe that the power given by s. (1) of the 1925 Act to treat as prima facie evidence the mere production of the designated version of the instrument in question is enabling only. It does not extinguish or curb the inherent power of a court in certain circumstances to treat particular matters...

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