DPP v Kemmy

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 25 March 1980
• Date: 25 March 1980
• Docket Number: [1979 No. 301 SS.]

Supreme Court

[1979 No. 301 SS.]

Director of Public Prosecutions v. Kemmy

The Director of Public Prosecutions

Complainant

and

Michael Kemmy

Defendant

Cases mentioned in this report:—

¹ Attorney General v. Hollingsworth (1973) 107 I.L.T.R. 77.

² Bennett v. Brumfitt (1867) L.R. 3 C.P. 28.

³ State (Bruce) v. Shannon (1948) 82 I.L.T. & S.J. 180.

⁴ State (Attorney General) v. Roe [1951] I.R. 172.

Statute - Interpretation - Completion of statutory form - Form to be completed and signed by doctor - Completed form to be sent to statutory body - Doctor completing and signing upper of two duplicate forms - Doctor's entries appearing instantaneously on lower duplicate - Lower duplicate sent to statutory body - Requirements of statute satisfied - Road Traffic (Amendment) Act, 1978 (No. 19), ss. 21, 23.

Appeal from the High Court.

The defendant appeared in the District Court on the 22nd March, 1979, to answer a complaint that on the 12th December, 1978, he had driven a vehicle in a public place while there was present in his urine an unlawful concentration of alcohol contrary to the provisions of s. 49, sub-s. 3, of the Road Traffic Act, 1961. The District Justice dismissed the complaint but on the 3rd July, 1979, he stated a Case pursuant to s. 2 of the Summary Jurisdiction Act, 1857-as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961-seeking the opinion of the High Court as to whether he had been correct in dismissing the complaint. The facts, as found by the District Justice, appear in the judgments, infra.

Paragraph 2 (d) of the Case Stated was as follows:— "2. At the hearing of the said complaint, evidence for the prosecution was given by Garda P. Donlan and I made the following findings of fact and law . . . (d) That the requirements of section 21, sub-sections (1) to (3), of the said Act were complied with, save that Garda Donlon retained the form prescribed for the purposes of section 21 of the said Act and that, instead of causing the completed form to be forwarded to the Bureau as required by sub-section (3) of the said section, he caused a copy of that form to be forwarded in its place."

Paragraphs 6 and 7 of the Case Stated were as follows:—

"6. I, being of the opinion that the prosecution had failed to prove compliance with the requirements of section 21, sub-section 3, of the said Act, dismissed the said complaint. I was mindful of the provisions of section 43 (1) of the Road Traffic Act, 1968, which had provided that a copy of the doctor's certificate should be forwarded to the Bureau, and I was mindful of the different wording used in the Road Traffic (Amendment) Act, 1978.

7. The opinion of the Court is sought as to whether, upon the above statement of facts, my determination was correct in point of law."

Sub-section 3 of s. 49 of the Road Traffic Act, 1961, provides:— "A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 135 milligrammes of alcohol per 100 millilitres of urine."

Section 21 in Part III of the Road Traffic (Amendment) Act, 1978, provides:—

"(1) Where under this Part a designated registered medical practitioner has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine, the designated registered medical practitioner shall divide the specimen into two parts, place each part in a container which he shall forthwith seal, and complete the form prescribed for the purposes of this section.

(2) Where a specimen of blood or urine has been divided into two quantities as required by subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain either of the containers.

(3) As soon as practicable after subsection (2) has been complied with, a member of the Garda Síochána shall cause to be forwarded to the Bureau the completed form referred to in subsection (1), together with the relevant sealed container or, where the person has declined to retain one of the sealed containers, both relevant sealed containers.

(4) In a prosecution under this Part it shall be presumed until the contrary is shown that subsections (1) to (3) have been complied with."

Section 22, sub-ss. 1 and 3, of the Act of 1978 provides—

"(1) 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."

"(3) As soon as practicable after compliance with subsection (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 the 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, sub-s. 2, of the Act of 1978 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, unless 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 Case Stated was heard by Butler J. on the 30th July, 1979, when, in an extempore judgment, the judge answered in the negative the question posed by the District Justice and directed that...