DPP v McDermott

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 12 May 2005
• Neutral Citation: [2005] IEHC 132
• Docket Number: [2005 No.199
• Court: High Court
• Date: 12 May 2005

DPP v MCDERMOTT & RIORDAN

Between:

Director of Public Prosecutions

Prosecutor

And

Richard McDermott and Sheila Riordan

Defendants

[2005] IEHC 132

Record Number: No. 199 SS 2005

THE HIGH COURT

EVIDENCE:

Admissibility

Statutory interpretation - Retrospective effect - Whether statutory alteration in rules of evidence having retrospective effect - Toss Ltd v District Court Justice (Unrep, Blayney J, 24/5/1987); Rex v Chandra Dharma [1905] 2 KB 335; Bairstow v Queens Moat Boathouses Plc. [1998] 1 All ER 343 applied -Registration of Births and Deaths Act 1863 (26 & 27 Vict, c11), s 30 A; Courts (No. 3) Act 1986 (No 33), s 1; Intoxicating Liquor Act 1988 (No16), s 31 - Found to have retrospective effect (2005/199SS - Peart J - 12/5/2005) [2005] IEHC 132 DPP v McDermott

Facts: the applicants were prosecuted for breaches of the Intoxicating Liquor Acts alleged to have been committed on the 20th April, 2002, by selling liquor to a minor. At the trial, the prosecution produced the birth certificate of the minor in question and tendered evidence by the minor's father to the effect that the birth certificate produced was that of his son. The accused contended that the only person who could prove the birth certificate was the mother of the minor, who was not in court. The District Court stated a case to the High Court for its opinion on the question, inter alia, of whether a birth certificate of itself proved the age of a person named therein. The prosecutor urged the High Court to answer the case stated in the affirmative on the grounds, inter alia, that the Social Welfare (Miscellaneous Provisions) Act 2002 amended the Registration of Births and Deaths (Ireland) Act 1863 by inserting, on the 1st July, 2003 prior to the trial in the District Court, sections 30A, 30B and 30C therein. Section 30A provides, inter alia, that: "(2) Every document purporting to be a copy of or extract from an entry in the registers...shall be received in evidence in any proceedings and shall, until the contrary is shown, be deemed to be a true copy of or extract from the entry, and shall be evidence of the terms of the entry. (3) Evidence of an entry in a register...may be given by production of a copy of the entry certified by an t-Ard Chlaraitheoir..." The accused contended that section 30A of the Act of 1863 could not have retrospective effect so as to enable the prosecution to rely on a copy of the birth certificate only as evidence of the age of the date of birth of the minor.

Held by Mr Justice Peart in answering the question posed in the affirmative that, as the amendments to the Act of 1863 by the insertion of section 30A, and which came into effect on the 1st July, 2003, were merely procedural, they were retrospective in effect and could be availed of for the purpose of allowing the ages of minors to be proved in these and any pending or current proceedings by production to the court of a copy of a birth certificate, provided that the statutory provisions are complied with.

Reporter: P.C.

INTOXICATING LIQUOR ACT 1988 S31

CRIMINAL EVIDENCE ACT 1992 S5(5)

SOCIAL WELFARE (MISCELLANEOUS PROVISIONS) ACT 2002 SCHED PART IV

REGISTRATION OF BIRTHS & DEATHS (IRELAND) ACT 1863 S30B

REGISTRATION OF BIRTHS & DEATHS (IRELAND) ACT 1863 S30C

REGISTRATION OF BIRTHS & DEATHS (IRELAND) ACT 1863 S30A(2)

REGISTRATION OF BIRTHS & DEATHS (IRELAND) ACT 1863 S30A(3)

SOCIAL WELFARE (MISCELLANEOUS PROVISIONS) ACT 2002 SI 269/2003

TOSS LTD v DISTRICT COURT JUSTICE IRELAND & AG UNREP HIGH 24.11.1987 1987/8/2258

R v CHANDRA DHARMA 1905 2 KB 335

COURTS (NO. 3) ACT 1986 S1

BENNION ON STATUTORY INTERPRETATION 4ED 265

BAIRSTOW v QUEENS MOAT BOATHOUSES 1998 1 AER 343

1 Judgment of Mr Justice Michael Peartdelivered on the 12th day of May 2005:

2 This consultative case stated arises out of the prosecution of certain charges against the two named defendants relating to the sale of intoxicating liquor to two minors, contrary to s. 31 of the Intoxicating Liquor Act, 1988.

3 The question arising concerns the method by which the prosecution may prove the date of birth of the minor person alleged to have been so supplied, for the purpose of proving its case against the defendants.

4 At the hearing in the District Court, a Garda Inspector gave evidence of carrying out an inspection at the premises in question on the 20th April 2002. He stated that he had spoken to one of the minors who gave his name and gave his date of birth as 22nd July 1985, and that the other minor gave his name and gave his date of birth as 21st June 1984. It appears that both minors were consuming alcohol. The Inspector then stated that he had attended at the Registry of Births, Marriages and Deaths in order to obtain a birth certificate in respect of each minor, and in Court he sought to produce these as evidence of the age of the minors concerned. Counsel for the defendants made objection to this as a method of proving the ages of the minors, submitting that there was no proof that the certificates were certificates of birth relating to the two minors.

5 It appears that the mother of neither minor was in Court, but that the father of one of the minors was present in Court. He gave evidence that one of the minors was his son. He also confirmed his son's date of birth, and stated that the birth certificate produced to the Court as being that of his son was that of his son. However, when questioned by Counsel for the defendants he conformed that he had not been present at the birth of his son. Counsel submitted that the only person who could prove the birth certificate was the mother of the boy, and she was not in court.

6 In respect of the other minor, he gave evidence to the Court that his date of birth was the 21st June 1985 and stated that the birth certificate produced to the court was his birth certificate. However, neither of his parents was present in Court.

7 The President of the District Court has asked that three questions be answered by this Honourable Court:

8 1. Can a father who was not present at the birth of his child give evidence of the age of his child and prove that the birth certificate is valid and proves the truth of the age of the person named therein?

9 2. Must a mother give evidence of the birth to prove age and prove that a birth certificate is valid?

10 3. Does...