DPP v Somers

• Jurisdiction: Ireland
• Judge: O'Flaherty J.,BARRON J.
• Judgment Date: 01 January 1999
• Neutral Citation: 1998 WJSC-SC 6122
• Docket Number: [S.C. No. 159 of 1997],(159/97)
• Court: Supreme Court
• Date: 01 January 1999

1998 WJSC-SC 6122

THE SUPREME COURT

O'Flaherty J.,

Lynch J.,

Barron J.,

(159/97)

DPP v. SOMERS

AN CH ÚIRT UACHTARACH

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

prosecutor

.v.

SEAMUS SOMERS

Defendant

1 Judgment delivered on the 22nd day of July, 1998, by O'Flaherty J. [LYNCH AGR.]

2 This is a case stated by His Honour Judge Sean O'Leary, a judge of the Circuit Court, assigned to the South Eastern Circuit at the relevant time, pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947.

3 The case stated recited that the defendant, Seamus Somers, had been convicted on the 19th September, 1995, in the District Court of an offence of driving a motor car with excess alcohol in his blood, contrary to s. 49 (2) 6A of the Road Traffic Act, 1961, as amended by s. 10 of of the Road Traffic Act, 1994.He was fined £100 and was disqualified from holding a driving licence for a period of two years.

4 On the 4th June, 1996 his appeal was heard at the Circuit Court. Nothing turns on the facts of the case and they can be summarised as follows. On the 6th June, 1995, Garda O'Hara observed the defendant's driving formed the opinion that he was not fit to drive. He was arrested and brought to Kilkenny garda station. Dr. Mary O'Gorman was asked to come to the garda station and the defendant duly supplied her with a sample of blood.

5 Section 18 of the Road Traffic Act, 1994, provides:-

6 2 "(1) Where under this part a designated doctor has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine, the doctor shall divide the specimen into 2 parts, place each part in a container which he shall forthwith seal and complete the from prescribed for the purpose of this section.

7 (2) Where a specimen of blood or urine of a person has been divided into 2 parts pursuant to subsection (1), a member of the garda siochana shall offer to the person one of the sealed containers together with a statement is writing indicating that the he may retain either of the containers.

8 (3) As soon as practicable after subsection (2) has been complied with, a member of the garda siochana shall cause to be forwarded to the Bureau (ie. the Medical Bureau of Road Safety) 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.

9 (4) In a prosecution for an offence under this part or under section 49 or 50 of the Principal Act, it shall be presumed until the contrary is shown that subsections (1) to (3) have been complied with."

10 The Road Traffic Act, 1994, (Part III) Regulations, 1994; S.I. 351 of 1994 contains the form to be completed by a designated doctor under s. 18.

11 It is a simple form as follows:- "From to be completed by a designated doctor under section 18 of the Road Traffic Act, 1994.

1. Name and address of the person from whom the specimen to which this form relates was taken, or who provided the specimen.	â€"â€"â€"â€"â€"â€" â€"â€"â€"â€"â€"â€"
2. Nature of specimen. (insert "blood" or "urine" as appropriate)	â€"â€"â€"â€"â€"â€"
3. Place at which specimen was taken or provided. (delete whichever is not appropriate)	(a) â€"â€"â€"â€"â€"â€" Garda Siochana Station (b) â€"â€"â€"â€"â€"â€" Hospital
4. Date on which specimen was taken or provided.	â€"â€"â€"â€"â€"â€"
5. Time at which specimen was taken or provided.	â€"â€"â€"â€"â€"â€"
6. Garda Siochana station from which the specimen will be forwarded to the Bureau.	â€"â€"â€"â€"â€"â€"

(to be completed in the case of a specimen taken or provided in a hospital)

12 I, the under-signed designated doctor

13 (a) took from person named at 1 above the specimen of blood or (delete whichever is not appropriate)

14 (b) obtained from the person named at 1 above the specimen of urine to which this form relates.

15 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 members of the Garda Siochana.

16 Signature of designated doctor â€"â€"â€"â€"â€"â€"

17 The doctor duly completed the from except for paragraph 2 to do with the nature of the specimen. This was left blank. However, since (b) had been deleted, leaving only a reference to a blood specimen, there could be no doubt that the from conveyed the information that it was with a blood sample that it was concerned. So, the learned Circuit Court judge was inclined to hold (subject to stating this case) that by deleting sub-paragraph (b) of the certificate and retaining sub-paragraph (a) all the essential information required in the form from the designated doctor was conveyed without ambiguity. He further held that no prejudice was suffered by the accused on this finding.

18 The opinion that he seeks from this Court is as follows:-

"Was I right in law in holding that the failure of the designated medical practitioner ( recte designated doctor) to complete clause 2 of the form did not entitle the accused to a dismiss of the charge in all of the circumstances."

19 I would answer the question in the affirmative.

20 I believe this case is all but ruled by the previous decisions of this Court in Director of public prosecutions .v. Kemmy [1980] IR 160 and Director of public prosecutions .v....