Maher v Attorney General

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1974
Date01 January 1974
Docket Number[1971. No. 3735 P.]
Maher v. Attorney General
JOHN P. MAHER
Plaintiff
and
THE ATTORNEY GENERAL and FRANCIS T. MURPHY
Defendants.
[1971. No. 3735 P.]

Supreme Court.

Constitution - Statute - Validity - Judicial function - Assessment of evidence - Statutory provision stating certificate to be conclusive evidence of matters certified - Whether statutory provisions severable - Road Traffic Act, 1968 (No. 25), s. 44,sub-s. 2 (a) - Constitution of Ireland, 1937, Articles 15, 34, 37, 38.

Section 44, sub-s. 2 (a), of the Road Traffic Act, 1968, provided that a certificate, stating that a specimen of a person's blood contained a specified concentration of alcohol, should be "conclusive evidence" that, when the specimen was taken, the concentration of alcohol in that person's blood was as specified in the certificate. The plaintiff was convicted of an offence under s. 49 of the Road Traffic Act, 1961, in the District Court after a trial in which such certificate was admitted in evidence as an essential proof. The plaintiff claimed in the High Court a declaration that the sub-section was invalid having regard to the provisions of the Constitution, and an order annulling his conviction. On appeal by the plaintiff from the dismissal of his action, it was

Held by the Supreme Court, in allowing the appeal, 1, that the administration of justice in a criminal trial was confined by the Constitution to the courts and judges constituted and appointed in accordance with the provisions thereof and, therefore, that the essential ingredients of the offence with which an accused was charged was necessarily reserved to such courts and judges.

2. That the word "conclusive" in s. 44, sub-s. 2 (a), of the Act of 1968 had the effect of infringing the judicial power of the District Justice at the trial of the plaintiff and was invalid having regard to the provisions of the Constitution.

The State (C.) v. Minister for Justice [1967] I.R. 106 applied.

3. That the entire of sub-s. 2 (a) was invalid as it was not possible to sever the word "conclusive" from the remainder of the sub-section.

Appeal from the High Court.

Section 49, sub-s. 1, of the Road Traffic Act, 1961 (as amended by s. 29 of the Road Traffic Act, 1968) provides:—"(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle or 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 blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood." The amendment effected by s. 29 of the Act of 1968 was the addition of the words "or while" and the following words of s. 49, sub-s. 1, of the Act of 1961. Section 44, sub-s. 2 (a), of the Act of 1968, infra, provided that a certain certificate should be conclusive evidence of the concentration of alcohol in the blood of a person accused of an offence under s. 49 of the Act of 1961.

On the 22nd September, 1971, the plaintiff was tried summarily in the District Court (on a prosecution by the second defendant) and was convicted of an offence contrary to s. 49 of the Act of 1961; at the trial a certificate of the type mentioned in s. 44, sub-s. 2 (a), of the Act of 1968 was admitted in evidence as an essential proof. On the 29th October, 1971, the plaintiff issued a plenary summons in the High Court claiming a declaration that s. 44, sub-s. 2 (a) of the Act of 1968 was invalid having regard to the provisions of the Constitution of Ireland, 1937, and claiming an order setting aside his conviction. In his statement of claim dated the 23rd December, 1971, the plaintiff averred that on the 30th September he had applied in writing to the District Justice for a Case stated pursuant to s. 2 of the Summary Jurisdiction Act, 1857, but that such Case had not yet been stated by the District Justice.

The plaintiff's action was dismissed by O'Keeffe P. on the 22nd June, 1972, and the plaintiff then appealed to the Supreme Court from the judgment and order of the High Court.

Cur. adv. vult.

The judgment of the Supreme Court was delivered by FitzGerald C.J.

FitzGerald C.J.:—

On the 22nd September, 1971, the plaintiff was convicted of an offence under s. 49 of the Road Traffic Act, 1961 (the principal Act) as amended by s. 29 of the Road Traffic Act, 1968. The combined effect of those two sections is to make it an offence to drive a motor vehicle while there is present in the driver's body "a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood." Section 44 of the Act of 1968 deals with questions of proof in the prosecution of such offences; it provides6 as follows:—

"44.—(1) A certificate expressed to be issued under s. 43 (1) shall, without proof of the signature of the person purporting to sign the certificate or that that person was the proper person so to sign, be sufficient evidence in any legal proceedings of the matters certified in the certificate, until the contrary is shown.

(2) Where a certificate is expressed to have been issued under section 43 (3), the following provisions shall, without proof of the signature of the person purporting to sign the certificate or that that...

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