State (Murphy) v Johnston

• Jurisdiction: Ireland
• Judgment Date: 01 January 1983
• Date: 01 January 1983
• Docket Number: [S.C. No. 134A of 1979]
• Court: Supreme Court

The State (Murphy) v. Johnston

The State (at the Prosecution of Norbert Murphy)

and

Francis Johnston

[S.C. No. 134A of 1979]

Supreme Court

Statute - Interpretation - Mistake - Court's function limited - Remedy to be effected by legislature - Effect of certificate of Medical Bureau of Road Safety- Road Traffic (Amendment) Act, 1978 (No.19), s. 23.

At the trial of the prosecutor in the District Court he was convicted by the respondent District Justice on a complaint that the prosecutor had driven a vehicle in a public place at a time when he had an unlawful concentration of alcohol in his body, contrary to s. 49 of the Road Traffic Act, 1961. At the trial the concentration of alcohol in the prosecutor's body at the relevant time was proved by, inter alia, a certificate issued by the Medical Bureau of Road Safety pursuant to s. 22 of the Act of 1978. Section 23 of that Act provided that such certificate 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 Part III of the Act of 1978 "or under Part III of the Act of 1968."

The reference to Part III of the Road Traffic Act, 1968, appeared to be a mistake since that Part III was concerned with driving licences and not with driving offences, while a reference to Part V of the Act of 1968 would have been more suitable. The prosecutor relied upon that mistake when he applied in the High Court and obtained a conditional order of certiorari quashing his conviction, unless cause were shown to the contrary. The High Court allowed the cause shown and discharged the conditional order. On appeal by the prosecutor, it was

Held by the Supreme Court (O'Higgins C.J., Griffin and Parke JJ.), in disallowing the appeal, 1, that the reference in s. 23 of the Act of 1978 to Part III of the Act of 1968 was an obvious error which the Court would not attempt to remedy by treating the erroneous reference as being a reference to Part V of the Act of 1968, since to adopt that course would be to amend the enactment and to usurp a function of the legislature.

2. That proof of compliance with the provisions of Part V of the Act of 1968 was not necessary for a successful prosecution under s. 49 of the Act of 1961, while proof of compliance with the provisions of Part III of the Act of 1978 had been necessary at the trial of the prosecutor and had been supplied by the certificate of the Bureau.

Cases mentioned in this report:—

¹ R. v. Wilcock (1845) 7 Q.B. 317.

² In re Boothroyd (1846) 15 M.& W. 1.

Appeal from the High Court.

On the 21st January, 1979, the prosecutor, Norbert Murphy, was convicted in the District Court by the respondent District Justice at the hearing and determination of a complaint that on the 12th September, 1978, at Naas in the county of Kildare the prosecutor drove a vehicle in a public place while there was present in his body an unlawful concentration of alcohol, contrary to s. 49, sub-s. 2, of the Road Traffic Act, 1961. The Road Traffic (Amendment) Act, 1978, came into operation on the 20th July, 1978, by virtue of the Road Traffic (Amendment) Act, 1978 (Commencment) Order, 1978.

On the 26th February, 1979, the prosecutor applied for and obtained in the High Court (McMahon J.) a conditional order of certiorari quashing his conviction, unless cause were shown to the contrary. The respondent showed cause by notice dated the 11th April, 1979. On the 31st May, 1979, the High Court (Gannon J.), in an extempore judgment, allowed the cause shown and discharged the conditional order. The prosecutor appealed to the Supreme Court.

Sub-section 2 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 blood will...