State (Walshe) v Murphy

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 16 December 1981
• Date: 16 December 1981
• Docket Number: [1981 No. 252 SS.]

High Court

[1981 No. 252 SS.]

The State (Walshe) v. Murphy

The State (at the Prosecution of James Walshe)

and

Michael Murphy and The Attorney General

Cases mentioned in this report:—

¹ Director of Public Prosecutions v. Kemmy [1980] I.R. 160.

² The State (Browne) v. Feran [1967] I.R. 147.

³ Director of Public Prosecutions v. Collins [1981] I.L.R.M. 447.

⁴ Hobbs v. Hurley (High Court: 10th June, 1980).

⁵ Director of Public Prosecutions v. Corrigan (High Court: 21st July, 1980).

⁶ Director of Public Prosecutions v. Spaight (High Court: 27th November, 1981).

Constitution - Courts - Judge - Validity of appointment - Whether appointment of temporary District Justice reviewable by the courts - Statute - Interpretation - Purpose of enactment - Statutory qualifications for person to be appointed - Criminal law - Practice - Fair procedures - Production of document by prosecution - Courts of Justice Act, 1936 (No. 48), s. 51 - Road Traffic (Amendment) Act, 1978 (No. 19), ss. 22, 23 - Constitution of Ireland, 1937, Articles 13, 15, and 36.

Certiorari.

The facts have been summarised in the head-note and they appear in the judgment of Finlay P., infra. On the 5th May, 1981, the prosecutor was convicted by the first respondent in the District Court of an offence contrary to s. 49, sub-ss. 3 and 4 (a), of the Road Traffic Act, 1961; he was fined a sum of £225 and disqualified from holding a driving licence for a period of 12 months. On the 3rd June, 1981, the prosecutor applied to the High Court (Hamilton J.) and obtained a conditional order of certiorari quashing the order of the District Court, unless cause were shown to the contrary, on the grounds set out in paragraph 11 of his affidavit which was sworn on the 29th May, 1981. Only two of those grounds were argued at the hearing of the prosecutor's motion for an order absolute. They were, first, that the order of the District Court was bad in that the prosecutor had not been furnished, despite repeated requests, with a copy of the certificate issued by the Medical Bureau of Road Safety under s. 22 of the Act of 1978 and, secondly, that the first respondent had not been validly appointed as a temporary District Justice in accordance with the provisions of s. 51 of the Courts of Justice Act, 1936. The first respondent showed cause (by an affidavit sworn on the 27th July, 1981) on the grounds set out in the judgment of Finlay P. infra. Since one of those grounds impugned the constitutionality of s. 51 of the Act of 1936, the prosecutor served notice of the proceedings on the Attorney General, who was then joined as a party to the proceedings.

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." Sub-section 4 (a) of s. 49 of the Act of 1961, provides:— "A person who contravenes subsection (1), (2) or (3) of this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or, at the discretion of the court, to a fine not exceeding £500, or to both."

Section 22 of the Road Traffic (Amendment) Act, 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.

(2) Where the Bureau receives two specimens of blood so forwarded together in relation to the same person or two specimens of urine so forwarded together in relation to the same person, it shall be sufficient compliance with subsection (1) for the Bureau to make an analysis and determination of one of the two specimens of blood or (as may be appropriate) of one of the two specimens of urine.

(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."

Sub-section 1 of s. 51 of the Courts of Justice Act, 1936, as applied and amended by s. 48 of the Courts (Supplemental Provisions) Act, 1961, provides:— "Whenever it appears to the Executive Council that, owing to the temporary absence from duty for any cause of a justice of the District Court or an unusual and temporary increase in the business of the District Court in any district or any other cause, it is necessary, in order to prevent the work of the District Court getting into arrear either generally or in any particular districts or district, to increase temporarily the number of the justices of the District Court, one or more persons who are practising barristers or solicitors of ten years' standing at least at the date of appointment may be appointed to act as a justice or justices of the District Court for such period as the Executive Council shall think proper in respect of each such person."

Article 13, s. 8, sub-s. 1, of the Constitution of Ireland, 1937, provides:—"The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions." Article 35, s. 1, of the Constitution states that the judges of all the courts established in pursuance of Article 34 shall be appointed by the President.

Article 36 of the Constitution of Ireland, provides:—

"Subject to the foregoing provisions of this Constitution relating to the Courts, the following matters shall be regulated in accordance with law, that is to say:—

• (i) the number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges,

• (ii) the number of the judges of all other Courts, and their terms of appointment, and

• (iii) the constitution and organization of the said Courts, the distribution of jurisdiction and business among the said Courts and judges, and all matters of procedure."

In his affidavit grounding his application for a conditional order the prosecutor averred that he had not received a copy of the certificate of the Medical Bureau of Road Safety from that Bureau pursuant to the provisions of s. 22, sub-s. 3, of the Act of 1978. The prosecutor's motion to make absolute the conditional order of certiorari notwithstanding cause shown came before the High Court on the 19th October, 1981, when it was adjourned for hearing before a Divisional Court of the High Court, which took place on the 1st and 2nd December, 1981.

The prosecutor, as defendant, was convicted in the District Court by the first respondent at the hearing of a complaint that the prosecutor had driven a motor vehicle in a public place while there was present in his body an unlawful concentration of alcohol, contrary to s. 49, sub-s. 3, of the Road Traffic Act, 1961. At the date of the conviction the first respondent was acting as a temporary justice of the District Court, having been appointed to that office by the President of Ireland. Prior to the hearing of the complaint, the complainant had failed to comply with the prosecutor's repeated requests that he be furnished with a copy of a certificate, prepared by a statutory body, which stated the result of an analysis of a sample of the prosecutor's urine obtained from him shortly after the commission of the offence charged in the complaint. The certificate stated that the analysis showed that, at the time of the commission of the offence, the prosecutor had an unlawful concentration of alcohol in the sample. Section 23 of the Act of 1978 states that such certificate shall be sufficient evidence of the facts stated therein, until the contrary is shown.

Section 51 of the Act of 1936 provides that a practising barrister or solicitor "of ten years standing at least" at the date of appointment may be appointed to act as a justice of the District Court for a limited period. The first respondent had practised as a barrister for 8 years until the year 1971; thereafter he was employed continually in the public service until his appointment as a justice of the District Court on the 22nd April, 1981.

The prosecutor obtained in the High Court a conditional order of certiorari quashing his conviction, unless cause were shown to the contrary. At the hearing of the prosecutor's motion for an order absolute, notwithstanding the cause shown by the first respondent, it was

Held by the High Court (Finlay P., Gannon and Hamilton JJ.), in disallowing the cause shown and making an order absolute, 1, that the validity of the conviction of the prosecutor by the first respondent depended upon the validity of that respondent's appointment, by the President of Ireland, as a justice of the District Court.

2. That the Court's power to review the said conviction was not ousted by the provisions of Article 13, s. 8, sub-s. 1, of the Constitution of Ireland which state that the President of Ireland"shall not be answerable" to any court for any act done, or purported to be done, by him in the exercise and performance of the powers and functions of his office.

3. That the existence of the provisions of Article 36 (ii) of the Constitution stating that the number of the judges of the lower courts "and their terms of appointment" shall be regulated in accordance with law (but omitting to state the qualifications to be held by a person...