The State (Keeney) v O'Malley

• Jurisdiction: Ireland
• Judge: Mr.Justice Lynch
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-HC 463
• Docket Number: No. 499 S.S/1984
• Court: High Court
• Date: 01 January 1986

1985 WJSC-HC 463

THE HIGH COURT

No. 499 S.S/1984

KEENEY v. O'MALLEY

BETWEEN:

THE STATE AT THE PROSECUTION OF PATRICK (OTHERWISE PADDY) KEEN

PROSECUTOR

HIS HONOUR JUDGE PETER O'MALLEY

AND

RESPONDENT

Citations:

HOLLAND, STATE V KENNEDY 1977 IR 193

ROAD TRAFFIC (AMDT) ACT 1978 S13

ROAD TRAFFIC (AMDT) ACT 1978 S13(3)

ROAD TRAFFIC (AMDT) ACT 1978 S23(3)

TYNAN, STATE V KEANE 1968 IR 348

Synopsis:

CRIMINAL LAW

Defence

Plea in bar - Autrefois acquit - Conviction in District Court - Defendant appealing to Circuit Court - Conviction in Circuit Court - Conviction on appeal based on inadmissible evidence - Conviction by Circuit Court judge set aside by High Court on certiorari - Appeal resumed in Circuit Court - Effect of quashing order of Circuit Court - Whether defendant could plead autrefois acquit at resumed hearing of appeal - Circuit Court judge's error made within exercise of his proper jurisdiction - Quashing of order of Circuit Court by certiorari equivalent to autrefois acquit - Prohibition granted to prevent continuation of appeal other than order allowing appeal - (1984 No. 499 SS - Lynch J. - 21/12/84).

The State (Keeney) v. O'Malley

STATE SIDE

Certiorari

Order absolute - Effect - Criminal law - Autrefois acquit - Appeal to Circuit Court from conviction in District Court - Conviction in Circuit Court based on inadmissible evidence - Circuit Court order set aside on certiorari - Resumption of hearing of appeal - Defendant entitled to order setting aside conviction - (1984 No. 499 SS - Lynch J. - 21/12/84).

The State (Keeney) v. O'Malley

1 Judgment of Mr.Justice Lynch delivered the 21st day of December, 1984

2 This case arises out of an incident that happened as long ago as the 23rd of January, 1979. On that date the Prosecutor was driving a mechanically propelled vehicle in a public place when he was stopped by a member of the Garda Síochána, arrested and brought to the local Garda Station.

3 In the Garda Station the Prosecutor was required pursuant to Section 13 of the Road Traffic (Amendment) Act 1978to give a sample of urine to, or permit a sample of blood to be taken by, a registered medical practitioner. The person alleged to be the registered medical practitioner was a Doctor Mansoor. The Prosecutor refused to comply with either of the requirements.

4 Accordingly, the Prosecutor was summoned (inter alia) for the offence of so refusing contrary to Section 13 (3) of the 1978 Act. He was convicted in the District Court and fined £ 200 and disqualified from driving for twelve months. He appealed to the Circuit Court and the appeal came on for hearing in that Court on the 6th of October 1981. The person alleged to be the registered medical practitioner, namely the said Doctor Mansoor, was not in attendance on that occasion. Section 23 (3) of the 1978 Act does not create any presumption regarding a person being a registered practitioner on a prosecution for refusal to give or permit to be taken a specimen contrary to Section 13 (3)

5 In the absence of the said Doctor Mansoor, the State then called as a witness a Sergeant Murray, a member of the Garda Síochána, who gave evidence that he had known the said Doctor Mansoor for some five or six years and that he knew the said Doctor Mansoor to be a registered medical practitioner, and further that he had on a number of occasions checked the medical register and had seen contained therein the name of the said Doctor Mansoor and that he, the Sergeant, was therefore satisfied that the said Doctor Mansoor was a registered medical practitioner. The Sergeant was the last witness called by the State which then closed its case.

6 Counsel on behalf of the Prosecutor then submitted to the learned Circuit Court Judge that the State had not discharged the onus upon them of proving that the said Doctor Mansoor was a registered medical practitioner and that the evidence of the Garda Sergeant that he knew the said Doctor Mansoor to be a registered medical practioner was not proper or adequate evidence to discharge the onus on the State, and that neither was the onus discharged by the Sergeant's evidence that he had seen the name of the said Doctor Mansoor in the medical register. The learned Circuit Court Judge rejected these submissions and affirmed the District Court conviction varying the penalty to a fine of £100 with a disqualification of twelve months.

7 The Prosecutor then applied to the High Court for an Order of Certiorari to quash the said Order of the learned Circuit Court Judge. Paragraph 10 of the Prosecutor's affidavit in the said proceedings (1981. No. 520 S.S.) stated as follows:-

" I therefore say and believe that the charges against me as aforesaid should have been struck out as the State had failed to establish that the said Doctor Mansoor was a registered medical practitioner and that the said Circuit Court Judge when convicting me of the aforesaid charges acted in want of, or alternatively in excess of, jurisdiction."

8 A conditional Order of Certiorari was granted by the late Mr. Justice Ellis on the 16th of November 1981 in the following terms:-

" It is Ordered that an Order of Certiorari do issue directed to His Honour Judge peter O' Malley to send before the Court here for the purpose of being quashed the said Order dated the 6th day of October 1981 and all records and entries relating thereto on the grounds set out in paragraph 10 of the said affidavit and in addition that the said Circuit Court Judge acted in breach of the Prosecutor's common law and constitutional rights and in breach of natural justice."

9 Cause was shown on behalf of the learned Circuit Court Judge and the Director of Public Prosecutions and an application to make absolute the Conditional Order notwithstanding Cause Shown came before Mr. Justice Barrington on the 22nd of February 1982 when he made an Order disallowing the Cause Shown in the following term:-

" It Is Ordered that the Cause Shown be disallowed and that in default of Cause Shown as aforesaid the said Order dated the 16th day of November 1981 be made absolute."

10 An appeal was taken on behalf of the learned Circuit Court Judge and the Director of public Prosecution to the Supreme Court and the said appeal came on for hearing on the 3rd day of June 1983, when the Supreme Court made as Order in the following terms:-

" It Is Ordered and Adjudged that this Appeal do stand dismissed and that the said Order of the High Court dated the 22nd day of February 1982 do stand affirmed accordingly."

11 It will be seen, therefore, that the basic Order made by the Superior Courts in the said proceedings remained the conditional Order of Certiorari made by the late Mr. Justice Ellis in the terms which I have quoted above.

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