High Court of Ireland Decisions

1. This is a consultative Case Stated by Judge William G. J. Hamill on 20th February 1998. The issue is very net, and concerns the construction of Section 6(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997. The section reads:-

2. In the present case the prosecution sought to give evidence of arrest, charge and caution by way of certificates under this section. In fact the Accused was arrested and cautioned by one Guard and was subsequently charged and cautioned at Store Street Garda Station by a Sergeant, but nothing turns on the fact that there were two certificates submitted. The only issue in the case is whether evidence had to be adduced that the Accused had been arrested otherwise than under a warrant.

3. Counsel on behalf of the Accused argues that the words "who has been arrested otherwise than under a warrant" in the subsection amounts to a condition precedent to the admissibility of the matters stated in the certificate and, that being so, the Prosecutor must prove the existence of the fact that constitutes the condition precedent. She also argues that there can be no inference drawn from the existence of the certificate that the Accused must have been arrested otherwise than under a warrant, and that, if there were any such inference or presumption, its effect would be to impose the onus of proof as to the form of arrest on the Accused. To do so would be contrary to the general principle that the prosecution must prove every element of the case against the Accused, and that if this had been the intention of the legislature, then it would have to have been very clearly stated.

4. The Prosecutor's argument is primarily that if the arresting Guard was obliged to give evidence that the Accused had been arrested otherwise than under a warrant, this would rob the section of any effectiveness, as the whole purpose of the provision is that the prosecution can avoid having the arresting Guard in Court to give evidence. He further points out that if the Accused raises any question on the point, the Judge may direct that oral evidence of the matter stated in the certificate should be given, pursuant to Section 6(4).

5. The primary rule in construing a section of any statute is that the Court must interpret the Statute in accordance with the plain and ordinary meaning of the words used in it. This section permits a certificate to be admissible as evidence of three specific matters, namely, the arrest, the charge and the caution. These are three matters which heretofore had to be proved by oral evidence. The legislature decided that this relaxation of the laws of evidence should only apply where the Accused was arrested otherwise than under a warrant, and therefore if the Accused was arrested under a warrant, the certificate is not admissible as evidence of these matters. In fact the two certificates presented in this case did not state that the Accused had been arrested otherwise than under a warrant, but even if they had so stated, that statement is not a matter which, under the section, is admissible as evidence. I think the section is quite clear and unambiguous, and that it is a condition precedent to the admissibility of the evidence that the Accused has been arrested otherwise than under a warrant. This seems to me to be an essential proof of the prosecution, and furthermore a proof which must be adduced before the certificate is submitted. The prosecution must prove its case, and therefore must prove that the circumstances exist which make the certificate admissible.

6. I do not accept that Section 6(4) assists the prosecution in any way. This subsection is certainly included for the protection of an accused, but it confers a discretion on the Court to direct oral evidence "if it considers that the interests of justice so require" . It seems to me that the reality is that the Judge would only exercise his discretion under this section where he has some evidence that the interests of justice do require oral evidence, and as the person who gave the certificate is not before the Court, and therefore cannot be cross-examined, that evidence is probably going to have to come from the Accused, which would, in effect, shift the onus of proof on to the Accused.

7. I would accept that the legislature probably did not intend that evidence of the nature of the arrest would have to be given, but I cannot construe a Statute which is quite clear in its wording in accordance with what I might perceive as the intention of the legislature. I must give the words their normal meaning. It would have been very easy to have avoided this problem, for example, by providing at (a) in the subsection that the member "arrested that person otherwise than under a warrant for a specified offence" . I do not think that it is open to me to add those words to the section, which in effect is what the Prosecutor is asking me to do.

8. Accordingly, I would answer the questions raised in the Case Stated as follows:-