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Cite as: [1998] IESC 49

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D.P.P. v. Fennelly [1998] IESC 49 (2nd December, 1998)

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O’Flaherty J,

Lynch J.,

Barron J.,

(136/98)

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Appellant

.V.

JOHN FENNELLY

Accused/Respondent

Judgment (ex-tempore) delivered on the 2nd day of December, 1998, by O’Flaherty J.

1. This is an appeal brought by the Director of Public Prosecutions from the order of the High Court (O’Higgins J.) of 6th March, last wherein he answered a question posed in a case stated from the District Court in favour of the respondent, John Fennelly, confirming that the District Judge was right in the course that he had taken.

2. The matters are well set forth in the course of the case stated by District Judge William Hamett. He recounts that he heard the prosecution on 13 ^th November, 1996, at the District Court sifting at Callan, Co. Kilkenny. It was alleged that the accused on 6th May, 1996, was in charge of a motor cycle when he had an excess quantity of alcohol in his blood. He was duly arrested

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and brought to the garda station and met the doctor and so forth. He provided a blood sample. Nothing turns on the sequence of events from his arrest to his arrival at the garda station and to the taking of the blood sample. was a very high one, 278mg of alcohol to The reading l00ml of blood. As Lynch J. observed in the course of the hearing, he was three and a half times over the limit.

3. However, there was a mishap in the course of the hearing because Sergeant Tracey when he handed in the certificate from the Medical Bureau of Road Safety into Court he inadvertently stated that the certificate from the Bureau gave a reading that the sample as analysed contained 278m1 alcohol per 100ml of urine. But it is questionable whether this was evidence at all. It was certainly something he need not have said because s. 21(3) of the Road Traffic Act, 1994, provides:-

“A certificate expressed to have been issued under section 19 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with the requirements imposed on it by or under this Part or Part V of the Act of 1968.”

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4. There was an attempt made in the course of the hearing to get the Sergeant to correct his error. This has not been debated before us so I pass from it except to observe in an obiter fashion that really the object of any hearing, whether it is a criminal case or otherwise, is to see that justice is done and if there are slips or accidents in the course of a hearing I do not think the interests of justice are served by adopting too strict an approach. However, I will pass on from that because the case is decided in my judgment upon the basis that the certificate really proves itself. It stands “until the contrary is shown”. The Sergeant’s evidence was certainly unnecessary and all he had to say was: “here is the certificate from the Bureau” and then give it up to the judge to read it. The question the judge poses is:-

“Having regard to the nature of the oral evidence which was given by the prosecuting officer (Sergeant Tracey) and its conflict with the certificate issue by the Medical Bureau of Road Safety and the background to this prosecution, was I correct in exercising my judicial discretion in dismissing the charges against the accused?”

5. I would answer the question by saying that there was no conflict in the case and that he should have received the certificate in accordance with the provisions of s. 2 1(3) of the Act.

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6. I would therefore remit the case to him with an order that continuances should be entered and the hearing of the case take its course. I would reverse the judgment and order of the High Court.