Attorney General (Fahy) v Bruen

CourtSupreme Court (Irish Free State)
Judgment Date20 October 1936
Docket Number(No. 11/55/36.)
Date20 October 1936

Supreme Court.

(No. 11/55/36.)
Attorney-General (Fahy) v. Bruen
ATTORNEY-GENERAL at the prosecution of SUPERINTENDENT FAHY, Complainant and Appellant
REDMOND J. BRUEN, Defendant and Respondent (1)

Practice - Procedure - Case stated under the Summary Jurisdiction Act, 1857 - Procedure continued in force by Courts of Justice Act, 1924 - Appeal from decision of High Court thereof - Appeal given by Art. 66 of the Constitution - Case stated under sect. 83 of the Courts of Justice Act,1924 - No appeal from decision of High Court thereon - Consultative case stated before determination by District Justice - Summary Jurisdiction Act, 1857 (20 & 21 Vict. c. 43), sect. 6 - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922, Sch. I, Art. 66 - Courts of Justice Act, 1924, sect. 83.

Application to the Supreme Court on behalf of the defendant for a direction to the Registrar of that Court that he do receive the notice of appeal by the defendant from the judgment and order of the High Court of Justice (Hanna J.), dated the 31st day of March, 1936, given and made upon the hearing of a case stated by the District Justice of the District Court Area of Sligo.

The Case Stated is set out infra. It was stated by District Justice Flattery "pursuant to 20 & 21 Vict. c. 43, and the Courts of Justice Act, 1924," for the opinion of the High Court of Justice at the instance of the complainant:—

"At a sitting of the District Court held at Sligo on the 25th day of October, 1935, complainant charged the defendant, who owns a licensed premises at Rosses Point, Sligo, that defendant did on the 19th day of August, 1935, at a time prohibited by law, and a period during which his licensed premises were required by law to be closed, to wit, at 12.15 a.m. on Monday the 19th day of August, 1935, unlawfully sell intoxicating liquors, on his licensed premises against the form of statute in such case made and provided. (Original summons attached.)

The facts as proved and admitted are as follows:— The defendant is owner of a seven-day licensed premises at Rosses Point, Co. Sligo, and for many years public dances have been held by him in a hall which forms part of his licensed premises but is structurally separated from the bar and tap-room. These dances are largely patronised by residents of Sligo town, over five miles distant, and a special bus runs to and from Sligo for the convenience of persons attending these dances.

At the time of the alleged offence, defendant had a dance hall licence entitling him to hold dances in his hall on Sundays/Mondays, and Wednesdays/Thursdays, from 9 p.m. to 2 a.m., and on Mondays, Tuesdays and Thursdays and Fridays from 8 p.m. to 12 midnight.

On the night of Sunday, August 18th last, Inspector Horan, Gárda Síochána, Sligo, visited defendant's hall (where a dance was in progress) at 10.30 p.m. and again about 11.45 p.m. About five minutes past twelve o'clock Inspector Horan saw over thirty men leave the dance hall. As they left they were handed pass-out checks. They went towards the defendant's bar and tap-room and were admitted to the bar through a side door. The pass-out checks were shown to defendant by these men as they passed through the side door. Inspector Horan took the names and addresses of all persons in the bar and tap-room. Alcoholic and non-alcoholic drinks had been served to them by an assistant of the defendant. The Inspector was satisfied that all persons in the bar and tap-room had pass-out checks and were bona fide travellers in so far as they resided over five miles from Rosses Point. All persons found in the bar and tap-room were duly summoned and charged that on the said date they were found on defendant's licensed premises during prohibited hours.

Mr. Lynch, State Solicitor, for the prosecution contended that although the persons found on the defendant's premises resided over five miles from Rosses Point, their main object in visiting Rosses Point was to obtain drink, and that they were not bona fide travellers: R. (Lock) v.Ryan(1).

Mr. Derham, solicitor for defendant, contended that, as no evidence had been produced by the prosecution that any of the persons found on the defendant's licensed premises had visited other licensed premises in Rosses Point that evening, nor had it even been suggested that any one of them was under the influence of drink, it was unreasonable to argue that their main object in travelling to Rosses Point was to drink, not to dance: Penn v. Alexander(2);Dames v. Bond(3); Sheasby v. Oldham(4); Copley v.Burton(5).

Defendant admitted that when dances are held in his hall on Sunday nights he has always supplied bona fidepatrons of his dance hall with refreshments in his licensed bar and tap-room after midnight. His right to do so has never before been questioned.

I find as facts—

(1) That in opening and keeping open the side door of his licensed premises defendant did so only in so far as was necessary to admit to his bar and tap-room bona fide travellers attending his dance hall and requiring refreshments.

(2) That defendant genuinely believed all persons so admitted by him to his bar and tap-room to be bona fidetravellers and took reasonable precautions before admitting them.

(3) That all persons so found in defendant's bar and tap-room visited Rosses Point and defendant's licensed premises in search of legitimate amusement, namely, dancing, and were bona fide travellers. I accordingly dismissed all the summonses on the merits.

And the opinion of the Court is sought as to whether were right in law in dismissing said complaint." The Case Stated was dated the 17th day of February, 1936.

The Case Stated was heard by Hanna J. on the 16th, 18th and 19th days of March, 1936, and judgment was reserved. On the 31st day of March, 1936, Hanna J. gave judgment (1), the material portion of his order being as follows:—"On reading the Case Stated, and the Court having determined the question of law arising in the said Case, it is ordered and adjudged that the District Justice was wrong in his determination aforesaid. And it is ordered that the matter of the Case Stated be remitted to the said District Justice to re-enter with the direction of the Court here to convict the said defendant on all the summonses."

The defendant, being desirous of appealing from this order of Hanna J., tendered to the Registrar of the Supreme Court a notice of appeal, but the Registrar refused to receive it, endorsing it as follows:—"Appeal tendered to me on the 17th April, 1936. Refused by me having regard to sect. 83 of the Courts of Justice Act" (2).

Following this ruling of the Registrar, the defendant applied to the Supreme Court for a direction to the Registrar to receive the said notice of appeal, and the Supreme Court on the 20th...

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