Attorney General (O Maonaigh) v Fitzgerald. Attorney General (McElwain) v.Power. Attorney General (Ward) v Thornton

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 15 November 1964
• Date: 15 November 1964
• Docket Number: (1963. No. 1 S. S.)

Supreme Court.

(1963. No. 1 S. S.)

(1963. No. 41 S. S.)

(1963. No. 19 S. S.)

The Attorney General (O Maonaigh) v. Fitzgerald. The Attorney General (McElwain) v. Power. The Attorney General (Ward) v. Thornton.

THE ATTORNEY GENERAL (at the Prosecution of Superintendent O MAONAIGH), Complainant and Respondent

and

PATRICK FITZGERALD, Defendant and Appellant

The Attorney General (O Maonaigh) v. Fitzgerald. The Attorney General (McElwain) v. Power. The Attorney General (Ward) v. Thornton.

THE ATTORNEY GENERAL (at the Prosecution of Superintendent E. M. McELWAIN), Complainant and Respondent

and

RONALD POWER, Defendant and Appellant

The Attorney General (O Maonaigh) v. Fitzgerald. The Attorney General (McElwain) v. Power. The Attorney General (Ward) v. Thornton.

THE ATTORNEY GENERAL (at the Prosecution of Superintendent JOSEPH WARD), Complainant and Respondent

and

JOHN THORNTON, Defendant and Appellant

Criminal law - Road traffic - Acquittal, by direction of trial judge, of charge of dangerous driving causing serious bodily harm - Insufficiency of evidence of serious bodily harm-Subsequent summons for dangerous driving based on same facts - Dismissal of summons by District Justice - Autrefois acquit -Number of offences created by section - Construction of section - Road Traffic Act, 1961 (No. 24 of 1961) s. 53, sub-s. 1; sub-s. 2, (a) and (b).

Criminal law - Road traffic - Informations received on charges of dangerous driving and dangerous driving causing serious bodily harm - Charge of careless driving arising out of same facts adjourned by District Justice - Verdict of not guilty returned by direction of trial judge on grounds of insufficiency of evidence of dangerous driving - Jury not invited by trial judge to consider careless driving - Subsequent dismissal by District Justice of charge of careless driving - Validity - Road Traffic Act, 1961 (No. 24 of1961), s. 52; s. 53, sub-s. 1; sub-s. 2, (a) and (b); sub-s. 4.

Criminal law - Road traffic - Summonses - Charge of dangerous driving causing serious bodily harm - Charge of dangerous driving simpliciter arising out of same circumstances - Plea of guilty to summary offence - Jurisdiction of Court to adjourn summary proceedings pending determination of proceedings for the indictable offence - Road Traffic Act, 1961 (No. 24 of 1961), s. 53sub-s. 1; sub-s. 2, (a) and (b).

Attorney General (O Maonaigh) v. Fitzgerald.

Case Stated by John R. Coghlan, a Justice of the District Court, District No. 22, District Court Area of Kilkenny, pursuant to the Summary Jurisdiction Act, 1857, as extended by the Courts (Supplemental Provisions) Act, 1961, at the request of the complainant, for the opinion of the High Court on the determination by the said Justice after the hearing by him on the 28th June, 1962, of a complaint that the defendant drove a car at a speed and in a manner contrary to s. 53, sub-ss. 1 and 2 (a), of the Road Traffic Act, 1961.

The Case Stated was as follows:

"1. This was a complaint by the Attorney General at the prosecution of Superintendent S. Ó Maonaigh ó maonaigh, Superintendent of the Gárda Siochána at Kilkenny (hereinafter called 'the appellant'), against Patrick Fitzgerald (hereinafter called 'the respondent') 'that you the respondent on the 9th day of October, 1961, at Raheenapisha also known as Rathmore County Kilkenny, a public place within the Court Area and District aforesaid, did drive a vehicle, to wit, motor car, registration no. WHI 546 (i) at a speed (ii) in a manner which having regard to all the circumstances of the case (including the nature, condition and use of such place and the amount of the traffic which then actually was or might reasonably be expected then to have been in such place) was dangerous to the public contrary to s. 53, sub-s. 1, of the Road Traffic Act, 1961, and of the provisions of sub-s. 2(b) of s. 53 of the Road Traffic Act, 1961."

"2. Mr. Edward W. Hughes, State Solicitor for County Kilkenny, representing the Attorney General, outlined briefly the facts which would be proved in evidence to support the prosecution case, and, before the calling of any witnesses, Mr. F. Morris, of counsel for the respondent, instructed by Messrs. Henry Shannon and Co., Solicitors, Clonmel, Co. Tipperary, made the following submissions:—

(a) That the respondent was previously charged with an offence under s. 53, sub-s. 2(a), of the Road Traffic Act, 1961;

(b) That at the sitting of the Circuit Court for the County of Kilkenny held on the 20th day of February, 1962, the respondent was found 'not guilty' of the said charge;

(c) That the facts upon which the prosecution will rely to support the alleged offence under s. 53, sub-s. (2) (b), are exactly similar to the facts tendered in the Circuit Criminal Court to support the charge on which the respondent was found 'not guilty.'

(d) That there is only one offence created by s. 53, which establishes a course of conduct, and sub-s. 2 does nothing more than prescribe a penalty; therefore, the plea of autrefois acquit lies as if the respondent had been before the Court previously, for the same offence when he was found 'not guilty.'

Mr. Morris then asked permission from the Court to call to the witness stand Mr. Thomas G. Crotty, County Registrar for the County of Kilkenny, which application I granted and, when sworn, Mr. Crotty produced the Criminal Trial Record Book of the Circuit Criminal Court for the County of Kilkenny on the 20th February, 1962. I read the entry for that date, signed by the foreman of the jury, Mr. M. Butler, as follows:—'Ordered by direction of the Judge—Jury find the accused not guilty.' Mr. Crotty explained that the jury foreman normally signed the issue paper, but this procedure could not be followed on this occasion as there was not then time within which to have the issue paper available. It was stated by Mr. Morris that the prosecution had failed because of the evidence of a Dr. Power that the injuries were not serious, but I was not prepared to take judicial notice of that.

Mr. Morris cited R. v. Beattie(1).

3. I then asked Mr. Hughes, State Solicitor, for the appellant, if he had any comments to make on the submissions made by Mr. Morris. Mr. Hughes agreed that the respondent was previously charged as outlined at paragraph 2 (a) hereof and that he was found not guilty as stated at para. 2 (b) hereof and further that the facts now relied upon were similar, save that no medical evidence would now be tendered since 'bodily harm' was not now in issue. Otherwise he agreed with para. 2 (c) hereof. He denied that the plea, autrefois acquit, now lay for the following reasons:—1, that the true test in determining if the plea, 'autrefois acquit,' applied is not whether the facts relied upon are the same, but rather whether the accused could have been convicted on the first indictment of the offence of which he is now charged;

2, That the only offence open to the jury to convict other than that with which the respondent was charged was an offence under s. 52, and, therefore, the respondent had not been in peril for the offence with which he is now charged;

3, That notwithstanding the wording of s. 53, this particular section must be construed as creating two offences; the analogy being the situation prevailing prior to the passage of

the Road Traffic Act, 1961, where, if a person is charged with manslaughter and found 'not guilty' this verdict was no bar to summary proceedings for dangerous driving. References cited by Mr. Hughes in support were Archbold's Criminal Pleadings, 33rd ed., at pp. 150 to 158; Halsbury's Laws of England, 1st ed., 1909, vol. 9, para. 692 and notes.

4. Whereas I, the said Justice, being of opinion that there is only one offence established by s. 53, and on the facts, the respondent had been sent for trial on a charge of dangerous driving which is the same as the offence of which he is now charged, and on that trial the Judge thought the facts did not support such a charge, I therefore held the respondent was in peril again and I dismissed the charge.

The question upon which the opinion of the High Court is desired is whether I the said Justice upon the above statement of facts came to a correct decision in point of law in dismissing the said complaint, and, if not, what should be done in the premises?"

The Case Stated was dated the 3rd January, 1963, and was signed by the said District Justice.

From the above judgment, the defendant appealed to the Supreme Court (1).

The Case Stated was signed by the said District Justice and was dated the 26th April, 1963.

From the above judgment the defendant appealed to the Supreme Court (1).

The Case Stated was signed by the said District Justice and was dated the 13th February, 1963.

From the above judgment the defendant appealed to the Supreme Court (1).

F. had been acquitted, by direction of the Circuit Court judge, on a charge of dangerous driving causing serious bodily harm, under s. 53, sub-ss. 1 and 2 (a), of the Road Traffic Act, 1961, on the grounds that the evidence did not establish serious bodily harm. Subsequently, F. was brought before a District Justice on a summons charging him with dangerous driving contrary to s. 53, sub-ss. 1 and 2 (b), of the said Act, which summary proceedings arose out of the same circumstances as the indictable proceedings. The District Justice dismissed the charge, he being of opinion that one offence was established by the section and that F. had already been tried and acquitted on the charge which was a bar to the proceedings before him. The District Justice stated a case for the opinion of the High Court. The President of the High Court allowed the appeal, holding that the District Justice was wrong in point of law in dismissing the summons and the case was remitted to him to enter continuances. On appeal by F. to the Supreme Court, it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery and Walsh JJ.)...