Attorney General v Casey

• Jurisdiction: Ireland
• Judgment Date: 21 December 1930
• Date: 21 December 1930
• Court: Supreme Court (Irish Free State)

Attorney-General v. Casey.

THE ATTORNEY-GENERAL

Informant

and

JAMES CASEY, Defendant (1)

Supreme Court.

Practice - Revenue - Information for penalties - Fraudulent concealment in neglecting or omitting to set out income - Right to trial by jury - Necessity or desirability of jury - Appeal from discretionary order -"Action for a liquidated sum" - "Offence" - Courts of Justice Act,1924 (No. 10 of 1924), sect. 94 - Courts of Justice Act, 1928 (No. 15of 1928), sect. 20 - Income Tax Act, 1918 (8 & 9 Geo. 5, c. 40),sects. 30, 227.

The Attorney-General, on behalf of the Minister for Finance, sued the defendant, under sect. 30, sub-sect. 1, of the Income Tax Act, 1918, for two sums, consisting in each case of £20 and treble the income tax chargeable in respect of all sources of income for each of two years of assessment. The information claimed that these gums were forfeited to the Minister for Finance by reason of the fact that, in making a claim for an allowance or deduction in respect of his liability to income tax, the defendant, in each of the two years of assessment, did fraudulently conceal part of his income for that year in that he neglected or omitted to set out his income from a certain source. The defendant pleaded that he was not guilty, and put himself upon his country. He denied fraudulent concealment, and alleged that the amounts claimed were excessive. The plenary summons was not indorsed with the words "non-jury," but the informant served notice of trial of the action by a Judge without a jury. The defendant, by motion on notice, subsequently applied for an order that the action be tried by a Judge with a jury, but the application was refused by O'Byrne J. On appeal:

Held, that the proceeding was "an action for a liquidated sum" within sect. 94, Courts of Justice Act, 1924, and consequently the defendant was not entitled to a jury as of right.

Held, further (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting), that the allegation of fraud did not, in the circumstances of the case, render a jury "necessary or desirable" within that section as amended by sect. 20, Courts of Justice Act, 1928.

Per Kennedy C.J.:—The proceeding for recovering a penalty under a statute by way of information of debt (and its present equivalent) is not in its nature a criminal proceeding, but a civil proceeding. But the statute which imposes the penalty may make the person who is liable to the penalty also amenable to the criminal law by indictment or otherwise in respect of the same facts as subject him to the penalty. In such a case the Judge should, in exercising his discretion as to directing whether the trial of the information of debt should be had with a jury or not, take into consideration on the question of "desirability" under the section the liability of the defendant to be tried in a criminal Court on the same facts.

Per FitzGibbon J.:—When the criminal offence itself could be proved and punished without the assistance of a jury, a jury was not necessary or desirable in a civil proceeding to recover the liquidated statutory debt, unless there should happen to be some very exceptional circumstances to take the proceeding out of the course prescribed by the Courts of Justice Act as normal for the recovery of a liquidated sum.

Appeal by the defendant from an order of O'Byrne J., refusing an application by the defendant for an order that the action be tried by a Judge and jury.

The facts and pleadings in the case have been summarised in the head-note, and are set out in the judgment of Kennedy C.J.

Cur. adv. vult.

Kennedy C.J. :—

This is a proceeding commenced by way of plenary originating summons and information by the Attorney-General, on behalf of the Minister for Finance. The claim endorsed on the plenary summons is for the forfeiture by the defendant of £183 19s., for penalties under the statutes relating to the revenue of income tax, to wit, under sub-sect. 1 of sect. 30 of the Income Tax Act, 1918, and for costs.

It is stated in the information filed by the Attorney-General that the defendant, James Casey, "on or about the 13th day of May in the year of our Lord one thousand nine hundred and twenty-five, in making a claim for an allowance or deduction in respect of his liability to Income Tax for the year ending 5th April, 1924, did fraudulently conceal part of his income for that year in that he neglected or omitted to set out his income from a sum of five per cent. War Loan, 1929-1947, inscribed in his name in the books of the Bank of Ireland during the said year, contrary to the Statutes in that case made and provided, whereby and by force of which the said James Casey has forfeited to, and is indebted to the Minister for Finance for the benefit of the Central Fund in, the sum of £86 19s. 6d., being the sum of twenty pounds and treble the income tax chargeable on all sources of income of the said James Casey for the year ending 5th April, 1924."

It is further stated in the information that the said James Casey "on or about the 13th day of May in the year of our Lord one thousand nine hundred and twenty-five, in making a claim for an allowance or deduction in respect of his liability to Income Tax for the year ending 5th April, 1925, did fraudulently conceal part of his income for that year in that he neglected or omitted to set out his income from a sum of five per cent. War Loan, 1929-1947, inscribed in his hame in the books of the Bank of Ireland during the said year, contrary to the Statutes in that case made and provided, whereby and by force of which the said James Casey has forfeited to, and is indebted to the Minister for Finance for the benefit of the Central Fund in, the further sum of £96 19s. 6d., being the sum of twenty pounds and treble the Income Tax chargeable in respect of all sources of income of the said James Casey for the year ending 5th April, 1925"; and the Attorney-General prayed that the said sums, amounting in all to the sum of £183 19s., be adjudged to the Minister for Finance for the benefit of the Central Fund.

The defendant filed an answer on the 27th October, 1928, and in the first paragraph thereof pleaded that "he is not guilty, and of this the defendant puts himself upon the country." He further denies that he fraudulently concealed part of his income for the years mentioned, as alleged in the information; and he alleges that the amounts claimed as treble income tax are excessive, and he relies upon the returns of his income furnished prior to the institution of the proceedings.

The plenary summons by which the proceedings were instituted, in lieu of a subpoena, was not endorsed under Order IV, Rule 1, of the Rules of the High Court and Supreme Court of 1926, with a note to the effect that the case was a "non-jury"one; but on the 7th of June, 1929, the informant served on the defendant notice of trial of the action by a Judge without a jury. On the 18th of October, 1929, counsel for the defendant moved the High Court, pursuant to a notice, dated the 12th June, 1929, for an order directing that the action be tried by a Judge with a jury. The motion was grounded upon an affidavit made by the defendant's solicitor, in which he stated that the returns of income furnished by the defendant for the years in question were prepared by him, the solicitor, and that "there was no fraud of any kind in connection with the said returns."The application came before Mr. Justice O'Byrne, and was refused with costs. It is from this order that the present appeal is taken.

The first contention advanced for the defendant was that he is entitled to a jury as of right, apart from the Courts of Justice Act, 1924. This contention depends upon the right to a jury according to the old practice with regard to informations, as modified by the Judicature Act (Ireland), 1877, and the rules made thereunder. The Court would be in a difficulty if it were necessary to determine that question, because the matter offered in argument was of the most tenuous description, and did not lead to anything. This type of information, known as the Latin Information or Information at Law, was, we may take it, when heard on oral testimony usually tried before a Judge and a special jury. But whether either party could have a jury as of right has not been established one way or the other by the argument on either side before us.

Assuming that the defendant could formerly have required the case to be tried by a jury as of right, the next question is whether such right, if it existed, has survived sect. 94 of the Court of Justice Act, 1924 (No. 10 of 1924). The determination of that question depends upon the question whether a proceeding by way of information of this kind is an action for a liquidated sum. For the defendant it has been argued that it is neither an "action" nor an "action for a liquidated sum" within the section of the Courts of Justice Act. This argument is quite untenable. The proceedings are properly described as an"action." Rule 1 of Order I of the Rules of the Supreme Court, 1905, provides (inter alia) that "all suits which, previously to the commencement of the principal Act, were commenced . . . by information in the Court of Exchequer in Ireland . . . shall be instituted in the High Court by a proceeding to be called an action." Order LXVIII, Rule 3, of the same Rules of the Supreme Court applies the rules therein set out to "any action or suit which, previously to the commencement of the principal Act, might have been commenced by information in the Court of Exchequer in Ireland," and provides that the words "Writ of Summons" shall include "Writ of subpoena for the commencement of an action," and the words "Statement of Claim"shall include "information." (Order XXXVI of our Rules of 1926 substitutes an originating summons for a writ of subpoena for the commencement of an action in revenue cases.) The following sentence occurs on p. 252 of Howard's "Treatise...