Attorney General v Mallen

• Jurisdiction: Ireland
• Judgment Date: 22 February 1957
• Date: 22 February 1957
• Court: Supreme Court

Supreme Court.

Attorney General v. Mallen.

The ATTORNEY GENERAL

Complainant

and

WILLIAM MALLEN, Defendant (1)

Criminal law - Conviction of offence under s. 51 of Road Traffic Act, 1933 - Dismissal of charge under s. 50 of same Act arising out of same facts - Appeal - Whether dismissal by District Justice of charge under s. 50 of said Act supports a plea of autrefois acquit to charge under s. 51 -Whether competent on appeal against conviction of offence under s. 51to make a plea in bar - Road Traffic Act, 1933 (No. 11 of 1933), ss. 50, 51.

Case Stated by the Circuit Court Judge for the County of Offaly (Judge Binchy), pursuant to s. 16 of the Courts of Justice Act, 1947.

The Case Stated was as follows:—

"1. This matter came before me sitting at Tullamore in the County of Offaly on the 19th day of February, 1952, on an appeal by way of re-hearing by William Mallen of Williamstown, Carbury, County Kildare (hereinafter referred to as the defendant), under the provisions of s. 18 of the Courts of Justice Act, 1928, as amended by s. 58 of the Courts of Justice Act, 1936. The said appeal was taken by the defendant against an order, dated the 8th day of January, 1952, made by the Justice for the District Court Area of Edenderry upon a complaint by Garda Superintendent C. Brady at the suit of the Attorney General

(hereinafter referred to as the complainant) that the defendant did, on the 23rd day of December, 1951, at Edenderry, a public place in the County of Offaly, drive motor oar ZC. 494 in a manner dangerous to the public contrary to s. 51 of the Road Traffic Act, 1933, by which order the said District Justice did adjudge that the defendant be convicted and ordered to be imprisoned for one month with hard labour and to pay £3 3s. 0d. expenses.

2. When this appeal came before me it appeared that the defendant had complied in all respects with the requirements of the Rules of the District Court in respect of appeals to the Circuit Court and in particular:

(a) The defendant had duly lodged the appropriate notice of appeal with the District Court Clerk for the said District Court area within seven days from the said 8th day of January, 1952, and had served within the said period, notice thereof upon the complainant as required by Rule 190 of the said Rules;

(b) The defendant had duly entered into the appropriate form of recognizance required by Rule 194 of the said Rules;

(c) The defendant had signed the appropriate form of appeal required by Rule 197 of the said Rules;

(d) In accordance with the requirements of the said Rule 197 the said form of appeal with certificate thereon duly signed by the Clerk for the said District Court area, together with a copy of the said conviction certified as required by Rule 85 of the said Rules, and the said notice of appeal with statutory declaration of service thereof, and the said form of recognizance, had been duly sent by the District Court Clerk to the County Registrar for the County of Offaly.

3. On the said 19th day of February, 1952, before commencing the hearing of the said appeal, counsel for the defendant submitted, by way of plea in bar, that on the said 8th day of January, 1952, the defendant had been lawfully acquitted by the said District Justice of an offence charged in the said District Court of driving the same motor car at the same place on the same occasion without exercising reasonable consideration for persons, vehicles and other traffic using that place contrary to s. 50 of the Road Traffic Act, 1933, and that by reason of the said acquittal the complainant should not prosecute further the said charge of an offence contrary to s. 51 of the Road Traffic Act, 1933. Issue was joined on behalf of the complainant on this plea and no evidence was heard by me or offered on the general issue of the said charge the subject of the said appeal or of the facts relative thereto.

4. Upon the trial of the issue of the defendant's plea of autrefois acquit the following facts were admitted:

(a) At Edenderry District Court held on the 8th day of January, 1952, the defendant was charged on summons with the following offences to which he pleaded 'Not guilty,' namely;—

1, Dangerous driving contrary to s. 51 of the Road Traffic Act, 1933.

2, Careless driving contrary to s. 50 of the Road Traffic Act, 1933;

3, Driving of defective vehicle contrary" to s. 52 of the Road Traffic Act, 1933;

4, Failing to stop after an accident contrary to s. 173 of the Road Traffic Act, 1933;

5, Driving without a driving licence contrary to s. 22, sub-s. 1, of the Road Traffic Act, 1933.

(b) The trial of the defendant on all charges proceeded with the hearing by the District Justice o£ all evidence relative to a collision between the defendant's motor oar ZC. 494 and a pedal cyclist, Patrick Forde, at Gilroy Avenue, Edenderry, County Offaly, on the 23rd day of December, 1951, and referable to all these offences charged. At the conclusion of the evidence the District Justice expressed the view that the evidence disclosed a bad case of dangerous driving and made the following orders in respect of the above offences:—

1, Convict. Sentence of one month imprisonment with hard labour. Order to pay £3 3s. 0d.. expenses.

3, Convict. Fine £1 0s. 0d.

4, Convict. Fine £1 0s. 0d.

5, Convict. Fine 10/-.

2, In respect of the offence charged under s. 50 of the Road Traffic Act, 1933, the District Justice ordered that it be marked, 'Dismissed,' and no evidence was adduced to show whether the order made on this summons was made in point of time before or after the order adjudging the defendant convicted of an offence under s. 51 of the said Act.

5. The following documents were produced" [and were annexed to and formed part of the Case Stated] "namely:—

(a) Copies of the several summonses charging the offences referred to in para. 4 (a) of this Case;

(b) Certified copies of the several orders made by the District Justice referred to in para. 4 (b) of this Case;

(c) The several documents referred to in para. 2 (...