Attorney General v Simpson (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 09 May 1959
• Date: 09 May 1959
• Court: Supreme Court

Supreme Court.

Attorney General v. Simpson (No. 2).

THE ATTORNEY GENERAL

Complainant

and

ALAN SIMPSON, Defendant (No. 2) (1)

Case stated - Consultative case - Taking of deposition - Whether jurisdiction to state such Case - Indictable Offences (Ireland) Act, 1849 (12 & 13 Vict., c. 69), s. 25; Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict., c. 93),s. 14; Summary Proceeding (Jurisdiction) Act, 1857 (20 & 21 Vict., c. 43), s. 2; Courts of Justice Act, 1924 (No. 10 of 1924), ss. 77, 83; Courts of Justice Act, 1936 (No. 48 of 1936), s. 56; The District Court Rules, 1948 (S.I., No. 431 of 1947), r. 55.

Case Stated.

The proceedings came before the Supreme Court on appeal from the order of the High Court upon the hearing of the Case Stated. [The proceedings in the High Court are reported separately as Attorney General v. Simpson(2)]. At the commencement of the appeal, the Court raised the question whether a District Justice had any jurisdiction under s. 83 of the Courts of Justice Act, 1924, as amended by s. 56 of the Courts of Justice Act, 1936, to state a case for decision upon a matter arising before him upon the preliminary investigation of an indictable offence and allowed the defendant to amend his notice of appeal accordingly This fresh ground of appeal was then considered as a preliminary point.

A District Justice has jurisdiction under s. 83 of the Courts of Justice Act, 1924, as amended by s. 56 of the Courts of Justice Act, 1936, to state a case, only in cases which he is empowered to try and determine. This jurisdiction does not extend to the preliminary investigation of indictable offences.

So held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore and Maguire JJ., O'Daly J. dissenting).

Cur. adv. vult.

Maguire C.J. :—

I agree with the judgment about to be read by Mr. Justice Lavery.

Lavery J. :—

This appeal comes to this Court from the decision of the High Court on a Case Stated by District Justice Cathal

Ó Floinn ó floinn under s. 83 Courts of Justice Act, 1924, as amended by s. 56 of the Courts of Justice Act, 1936.

The matter before the District Justice was the preliminary investigation of three charges of indictable offences brought by the Attorney General against the defendant. In the course of the taking of the depositions counsel for the defendant proposed to ask a Garda Officer about instructions given him by his superiors. Counsel for the State claimed privilege for such instructions. The District Justice disallowed the claim; the officer then gave evidence of his instructions and his answer was recorded in the deposition.

Later, another Garda Officer was asked a similar question relating to instructions received by him. A similar claim of privilege was made and was again disallowed.

Counsel for the Attorney General asked for a case stated to the High Court for the determination of the validity of the claim and the Justice accordingly stated the Case which is now before the Court and adjourned the proceedings before him.

No objection to the jurisdiction of the District Justice to state the Case was taken either before him or in the High Court where the questions put in the Case were fully argued and answered.

This Court, however, thought that a question arose as to the jurisdiction to state a case in proceedings of this kind and asked counsel to argue as a preliminary matter. The Court has heard this argument. Mr. Hooper for the defendant now contends that the provisions of s. 83, as amended, do not apply where the case or proceedings before the District Justice is the preliminary investigation of an indictable offence or offences.

Mr. McGonigal and Mr. Walsh for the Attorney General support the jurisdiction as indeed they were bound to do as the Case had been asked for by the Attorney General. The District Court was established by the Courts of Justice Act, 1924. It was given a wide and varied jurisdiction which later Acts of the Oireachtas have greatly extended.

Sect. 77 provided—I summarise that the Court should have the following jurisdictions:—

I, all powers, jurisdictions and authorities which immediately before the 6th December, 1922, were vested by statute or otherwise in Justices or a Justice of the Peace sitting at Petty Sessions;

II, and also by way of addition a wide jurisdiction in enumerated civil cases where the sum involved was below a certain limit which has since been greatly raised:

III, in criminal cases where certain conditions set out are satisfied—broadly that the facts proved constitute a minor offence and the accused does not object to be tried summarily;

IV, in granting certificates for spirit and other licences in certain cases.

As regards categories II, III and IV the jurisdiction of the Justice is to hear and determine the issue between the parties—subject of course to appeal to the Circuit Court.

Many cases in respect of which jurisdiction falls under category I are also of this character. We are not concerned with these.

The jurisdiction which the Justice was exercising in the present case falls within this category but has a character of its own.

It is necessary to see what it is. The jurisdiction, as has been seen, derives from the jurisdiction of Justices of the Peace at Petty Sessions. It is a jurisdiction of ancient origin but it is unnecessary, having regard to the statutes under which it has been exercised in modern times, to deal elaborately with these origins. I content myself with a quotation from "The Justice of the Peace for Ireland: A Treatise on the Powers and Duties of Magistrates in Ireland, in cases of Summary Jurisdiction in the prosecution of Indictable Offences, and in Other Matters, by Constantine Molloy, Esq., one of Her Majesty's Counsel. published by Hodges, Figgis & Co., Grafton Street, publishers to the Honourable Society of King's Inns, in the year 1890," chap. IV, "The Examination," at p. 114. "The examination of the prosecutor is called 'the information. which is taken in order to lay a foundation for all the subsequent proceedings; or, in other words, for the purpose of creating such a probable ground of suspicion in the breast of the Justice that an offence within his cognisance and Jurisdiction has been committed, as will justify him in calling into action that authority with which he is invested for the detection of crime."

The Justice therefore does not try the crime alleged but merely calls into action the appropriate authority if of opinion the evidence is sufficient to justify this being done.

The learned author then proceeds to deal with the modern statutes under which this jurisdiction is exercised. The relevant statute in the country generally is the 14 and 15...