Batchelor and Company (Ireland) Ltd v District Justice O Leannain

• Jurisdiction: Ireland
• Judgment Date: 31 March 1957
• Date: 31 March 1957
• Court: High Court

The State (Batchelor ‡ Co. (Ireland) Ltd.) v. Ó LeannÁin

THE STATE (at the Prosecution of BATCHELOR AND CO. (IRELAND) LTD.)

and

An Breitheamh MICHEÁL icheálÓ LEANNÁIN ó leannáin, one of the Justices Assigned to the Dublin Metropolitan District, and In the Matter of Three Orders of the District Court made by the said MicheÁl micheálÓ LeannÁin ó leannáin on the 12th Day of November, 1954, and In the Matter of the Courts of Justice Acts, 1924 to 1953

Criminal law - Indictment - Depositions - Accused a corporation - Alleged offences against s. 2, sub-s. 2, of Merchandise Marks Act, 1887 - Jurisdiction of District Court to make preliminary inquiry into such offences - Merchandise Marks Act, 1887 (50 & 51 Vict., c. 28), s. 2, sub-ss. 1, 2, 6; s. 3,sub-s. 1; s. 22 - Indictable Offences (Ireland) Act, 1849 (12 & 13 Vict., c. 69), ss. 1, 17, 18, 21, 23, 25 - District Court Rules, 1948 (Stat. R. & Ors.,1947, No. 431), rr. 55, 57.

Certiorari and Mandamus.

The prosecutors, Batchelor and Co. (Ireland), Ltd., were, on the 1st September, 1954, served with two summonses in which one, Maureen O'Carroll, was named as complainant, in which summonses it was alleged that on two occasions, on the 18th May and on the 30th July, 1954, at Cabra West, within the Dublin Metroplitan District, they had in their possession for sale goods, namely, a mixture of marrowfat and blue peas to which a false trade description, namely,"specially selected marrowfats," meaning marrowfat peas, had been applied, contrary to s. 2, sub-s. 2, of the Merchandise Marks Act, 1887, and that on the 18th May, 1954, also at Cabra West aforesaid, they had, also contrary to s. 2, sub-s. 2, of that Act, sold the goods to which the said false trade description had been applied. The summonses came before District Justice Ó Leannáin ó leannáin on the 15th October, 1954, when the prosecutors were represented by senior and junior counsel and solicitor. Depositions were taken on subsequent dates, and on the 12th November, 1954, the District Justice made three orders which, after referring to each of the three complaints previously specified, continued:—"I did adjudge that informations be received and defendant be committed for trial to next Dublin Circuit Criminal Court. Allow bail—Self in £100."

The prosecutors obtained in the High Court a conditional order of certiorari, dated the 16th November, 1954, directed to District Justice Ó Leannáin ó leannáin to bring before the Court for the purpose of being quashed the records of the three orders of the 12th November, 1954, on the grounds:—

"1, That each of the said three orders was made and pronounced by the said District Justice in the absence of the defendants and was accordingly void;

2, That each of the said three orders was made in excess of and without jurisdiction;

3, That each of the said three orders dated the 12th November, 1954, was made without and in excess of jurisdiction in that each of them purports to commit Batchelor and Co. (Ireland), Ltd., for trial and the said Batchelor and Co. (Ireland) Ltd., a company incorporated under the Companies Acts, cannot be committed for trial;

4, The said District Justice had no jurisdiction to make the said orders in that no depositions were taken in the presence and hearing of the defendants;

5, The provisions of the Indictable Offences Act, 1849, and the District Court Rules, 1948, were not complied with;

6, The said orders are meaningless and ineffective."

The District Justice moved to show cause against the conditional order being made absolute, and subsequently on the 6th December, 1954, in pursuance of the directions of the Attorney General, an indictment of the prosecutors on the three said charges was lodged in the office of the County Registrar at Green Street Courthouse, Dublin.

By notice of motion, dated the 4th January, 1955 the prosecutors moved, in the alternative to the making absolute of the conditional order of certiorari, for an absolute order or alternatively a conditional order that a rule in the nature of a mandamus should issue to the District Justice commanding him to state a case for the opinion of the High Court under the provisions of s. 83 of the Courts of Justice Act, 1924, on the question whether he had power to, or could validly, make an order for the committal for trial on indictment of the prosecutors; or for an absolute order, or alternatively a conditional order, that a rule in the nature of a mandamus should issue to the District Justice, requiring him to consider judicially the application made to him on behalf of the prosecutors that he should state a case pursuant to the said section for the opinion of the High Court on the said question, and for other consequential relief.

The respondent, a Justice of the Dublin Metropolitan District, made three orders purporting to commit the prosecutors, a limited company, for trial on bail on indictment in respect of three charges of offences against s. 2, sub-s. 2, of the Merchandise Marks Act, 1887, alleged to have been committed in that District. The respondent made such orders on foot of depositions taken. On an application to make absolute a conditional order of certiorari, directed to the respondent, to bring the said orders before the High Court for the purpose of being quashed, it was

Held that a District Justice in the Dublin Metropolitan District derives his jurisdiction to take depositions in the case of an indictable offence from s. 17 of the Indictable Offences Act, 1849, which provides for the examination of prosecution witnesses "in the presence of such accused person," and for the acceptance of the evidence on deposition of witnesses who had died before the trial of the indictment provided only that such deposition was taken "in the presence or hearing of the person so accused," and from s. 18 of the same Act which provides for the taking of a statement under caution from "the prisoner," and neither of these sections can be construed as relating to a corporation aggregate.

The said conditional order was accordingly made absolute.

Held further that where it is sought to prefer an indictment against a corporation, the District Justice has no jurisdiction to take depositions preliminary to such indictment and, consequently, no jurisdiction to return such corporation for trial.

Cur. adv. vult.

Murnaghan J. :—

The prosecutors, Batchelor and Co. (Ireland), Ltd., are a company incorporated in Ireland.

On the 21st September, 1954, two summonses, in which the above-named Maureen O'Carroll was named as complainant, and alleging the commission by the prosecutors of offences created by s. 2, sub-s. 1, of the Merchandise Marks Act, 1887, were served on the prosecutors. The prosecutors were by the said summonses required to appear as defendant, at the place, and time, therein stated, inter alia, to show cause why informations should not be received; and why the prosecutors should not be returned for trial on indictment, in respect of the several complaints therein respectively contained.

On the 15th October, 1954, the said two summonses, came before the above-named Micheál Ó Leannáin ó leannáin, one of the Justices assigned to the Dublin Metropolitan District (hereinafter called the District Justice), when the prosecutors were represented by senior and junior counsel and a solicitor.

Oral evidence on depositions was taken before the District Justice on the 15th, 19th and 29th October, and on the 2nd November, 1954, on the charges contained in the said summonses.

On the 12th November, 1954, the District Justice made three orders, in each of which, after specifying a particular complaint, he made an order in the terms following:—

"I did adjudge that informations be received and defendant be committed for trial to next Dublin Circuit Criminal Court. Allow bail—Self in £100."

On the 16th November, 1954, the prosecutors sought, and obtained, a conditional order of certiorari, directed to the District Justice, to bring before this Court the said three orders for the purpose of being quashed on the grounds:—

(a) that each of the said three orders was made and pronounced by the District Justice in the absence of the prosecutors and accordingly void;

(b) that each of the said three orders was made in excess of and without jurisdiction;

(c) that each of the said three orders was made without and in excess of jurisdiction in that each of them purported to commit the prosecutors for trial, whereas the prosecutors being a company incorporated under the Companies Acts could not be committed for trial;

(d) that the District Justice had no jurisdiction to make the said three orders, as no depositions were taken in the presence and hearing of the prosecutors;

(e) that the provisions of the Indictable Offences Act, 1849, and the District Court Rules, 1948, were not complied with;

(f) that the said orders were meaningless and ineffective.

The District Justice showed cause by affidavits, and the prosecutors now move for an order that the said conditional order of certiorari be made absolute notwithstanding the said cause shown.

The District Justice moves for leave to file an affidavit of Bernard Brady and to read and rely on the same in addition to the cause already shown. I received this affidavit de bene esse and it established that (a) the aforesaid depositions were before the Attorney General for his consideration and on the 6th December, 1954, he directed that an indictment should be lodged in the Circuit Court, and (b) in pursuance of the said direction an indictment was on the same day lodged in the office of the County Registrar at Green Street Courthouse.

The prosecutors move, by separate notice, for an absolute order, or alternatively, a conditional order that a rule in the nature of a mandamus should issue to the District Justice, commanding him to state a case for the opinion of this Court, under the provisions of s. 83 of the Courts of...