Conlin v Patterson

• Jurisdiction: Ireland
• Judgment Date: 25 February 1915
• Date: 25 February 1915
• Court: King's Bench Division (Ireland)

Conlin,

Appellant

and

Patterson,

Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1915.

Justices — Jurisdiction — Certiorari — Conviction quashed — Accused again charged with Same Offence — Res Judicata — Maxim, “Nemo debet bis vexari pro eadem causa” — Right of Unsuccessful Prosecutor to have a Case Stated.

Where a conviction by justices is quashed on certiorari on the ground that it is bad on its face by reason of the sentence pronounced being one which the justices had no jurisdiction to award, the case is to be treated as if the conviction had not been made. The accused may be put on trial again on the same charge, and he cannot successfully avail himself of the objection of autrefois convict or autrefois acquit, either of which must have for its basis an adjudication in fact within jurisdiction.

P. was convicted by justices at petty sessions of an offence within their summary jurisdiction, and ordered to pay a fine of £10, and, in default, to be imprisoned for three months unless the fine should be sooner paid. The conviction was quashed on certiorari on the ground that an order of imprisonment had been made without ordering first a distress. P. was subsequently prosecuted before the justices for the same offence, when the justices, being of opinion that the matter was res judicata, dismissed the summons, but stated a case for the opinion of the Court as to whether they were right in law in so doing.

Held, that the justices were not right in law, and that the matter should be remitted to them to proceed according to law.

Case stated by justices under 20 & 21 Vict. c. 43.

At a petty sessions held at Omagh on the 4th January, 1915, the appellant, a district inspector of police, charged the respondent, a second-hand clothes dealer, that on divers dates between the 5th August, 1914, and the 8th October, 1914, he did unlawfully buy, detain, or receive from soldiers, or other persons acting on their behalf, various articles of military clothing, and a blanket, the property of His Majesty's Government, contrary to the provisions of the Army Act, 1881 (44 & 45 Vict. c. 58), s. 156. It was admitted that the present proceedings were brought in respect of an offence which was the subject of

investigation before the justices on the 12th October, 1914, and in respect of which they convicted the defendant. The order of conviction was in the following terms:— “Defendant duly convicted and ordered to pay for fine the sum of £10, and for costs the sum of 1s. 6d. forthwith, and in default of payment to be imprisoned in Londonderry jail for the period of three calendar months, unless said sums be sooner paid.”

The defendant moved for a writ of certiorari to remove this conviction into the King's Bench Division for the purpose of being quashed, and the conviction was quashed by the King's Bench Division on November 16th, 1914, on the ground that the order of imprisonment was made without ordering a distress of the defendants goods in default of payment of the fine, or setting out on the face of the order grounds which would have justified a distress being dispensed with. See Rex (Patterson) v. Justices of Tyrone (1).

The justices were of opinion that, having regard to the former conviction and the order quashing same, the contention of the defendant, namely, that the matter was res judicata, was correct, and upon that ground they dismissed the summons. They did not, under the circumstances, consider it necessary to take evidence. The justices stated the present case on the application of the complainant, who was dissatisfied with their determination, and the opinion of the Court was sought as to whether they were right in law in so dismissing the summons.

The Solicitor-General (O'Connor K.C.) (with him Rearden) for the appellant:—

The doctrine Nemo debet bis vexari pro una et eadem causa, upon which the defendant relies, has no application to the case. That doctrine is a common law doctrine founded upon natural justice, and its application is the same in summary cases as in indictable cases: Wemyss v. Hopkins (2); R. v. Marsham (3). The phrase “in peril” is apt to lead to confusion, because, as used in relation to this doctrine, it cannot be taken literally. If taken literally, it would mean that any person who is properly charged before a Court upon a charge with which the Court is competent

to deal, would be able to plead autrefois acquit, or autrefois convict, whatever the result of the proceedings; and this is obviously not so, e.g., take the case of a disagreement of a jury, or a bench of magistrates being equally divided. In order to sustain the plea there must be a judgment of the Court: Burgess v. Boetefeur (1). If a judgment of acquittal be relied upon, it must be a judgment of acquittal by a Court competent to decide the case upon the merits: The King v. Taylor (2); Eussell on Crimes, 7th ed., p. 1983. If a judgment of conviction, it must be a conviction which is capable of being enforced, or which at any rate stands unreversed. The plea autrefois convict relies not alone upon the fact of conviction, but that the conviction stands valid and unreversed: Archbold, 20th ed., p. 153. The law, in the case of indictments, is perfectly settled. If a defendant is convicted, and the judgment is wrong and therefore cannot be enforced, and the conviction is subsequently set aside upon a writ of error, the defendant can be again charged with the same offence: R. v. Drury (3); see also Vaux'sCase (4). This question has always been treated, in the case of indictments, as settled. (See 2nd Hale P.C., ch. xxxii, pp. 243, 248, 251; 2nd Hawk P.C., ch. ii, c. 36, c. 50, s. 18; Hayes's Criminal Law, p. 237; Gabbett's Criminal Law, pp. 579, 580; Russell on Crimes, 7th ed., p. 1982, et seq.) A fortiori, if a magistrate's conviction is quashed upon certiorari the prisoner can be again impleaded. The conviction which is bad upon its face is absolutely void, and, apart from statute, affords no protection whatever to a person acting under it: Newman v. Bendyshe (5); Griffith v. Harries (6). The effect of quashing a conviction upon certiorari is to wipe out all evidence of the...