O Floinn, The State (Cunningham) v District Justice

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1961
• Date: 01 January 1961

The State (Cunningham) v. District Justice Ó Floinn.

THE STATE (At the Prosecution of JOHN CUNNINGHAM)

and

DISTRICT JUSTICE CATHAL Ó FLOINN, One of the Justices of the ó floinnoneMetropolitan District Court

Supreme Court.

District Court - Convictions - Prosecutor charged with offences under Road Traffic Act, 1933 - No reference in charge sheet to appropriate sections of Act or to the fact that offences were statutory offences - Entry of convictions on charge sheet made by reference to the number of the offence on charge sheet - Certified copies orders of convictions setting out charges as stated in charge sheet with addition of words, "contrary to s. 51 of the Road Traffic Act, 1933," and "contrary to the form of the statute in such case made and provided" - Whether summary conviction for offence created by statute must refer to statute or disclose that offence is a statutory offence by use of the formula, "contrary to the statute in such case made and provided" - Allegation by prosecutor that entry of sentence in charge sheet and order different from that pronounced in open Court - Certiorari - Dublin Police Act, 1842 (5 & 6 Vict., c. 24), s. 72 - Road Traffic Act,1933 (No. 11 of 1933), ss. 30, 51 - Criminal Justice Act, 1951 (No. 2 of1951), s. 21 - District Court Rules, 1948 (S. R. & O., 1947, No. 431),rr. 84, 85, as amended by District Court Rules, 1955 (S. I., 1955, No. 83),rr. 9, 10.

J. C. was charged on charge sheet No. 68 as follows: 1. "That you . . . did . . . while drunk, drive a mechanically propelled vehicle . . ." 2. "Did between the times on the date at the place set out in charge No. 1 drive . . .(a) at a speed and (b) in a manner which . . . was dangerous to the public."3. "Did between the times, on the date at the place set out in charge No. 1 drive . . . without having the several lamps required by Part X of the Road Traffic Act, 1933, then duly lit . . ." 4. (entered on charge sheet No. 91) "For that you . . . did . . . fail to give on demand the appropriate information as defined by sec. 173 of the Road Traffic Act, 1933, to . . . members of the Garda Siochana." The charges were heard in the District Court by the respondent who convicted on charges 1, 2 (b) and 4 and dismissed charges 2 (a) and 3. The decision to convict, as entered on the charge sheet, was, in respect of each charge, "Proved, convicted and sentenced to . . .," each charge being referred to by its number in the charge sheet, and the entry comprising the respondent's decisions was signed by him. A certified copy of the order in respect of charge No. 1 set out the charge as stated in the charge sheet with the addition of the words, "contrary to the form of the statute in such case made and provided." A similar copy of the order in respect of charge No. 2 (b) also get out the charge as stated in the charge sheet with the addition of the words, "contrary to section 51 of the Road Traffic Act, 1933." In respect of charge No. 4, being the charge set out in charge sheet No. 91, the Justice's entry of conviction on the charge sheet and a certified copy of the order of conviction provided a sentence of a fine of one shilling and in default of payment of the said sum within seven days, imprisonment for seven days without hard labour. The prosecutor alleged that the said entry of the Justice's decision and the certified copy order differed from his decision as pronounced in open Court in as much as the decision as pronounced in open Court on the hearing of the charge did not impose any sentence of imprisonment in default of payment of the fine or otherwise. Notice of appeal was lodged but later was withdrawn, and, on the 12th June, 1959, J. C. obtained a conditional order of certiorari to send before the Court for the purpose of being quashed all records entries and orders of convictions in the matter on the grounds, inter alia, that the entries in the Justice's charge sheet and his orders in respect of charges Nos. 1 and 2 (b) in charge sheet No. 68 were bad in that they purported to convict the prosecutor of an offence created by statute which was not averred therein to be a statutory offence; that they did not comply with the requirements of the common law or the statute for the recording of a conviction; that the said entries did not comply with the provisions of s. 21 of the Criminal Justice Act, 1951, or the Rules of the District Court, 1955, r. 9, amending r. 84 of the Rules of the District Court, 1948, and that the orders contained a reference in the preliminary part thereof to the effect that a complaint had been made that the prosecutor, in respect of charge No. 1 was drunk "contrary to the form of the statute in such cage made and provided" which did not form part of the charge or of the conviction or part of the entry in the charge sheet, and, in respect of charge No. 2 (b), that the driving of the prosecutor was dangerous to the public "contrary to section 51 of the Road Traffic Act, 1933," which did not form part of the charge or of the decision or part of the entry in the charge sheet. On the hearing of the application to make absolute the conditional order of certiorari, cause was shown by the respondent which was allowed, and the conditional order was discharged. From this decision J. C. appealed to the Supreme Court.

Held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore, O'Daly and Maguire JJ.) that the appeal in respect of two of the three charges on which convictions were entered up, viz. charges Nos. 1 and 2 (b), should be allowed and in respect of these charges the cause shown should be disallowed and the conditional order of certiorari made absolute. In respect of charge No. 4 the order Of the President of the High Court was confirmed.

Per O'Daly J., with whose judgment the other members of the Court agreed:". . . it is an essential ingredient of a valid summary conviction for an offence created by statute that the conviction should state that the offence was statutory, at least by using the formula, 'contrary to the statute in such case made and provided'; and I must now return to the scope of s. 72 of the Dublin Police Act, 1842. . . . I see in the enactment of these provisions in 1851 [the Petty Sessions (Ir.) Act, 1851, ss. 21, 36] for the Petty Sessions area a reason for examining closely the last limb of s. 72 [of the Dublin Police Act, 1842] to see if indeed it says that in the Dublin Metropolitan District the common law rule that a conviction for an offence created by statute need not show jurisdiction by stating the offence to be statutory. . . . I am satisfied it does not purport to revoke the rule of law which the appellant asserts. What then is the subject-matter on which the section operates? This and no more: the sufficiency of statement, or description, of the offence. . . . The purpose of s. 72 was, in my opinion, . . . to allow a complainant, with full safety, to state his charge in the words of the statute. . . . I would say that s. 72 of the Dublin Police Act, 1842, cannot be supposed to have been intended to break down the very important rule . . . that a conviction for an offence created by statute must show that the offence is statutory."

The State (Taylor) v. Circuit Court Judge of Wicklow and Others [1951] I. R. 311, and The State (Quinn) v. Mangan[1945] I. R. 532 considered.

Certiorari.

Application by John Cunningham to the High Court (Davitt P.) to make absolute a conditional order of certiorari granted by Murnaghan J. to send before the Court for the purpose of being quashed three convictions against the prosecutor entered up on the 2nd June, 1959, in respect of alleged offences under the Road Traffic Act, 1933.

The facts appear sufficiently in the head-note and in the judgment of O'Daly, J., post.

From the above judgment the prosecutor appealed to the Supreme Court (1).

Cur. adv. vult.

Davitt P. :—

The prosecutor was charged in the Dublin District Court with (1) driving a motor vehicle while drunk; (2) driving(a) at a speed, and (b) in a manner dangerous to the public; (3) driving it without proper lights after lighting up time; and (4) failing on demand, after an accident in which two persons were injured, to give to the Guards the appropriate information as defined by s. 173 of the Road Traffic Act, 1933. The charges were heard on the 2nd June last by the respondent, one of the Metropolitan Justices, who convicted upon charges Nos. 1 and 2 (b), dismissed charge No. 2 (a),and convicted on charge No. 4. He appears to have made no adjudication on charge No. 3. On each of charges Nos. 1 and 2 (b) he sentenced the prosecutor to six weeks' imprisonment and declared him to be disqualified from holding a driving licence for a period of twelve months from the 2nd June. On charge No. 4 he fined him one shilling, or 7 days' imprisonment in default.

The charges are all offences against the Road Traffic Act, 1933, but as entered on the charge sheet, charges Nos. 1 and 2 (a) contained no reference to the appropriate sections of the Act, or to the Act at all, or to the fact that they were statutory offences. The decision of the respondent to convict on these charges, as entered in the charge sheet, was in each case merely:—"Proved, convicted and sentenced,"etc. Each of charges Nos. 1, 2 (a) and 2 (b) was referred to by its number; and the entry comprising the respondent's decision on the three charges was signed by him.

By s. 21 of the Criminal Justice Act, 1951, it is provided that the signed entry shall be taken to be the decision of the Court. That section also provides that when required, an order shall be drawn up in accordance with the rules of Court, and that a copy of the order, certified in accordance with the rules, shall be prima facie evidence of the decision. These provisions of the section are produced and substituted for the original Rule 84 of the District Court Rules, 1948, by the Rules of 1955.

An order appears to have been...