Lohan v Fusco

JurisdictionIreland
Judgment Date01 January 1968
Date01 January 1968
CourtSupreme Court
Lohan v. Fusco.
MICHAEL LOHAN and Others
Complainants
and
CONSTANTINO FUSCO
Defendant.

Supreme

Licensing Acts - Licence - Conviction - Endorsement of conviction on licence - Whether wine retailer's on-licence amenable to endorsement - Intoxicating Liquor Act, 1927 (No. 15 of 1927), ss. 1, 2, 24, 25.

The provisions of s. 25, sub-s. 1, of the Intoxicating Liquor Act, 1927 (relating to the recording of convictions upon licences) apply to a wine retailer's on-licence.

So held by the Supreme Court.

Appeal from the High Court.

The defendant, Constantino Fusco, was the holder of a wine retailer's on-licence in respect of certain premises. He was convicted by the President of the District Court, District Justice Cathal O'Floinn, of the offence of permitting intoxicating liquor to be consumed on the premises during prohibited hours. The complainants sought to have the conviction recorded upon the defendant's licence pursuant to the provisions of s. 25, sub-s. 1, of the Intoxicating Liquor Act, 1927. The President of the District Court was not satisfied that the defendant's licence could be so endorsed and he declined to make such endorsement but, on the application of the complainants, he stated and signed a Case for the opinion of the High Court raising the question whether or not he was correct in point of law in refusing to record the conviction upon the defendant's licence. The President of the High Court (Davitt P.) upheld the decision of the President of the District Court and the complainants then appealed to the Supreme Court. The facts appear fully in the judgments of the Chief Justice and Mr. Justice FitzGerald,post.

The question raised by the Case Stated in these proceedings was also raised in a similar manner in the course of another District Court summons (Michael Francis, Complainant, v. Antonio Caffolla, Defendant) which was also brought on appeal before the Supreme Court. The judgments delivered in the Supreme Court, post, applied to both appeals.

Sect. 25, sub-s. 1, of the Intoxicating Liquor Act, 1927, provides inter alia:—"Whenever the holder of any licence for the sale of intoxicating liquor by retail is convicted of an offence to which this Part of this Act applies the conviction shall . . . be recorded on such licence . . ." Sect. 26 of the said Act provided that, where the holder of such licence was convicted of such offence, the District Justice had power to make an order stating circumstances which satisfied him that the offence was of a trivial nature and should not be recorded, and that, when such order was made, the conviction was not to be recorded. Sect. 14 of the Intoxicating Liquor Act, 1943, inserted the words "if the Court in its discretion so thinks proper" after the word "conviction"in the said s. 25, sub-s. 1, and also provided that no order should be made pursuant to the said s. 26 after the 14th April, 1943. Sect. 37 of the Intoxicating Liquor Act, 1960, deleted from the said s. 25, sub-s. 1, the words "if the Court in its direction so thinks proper" (which had been so inserted by s. 14 of the Act of 1943), and added a new subsection to the said s. 25 providing that first convictions were not to be recorded on licences.

The Case Stated was as follows:—

"1. This is a Case stated by me, a Justice of the District Court, sitting at the Metropolitan District Courthouse, Morgan Place, in the City of Dublin, pursuant to the Summary Jurisdiction Act, 1857 (20 and 21 Vict. c. 43), as extended by the Courts (Supplemental Provisions) Act, 1961, s. 51, on the applications in writing of the appellants, dated in each case the 18th January, 1965, who are dissatisfied respectively with my determinations as being erroneous in point of law, for the opinion of the High Court. [Copies of the applications were attached to the Cast Stated.]"

"2. There were four summonses charging the respondent with offences under the Intoxicating Liquor Acts, 1927 to 1962."

"3. The first summons (issued in the name of the appellant, Michael Lohan, as complainant) charged that on the 22nd March, 1964, the respondent, being the holder of a wine on-licence in respect of premises at Nos. 85/86, Middle Abbey Street, Dublin, did unlawfully:—"

"(i) sell intoxicating liquor;"

"(ii) open said premises for the sale of intoxicating liquor;"

"(iii) keep open said premises for the sale of intoxicating liquor;"

"(iv) expose intoxicating liquor for sale;"

"(v) permit intoxicating liquor to be consumed on the said premises"

"at a time prohibited for that purpose by the Licensing Acts, 1927 to 1962, namely, between the hours of 11.00 p.m. on the 21st March, 1964, and 1.10 a.m. in the forenoon of the above-mentioned day." [A copy of the summons was attached to the Case Stated.]

[The fourth, fifth and sixth paragraphs of the Case Stated recited the charges made against the defendant in the second, third and fourth summonses respectively, which charges were similar to those contained in the first summons but related to offences alleged to have been committed on the 5th July, the 19th July and the 12th September, 1964, respectively.]

"7. The facts, as proved, or admitted, were as follows:—"

"(i) The respondent was at all material times the holder of a wine retailer's on-licence within the meaning of the Finance (1909-10) Act, 1910, and of a restaurant certificate within the meaning of the Intoxicating Liquor Acts, 1927 to 1962, in respect of the premises, the "Sybaris Club,"Nos. 85/86, Middle Abbey Street, in the City of Dublin. The said premises were on the material dates owned and occupied by the respondent, who carried on a restaurant business therein."

"(ii) On the respective dates and times charged in each of the said four summonses, I was satisfied on the evidence and found as a fact in each case that during or after the consumption of a meal by customers in the said restaurant the respondent permitted intoxicating liquor, namely, wine, to be consumed by such customers in the said premises."

"8. Having heard the evidence adduced in support of the said charges, and the submissions made on behalf of the appellants and of the respondent, on the 6th January, 1965, I made the orders set forth in the next succeeding paragraphs 9, 10, 11 and 12 hereof."

"9. In respect of the charges set forth in para. 3 hereof I made the following orders:—"

"Charges (i), (ii), (iii), (iv)—Dismissed."

"Charge (v)—Defendant convicted and ordered to pay for fine the sum of £5 and in default of payment of said sum within seven clear days to be imprisoned for twenty-eight days without hard labour unless said sum be sooner paid."

"10. Immediately afterwards, in respect of the charges set forth in para. 4 hereof I made the following orders:—"

"Charges (i), (ii), (iii), (iv)—Dismissed."

"Charge (v)—Defendant convicted and ordered to pay for fine the sum of £10 and in default of payment of said sum within seven clear days to be imprisoned for twenty-eight days without hard labour unless said sum be sooner paid."

"11. Immediately afterwards, in respect of the charges set forth in para. 5 hereof I made the following orders:—"

"Charges (i), (ii), (iii), (iv)—Dismissed."

"Charge (v)—Defendant convicted and ordered to pay for fine the sum of £15 and in default of payment of said sum within seven clear days to be imprisoned for twenty-eight days without hard labour unless said sum be sooner paid."

"12. Immediately afterwards, in respect of the charges set forth in para. 6 hereof I made the following orders:—"

"Charges (i), (ii), (iii), (iv)—Dismissed."

"Charge (v)—Defendant convicted and ordered to pay for fine the sum of £20 and in default of payment of said sum within seven clear days to be imprisoned for twenty-eight days without hard labour unless said sum be sooner paid."

"13. In addition to the convictions set forth in paras, 9, 10, 11 and 12 hereof, the respondent was on the same date, namely, the 6th January, 1965, and some few minutes prior to the time of the said convictions, convicted of the following offence, namely, that the respondent, on the 18th March, 1964, at the premises Nos. 85/86, Middle Abbey Street, Dublin, being the holder of a wine on-licence in respect of the said premises did unlawfully permit intoxicating liquor to be consumed on the said premises at a time prohibited for that purpose by the Licensing Acts, 1927 to 1962, namely, between the hours of 10 p.m. on 17th March, 1964, and 1.55 a.m. in the forenoon of the above-mentioned day. [A copy of the summons wherein the said offence was charged was attached to the Case Stated.]"

"14. Mr. T. D. McLoughlin, Solicitor (Chief State Solicitor's Office), who appeared for the appellants, applied to me to have each of the said convictions set forth in paras. 9, 10, 11 and 12 hereof recorded under Part III of the Intoxicating Liquor Act, 1927 (as amended), on the said wine retailer's on-licence held by the respondent in respect of the said premises, on the ground that the respondent had previously been convicted of an offence or offences to which the said Part III applied."

"15. Mr. T. J. Conolly S.C. (instructed by Mr. B. P. McCormack, Solicitor) who appeared for the respondent, submitted that a conviction could not be recorded on a wine retailer's on-licence under the provisions of Part III of the said Act of 1927. He referred to the use of the expression"licence of any description for the sale of intoxicating liquor" in s. 7, sub-s. 3, of the Intoxicating Liquor Act, 1924, as being possibly wide enough to include a wine retailer's on-licence, but submitted that that section did not apply...

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3 cases
  • Carol Collins v Minister for Justice, Equality and Law Reform and Others
    • Ireland
    • Court of Appeal (Ireland)
    • 19 February 2015
    ...appeals were, in fact, entertained in cases where it was shown that the trial judge had erred in principle. Walsh J. then explained ( [1967] I.R. 11, 20-21): "It is unnecessary here to describe the growth of the appeal jurisdiction in respect of the non-appealable discretionary order, that......
  • State (Pheasantry) Ltd v Donnelly
    • Ireland
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    • 25 May 1982
    ...in respect of the premises or any part of the premises to which such licence was attached." 22 In the case of Cohan and Others -v- Fusco ( 1967 IR 11) it was decided that Section 28 of the Intoxicating Liquor Act 1927applies to wine retailers 23 Section 30 (1) of the Intoxicating Liquor Ac......
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    • Supreme Court
    • 30 July 1986
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