McCarthy v Murphy

JudgeMr. Justice Keane
Judgment Date01 January 1981
Neutral Citation1980 WJSC-HC 2617
CourtHigh Court
Date01 January 1981

1980 WJSC-HC 2617









Judgment of Mr. Justice Keanedelivered the 23rd day of October, 1980.


This is a consultative case stated by the President of the District Court arising out of the hearing by him of a summons brought by the complainant in which the defendant is charged with certain offences under the Licensing Acts, 1927 to 1962. The defendant was charged in the summons with six offences, i.e. that on the 14th July, 1979, at premises at 34/35; Upper Clanbrassil Street Dublin 8, being the holder of an ordinary public house licence in respect of the premises, he unlawfully:


(1) sold intoxicating liquor


(2) opened the premises for the solo of intoxicating liquor


(3) kept open the premises for the sale of intoxicating liquor


(4) exposed intoxicating liquor for sale


(5) permitted intoxicating liquor to be consumed on the said premises and


(6) permitted persons to be on the premises at a time prohibited for those purposes by the Acts, namely, between the hoursof 2.30 and 3.30 p.m.


Upon the hearing of the summon the complainant gave evidence that the defendant was at all material times the holder of an intoxicating liquor licence in respect of certain promises at Upper Clanbrassil Street as nominee of Cooper and Murphy Limited and that on the 14th July, 1979 at 3.05 p.m. he found the blinds of the premises drawn and both outer doors locked. Upon admission, he found 24 persons on the premises, many of whom were drinking intoxicating liquor. The complainant did not know and did not ascertain the name, address or occupation of any of these persons or the capacity in which any of them was on the premises.


At the close of the prosecution case, the learned President dismissed the charges in respect of counts 1, 2, 3 and 4. In respect of the remaining two counts, he has sought the opinion of this Court on the following questions:-


(1) Whether on the true construction of the Acts, the two charges of permitting persons to be on the licensed premises during prohibited hours and of permitting consumption of intoxicating liquor on the same licensed premises on the same occasion are alternatives so that the license may be convicted of one but not of both.


(2) Whether in the instant case the evidence of the address of the licensed premises (as being in Upper Clanbrassil Street) is sufficientevidence that the premises are and were with in the County Borough ofDublin.


(3) Whether to justify a conviction under Section 29 of the Intoxicating Liquor Act, 1962, at least one person "found on" the premises must be proved to be himself a person committing an offence under Section 17 (1) of the 1927 Act as substituted for by Section 12 of the 1960 Act.


(4) If the answer to (3) is "Yes" whether the onus rests on the prosecution to show that some or at least one of the persons found on the premises is not an excepted person within categories (c) to (f) in that sub-section."


Section 2 of the Intoxicating Liquor Act, 1927, as amended by Section 4 of the 1960 Act and Section 2 of the 1962 Act, provides that:-

"It shall not be lawful for any sell or expose for sale any intoxicating liquor or to open or keep open any premises for the sale of intoxicating liquor or to permit any intoxicating liquor to be consumed on licensedpromises........"


between 2.30 p.m. and 3.30 p.m. where the premises are situate in the County Borough of Dublin or Cork.


Section 17 (1) of the same Act, as substituted by Section 12 of the Actof1960, provides that:-

"Subject to sub-sections (2) and (4) of this Section, a person who is found on any licensed premises during any time in which the sale of intoxicating liquor on such premises is prohibited by this Act, guilty of anoffence.........."


unless he belongs to one of the categories of persons enumerated in thesub-section.


Section 29 of the Act of 1962 provides that:-

"A person who permits a person to be on licensed premises contrary to sub-section (1) of Section 17.........of the Act of 1927 shall be guilty of an offence........."


It is submitted on behalf of the defendant that, since the two offences in question arise essentially out of the same transaction, the defendant in a case such as the present cannot be convicted of both.


In considering this submission, it is to be observed at the outset that the offences created by Section 2 of the Act of 1927 (of permitting consumption of intoxicating liquor during prohibited hours) and Section 29 (of permitting persons to be on the premises during prohibited hours) are separate and distinct offences. A licensee who permits a workman carrying out repairs to the premises one of the excepted categories under Section 17 (1) of the 1927 Act, to be on thepremises during the prohibited hours commits no offence. If, however, he permits that person to consume intoxicating liquor on the premises during the prohibited hours, he commits an offence. A licensee who is found guilty of one of the two offences under consideration is not necessarily guilty of the other offence. The two offences being separate and distinct, there seems no reason in principle why, where evidence is adduced which would support a conviction in respect of both offences, the defendant should not be convicted of both.


The provisions of Section 17 (3) and (4) of the Act of 1927 as substituted would appear to bear out this conclusion. Sub-section (3) provides that a person who consumes intoxicating liquor on a licensed premises during the prohibited hours is to be guilty of an offence. Sub-section (4) then provides that:-

"A person shall not be convicted of an offence under both sub-section (1) and sub-section (3) of this Section in respect of the same occasion".


The reason for this provision is obvious. A person outside the excepted categories who is an licensed premises during the prohibited hours will normally be there in order to drink. If a Guard enters a licensed premises during the prohibited hours and finds a number of persons present, some of whom have actually been served drink and some who are awaiting their turn, no usefulpurpose would be served by punishing those in the first category twiceover.


There is no such provision in respect of the separate and distinct offences which the licenses may commit of permitting persons to be on the premises and permitting consumption; and no reason in my view, for reading the Acts as though they contain such a provision.


The authority most strongly relied on by Mr. Morgan in support of his submissions on this topic was a Northern Ireland case of R. (Bowden) .v. Belfast Justices ( 1952 N.I....

To continue reading

Request your trial
4 cases
  • The State (Armstrong) v Donnelly
    • Ireland
    • Supreme Court
    • 31 July 1985
    ...and were not a duplication of offence and that, therefore, a separate conviction for each was not precluded. McCarthy v. MurphyDLRM [1981] ILRM 213 followed. 3. Accordingly the licence had been automatically forfeited by the endorsement of three convictions. Supreme Court [S.C. No. 111 of 1......
  • DPP v Balogun
    • Ireland
    • High Court
    • 16 October 2019
    ...whether it required to be proved I held that the onus fell on the defendant to prove the issue. I had particular regard to the case of McCarthy v Murphy [1981] I.L.R.M. 213. Mr Staines then indicated that the Defendant was not going into evidence. He further indicated that an issue previou......
  • State (Collins) v Kelleher
    • Ireland
    • Supreme Court
    • 18 November 1983 this report:— 1 Dorrian v. McHugh [1907] 2. I.R. 564. 2 R. (Bowden) v. Belfast Justices [1952] N.I. 91. 3 McCarthy v. Murphy [1981] I.L.R.M. 213. 4 Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378. 5 R. (Daly) v. Justices of County Cork [1898] 2 I.R. 694. Criminal law - Convictions - Validity -......
  • Desmond v Kennedy
    • Ireland
    • High Court
    • 4 November 1983
    ...their employment at 2.16 a.m. on the date mentioned in the summons, the onus of proof being on the Defendant (see McCarathy .v. Murphy, 1981I.L.R.M. 213). Counsel for the Complainant. Susan Denham Counsel for the Defendant. Brian Dempsey Cases Cited. Emary .v. Nolloth, 1903 2 K.B. 264. McM......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT