People (Attorney General) v Marchel O'Brien

• Jurisdiction: Ireland
• Judgment Date: 16 December 1963
• Date: 16 December 1963
• Court: Supreme Court

The People (Attorney General) v. Marchel O'Brien.

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

MARCHEL O'BRIEN (1)

Supreme Court.

Criminal law - Case stated - Charge of manslaughter - Counts for dangerous driving included in indictment - Trial in Circuit Criminal Court - No proof that accused charged with dangerous driving in the District Court - Accused found not guilty by direction on the counts for dangerous driving - Jury disagreeing on count for manslaughter - Accused re-arraigned on count for manslaughter - Plea in bar to the indictment - Whether plea of autrefois acquit sustainable - Road Traffic Act, 1933 (No. 11 of 1933),s. 51 - Courts of Justice Act, 1947 (No. 20 of 1947), s. 16 - Criminal Justice Act, 1951 (No. 2 of 1951), s. 6.

B. was indicted on a charge of manslaughter which arose out of his driving of a motor car. There was included in the indictment under s. 6 of the Criminal Justice Act, 1951, two additional counts for dangerous driving. At the trial in the Circuit Criminal Court, on the 14th June, 1956, the prosecution did not prove that B. had been charged in the District Court with dangerous driving. This matter having been raised by counsel for the accused, the accused was found not guilty by direction of the trial judge. The jury failed to agree on a verdict on the count for manslaughter and they were discharged. B. was later re-arraigned on the count for manslaughter, but before the formal arraignment he raised through his counsel a plea in bar to the indictment, relying on the record of his acquittal on the counts for dangerous driving; he contended that the acquittal on the counts for dangerous driving necessarily involved an acquittal on the graver charge of manslaughter. The President of the Circuit Court, before whom he was then appearing, thereupon stated a case for the opinion of the Supreme Court. The question of law raised by the Case Stated was whether the jury upon the trial of the issue raised in the accused's plea in bar should be directed that the accused was lawfully acquitted of the charge of manslaughter on the 14th June, 1956.

Held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore, Ó Dálaigh ó dálaigh and Maguire JJ.):—

1, A charge in the District Court for the summary offence of dangerous driving was a necessary preliminary to the inclusion of counts in relation thereto in the indictment;

2, As no such charge had been proved the Circuit Criminal Court never had jurisdiction to try B. on the counts in relation to dangerous driving;

3, B. had therefore never been in peril on the counts for dangerous driving in the indictment and accordingly the plea of autrefois acquit did not lie.

The question in the Case Stated was accordingly answered in the negative.

Case Stated by the President of the Circuit Court (Judge Shannon), pursuant to the provisions of s. 16 of the Courts of Justice Act, 1947.

The Case Stated was as follows:—

"On the 19th day of July, 1956, as appears from the stenographer's note certified by me and attached hereto, the accused was put forward for arraignment before me, sitting in the Circuit Criminal Court at Green Street, Dublin. Prior to his arraignment counsel (Mr. Edward Fahy) on his behalf raised a plea in bar to the indictment." [A certified copy of the said plea was attached to the Case Stated.]

"It appears from the record attached hereto that the accused was tried on the 13th and 14th day of June, 1956, before His Honour Judge Conroy and a jury on indictment No. 10 of the County of the City of Dublin, having pleaded"not guilty" to the charges therein laid. It further appears from the said record that the results of the said trial was a disagreement on the first count and a finding of "not guilty by direction" on each of the remaining counts.

The arraignment on which the plea in bar was raised was a re-arraignment of the accused on count 1 of the said indictment. No evidence, other than the said record, was adduced to show the circumstances under which the accused was alleged to have been acquitted of the offence of manslaughter or of the offences of dangerous driving charged in counts 2 and 3 of the indictment.

It was agreed that the acquittal by direction on counts 2 and 3 was because of the failure of the prosecution to prove that the accused had been charged in the District Court with the offences included in the indictment as counts 2 and 3 and that it had been submitted that before such counts could be allowed to be considered by the jury under s. 6 of the Criminal Justice Act, 1951, evidence that the accused had been so charged was essential.

Upon hearing submissions by counsel on behalf of the Attorney General and on behalf of the accused, and upon hearing an application by Mr. Fahy for a case stated to the Supreme Court, pursuant to s. 16 of the Courts of Justice Act, 1947, to which application counsel on behalf of the Attorney General consented, and being of opinion that the matter raised was a point of law fit for determination by the Supreme Court, I decided to refer this Case to the Supreme Court, and I ordered that the accused's costs of and incidental to the Case Stated (limited to one junior counsel) be paid by the State.

The question of law for determination by the Supreme Court is whether the jury upon the trial of the issue raised in the accused's plea in bar should be directed that the said accused was lawfully acquitted of the charge of manslaughter on the 14th day of June, 1956."

The Case Stated was signed by the President of the Circuit Court and was dated the 29th July, 1957.

Cur. adv. vult.

Maguire C.J. :—

I have read the judgments about to be delivered by Mr. Justice Kingsmill Moore and Mr. Justice Ó Dálaigh ó dálaigh and I agree with them.

Lavery J. :—

I also have read the judgments of Mr. Justice Kingsmill Moore and Mr. Justice Ó Dálaigh ó dálaigh and I agree with them.

Kingsmill Moore J. :—

This appeal arises on a consultative Case Stated pursuant to s. 16 of the Courts of Justice Act, 1947, by the learned President of the Circuit Court.

Marchel O'Brien was tried before Judge Conroy on an indictment containing three counts. The first was the common law offence of manslaughter. The second was driving at a speed dangerous to the public contrary to s. 51 of the Road Traffic Act, 1933. The third was driving in a manner dangerous to the public contrary to the same section of the same Act. In the particulars given in the counts all the offences are alleged to have been committed on the same public highway in Donnybrook.

The verdict of the jury was:—

Count 1. We cannot reach agreement on verdict.

Count 2. Not guilty by direction.

Count 3. Not guilty by direction.

These facts appear from the record of the proceedings.

Marchel O'Brien was subsequently brought forward for rearraignment on count 1 of the said indictment before the President of the Circuit Court on the 19th July. Prior to his arraignment Mr. Fahy, his counsel, raised the plea ofautrefois acquit in the following form:—"Marchel O'Brien says that the People ought not further to prosecute the indictment against him because he has been lawfully acquitted of the offence of manslaughter and of the offences of dangerous driving charged therein in counts 2 and 3 thereof; and as to the offence of which the said Marchel O'Brien now stands indicted he says that he is not guilty."

Mr. Fahy handed in the record of the former trial but offered no further evidence.

By consent of counsel for the State and for the prisoner the President adjourned the trial and stated a case for this Court on a question of law "whether the jury upon the trial of the issue raised in the accused's plea in bar should be directed that the said accused was lawfully acquitted of the charge of manslaughter on the 14th day of June, 1956."

Mr. Fahy contends that the only evidence available and admissible is the record of the former proceedings: that the verdict on counts 1 and 2, "not guilty by direction," is for all relevant purposes the same as a verdict of "not guilty" given by the jury as an expression of their own determination on the facts and law of the case, and that as an acquittal on a charge of driving at a speed or manner dangerous to the public necessarily involves the negative of an essential element in the crime of manslaughter he is entitled to maintain successfully a plea of autrefois acquit.

I will assume in favour of the accused that the manslaughter was charged as having been caused by the dangerous driving of a motor car though this nowhere appears on the record.

The law in regard to the plea of autrefois acquit is succinctly stated by Lord Reading in R. v. Barron(1), at p. 574:—"The principle on which this plea depends has often been stated. It is this, that the law does not permit a man to be twice in peril of being convicted of the same offence. If, therefore, he has been acquitted, i.e., found to be not guilty of the offence, by a Court competent to try him, such acquittal is a bar to a second indictment for the same offence. This rule applies not only to the offence actually charged in the first indictment, but to any offence of which he could have been properly convicted on the trial of the first indictment. Thus an acquittal on a charge of murder is a bar to a subsequent indictment for manslaughter, as the jury could have convicted of manslaughter."

"The same offence" is given an elastic meaning. If all the elements necessary to constitute the first offence are also necessary ingredients in the second offence then the two offences are considered as being substantially the same. Thus an acquittal on a charge of common assault can be pleaded as autrefois acquit to an indictment for an assault causing actual bodily harm (R. v. Miles(2)) for if a person has been acquitted of an assault this acquittal negatives the existence of the elements necessary for an aggravated assault. But if only portion of...