People (Attorney General) v Boggan

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judgment Date: 07 November 1958
• Date: 07 November 1958

The People (Attorney General) v. Boggan

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

MATTHEW BOGGAN (1)

Court of Criminal Appeal.

Supremes Court.

Criminal law - Jurisdiction - Certificate granted by Court of Criminal Appeal for leave to appeal to Supreme Court - Whether Court of Criminal Appeal has jurisdiction to grant bail pending hearing of appeal by Supreme Court - Indictable offence - Preliminary proceedings in District Court a nullity - Whether Attorney General may prefer an indictment without a preliminary investigation in the District Court - Courts of Justice Act, 1924 (No. 10of 1924), ss. 27, 30, 32 - Courts of Justice Act, 1936 (No. 48 of 1936), s. 62.

When the Court of Criminal Appeal grants a certificate under s. 29 of the Courts of Justice Act, 1924, certifying that a decision involves a point of exceptional public importance and that an appeal should be brought to the Supreme Court, the Court of Criminal Appeal has no jurisdiction to grant bail pending the hearing of the appeal in the Supreme Court. Sect. 30 of the Courts of Justice Act, 1924 does not give power to grant bail in cases not covered by s. 32 of the Act.

So held by the Court of Criminal Appeal (Maguire C.J., Haugh and Teevan JJ.)

The Court of Criminal Appeal granted a certificate for leave to appeal to the Supreme Court to determine if a preliminary investigation by the District Justice of an indictable offence is necessary before the Attorney General may prefer an indictment. On appeal it was

Held by the Supreme Court, (Lavery, Kingsmill Moore, O'Daly and Dixon JJ.; Maguire J. dissenting) allowing the appeal, that the basis of the jurisdiction to try a criminal charge on indictment is a preliminary investigation conducted by a Justice of the District Court on a valid order receiving informations and sending the accused forward for trial or, an order refusing informations, when the provisions of s. 62 of the Courts of Justice Act, 1936 are invoked and the Attorney General is not empowered to put a person on trial on indictment in the ordinary Courts for an indictable offence without first having recourse to a preliminary investigation by a District Justice.

The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39, not followed.

Criminal Appeal.

The appellant, Matthew Boggan, was charged in the District Court at Wexford with a number of indictable offences, including embezzlement, falsification of accounts, forgery and uttering a forged document. District Justice McDonagh, having investigated the charges, made an order that informations should be received and the appellant be returned for trial to the next Circuit Court at Wexford. The Attorney General duly preferred an indictment at this Court but the appellant, in exercise of his rights under s. 54 of the Courts of Justice Act, 1924, applied to have his trial transferred to the Central Criminal Court and the Circuit Judge, by order dated the 22nd February, 1955, ordered accordingly. The Attorney General preferred a new indictment at the Central Criminal Court, substantially charging the same offences and the accused came for trial before Mr. Justice McLoughlin and a jury, in the Central Criminal

Court on the 3rd March, 1955. The appellant was arraigned on this indictment and pleaded not guilty to the counts therein contained and a jury was empanelled to try the issues. Before the trial was entered upon counsel for the appellant submitted that the appellant had been unlawfully returned for trial and that there was no jurisdiction to enter upon the trial. In support of this application it was submitted to the trial Judge that in the course of the preliminary investigation in the District Court a number of the depositions were not taken in accordance with the provisions of the Rules of the District Court, 1948; that a number of the depositions were written out beforehand and, in some cases, as appears from an inspection of the depositions, a number of the depositions were composed of typewritten statements, made to the police by witnesses, and which were pasted on to the deposition sheets. These were read over to the witnesses and signed by them, but the witnesses were not examined thereon, according to the Rules. It was also submitted on behalf of the appellant that during the preliminary hearing he was remanded in custody to a court which was to be held on the 19th January, 1955, that this court was never held, but that the District Justice went to Mountjoy Prison, where the appellant was in custody, and there purported to hold a sitting of the District Court for the County of Wexford and remanded the appellant, for a further period, to the next sitting of the District Court at Wexford to be held on the 26th January, 1955. Counsel for the Attorney General submitted that the accused had been indicted by the Attorney General, that he had been arraigned and pleaded and that the trial Judge should treat the appellant as being properly before the Court. Counsel for the appellant therefore applied to the trial Judge to discharge the appellant, as, he submitted, he was not properly before the Court, and that he (the trial Judge) had no jurisdiction to enter upon the trial. The trial Judge refused the application and the trial proceeded,the appellant being found guilty of nine of the ten counts in respect of which he was charged and he was sentenced to imprisonment for six calendar months on each count, the terms of imprisonment to be concurrent. A certificate for leave to appeal was refused, whereupon the appellant applied to the Court of Criminal Appeal for leave to appeal, under s. 31 of the Courts of Justice Act, 1924, on the grounds, inter alia, that the trial was unsatisfactory and contrary to natural justice because of that irregularity of the proceedings in the District Court and that by reason of the irregularity of the proceedings in the District Court the appellant was denied a proper trial and an adequate opportunity to defend himself and prepare his defence. The Court of Criminal Appeal refused the application and affirmed the conviction and sentence, but granted a certificate, under s. 29 of the Courts of Justice Act, 1924, certifying that the decision involved a point of law of exceptional public importance—whether by reason of the irregularity of the proceedings in the District Court, the trial was unsatisfactory and contrary to natural justice— and that it was desirable, in the public interest, that an appeal therefrom should be taken to the Supreme Court. The appeal to the Supreme Court was on the grounds, inter alia 1, that the trial was unsatisfactory and contrary to natural justice because of the irregularity of the proceedings in the District Court, and during the trial; 2, that by reason of the irregularity of the proceedings in the District Court (a) the accused was improperly returned for trial, (b) the Court had no jurisdiction to try him, and (c) the appellant was denied a proper trial and an adequate opportunity to defend himself and prepare his defence. The other grounds of appeal alleging that the trial was unsatisfactory, were not argued before the Supreme Court but were left open for argument should the determination of the Court on the first ground, be adverse to the appellant. At the hearing of the appeal before the Supreme Court, counsel for the Attorney General conceded that the case should be dealt with on the basis that the proceedings in the District Court were irregular and that the order of the District Justice could not be relied upon as a basis of jurisdiction to try the case. He submitted that the Attorney General had authority to prefer an indictment against any person without a preliminary investigation or order returning for trial and the appeal to the Supreme Court proceeded on this basis.

Cur. adv. vult.

The judgment of the Court of Criminal Appeal was read by the Chief Justice.

Maguire C.J. :—

With regard to the first ground of appeal adduced by Mr. Ó Síocháin ó síocháin, namely, that, by reason of the irregularity of the proceedings in the District Court, the trial was unsatisfactory and contrary to the natural justice, this Court considers that, although it is not bound by the decision of the President in The State (Attorney General) v. Judge Fawsitt(1), it would be desirable to leave this point to be decided by the Supreme Court. Mr. Ó Síocháin's ó síocháin's second ground is divisible into various heads. Under that ground, the trial was alleged to be unsatisfactory by reason of the failure to give adequate notice to the accused of the evidence to be given; the frequent introduction of new evidence without notice or without adequate notice; by reason of the giving of notice of evidence to be given by witnesses which was untrue and inaccurate; by reason of the admission of inadmissible evidence in that the learned trial Judge called a witness after the conclusion of the case for the defence; by reason of the refusal of the prosecution to produce essential witnesses and records; and by reason of the general conduct of the trial. It is true that very short notice was given of some pieces of evidence, to which Mr. Ó Síocháin ó síocháin very properly objected. It is clear, however, that the lear ned trial Judge would, if necessary, have adjourned the trial. Mr. Ó Síocháin ó síocháin, however, elected to allow the trial to proceed. The Court thinks that the situation was dealt with by the trial Judge in the only possible way, and accordingly that this head fails.

The next head was that notice of evidence was given which was untrue. I do not remember that this point was pressed by Mr. Ó Síocháin ó síocháin, and on this ground this Court cannot interfere.

The next ground was that the Judge should not have called a witness ss, Mr. Meyler. The prosecution did not call him, and the question of calling him was first raised by Mr. Ó Síocháin ó síocháin himself. Mr. Bell agreed to bring up this...