Power v Jones and Murray

• Jurisdiction: Ireland
• Judgment Date: 01 January 1944
• Date: 01 January 1944
• Court: Supreme Court

High Court.

Supreme Court.

The State (Power) v. Jones and Murray

THE STATE (at the Prosecution of KITTY POWER)

and

WILLIAM JONES and PATRICK J. MURRAY,Peace Commissioners for the City and County of Waterford, (1)

Lunacy - Dangerous lunatic - Examination of, by two Justices - Duty of Justices to issue warrant under which lunatic confined in County Asylum - Jurisdiction of Justices transferred to Peace Commissioners - Certiorari to quash warrant - Whether grounds expressed in warrant sufficient to justify action of Peace Commissioners - Sufficiency of grounds a question of fact for the Commissioners - Grounds not required by Act to be expressed in warrant - Courts of Justice Act, 1924, s. 88, sub-s. 3 - Lunacy (Ireland) Act, 1867 (30 & 31 Vict. c. 118), s. 10.

Motion on Notice.

Kitty Power, the prosecutrix herein, had been confined in the Waterford District Mental Hospital under the following circumstances. She was arrested at her home at Kill, at

5.15 p.m. on the 16th August, 1941, by the local sergeant of the Civic Guards who accused her of having struck another girl on the same day with an ash switch. At the time of her arrest the prosecutrix was engaged in milking cows belonging to her father. She was taken to the Guards Barracks at Kill, where she was detained for about an hour and was then brought by car to the Guards Barracks in Waterford. She was there examined by Messrs. William Jones and Patrick J. Murray, two Peace Commissioners for the City and County of Waterford, and, at their request, by Dr. Edward McCarthy, one of the dispensary doctors for the County Borough of Waterford. The Peace Commissioners also heard other evidence relating to previous acts of the prosecutrix, but the prosecutrix alleged that she had no opportunity of hearing this evidence or of making any defence.

The two Peace Commissioners adjudged that the prosecutrix should be committed to the Waterford District Mental Hospital and issued a committal warrant authorising Dr. P. J. O'Doherty, the acting Resident Medical Superintendent, to receive her into the Mental Hospital. This committal warrant was incomplete by reason of the fact that the words "the Dispensary District of Waterford No. 1 situate in the City of Waterford" were omitted from it. Accordingly Dr. O'Doherty admitted the prosecutrix to the Mental Hospital but returned the warrant to the Commissioners to be completed. The alteration was made and initialled by Patrick J. Murray but the other Commissioner William Jones, refused to initial the amendment. When he was informed of this Dr. O'Doherty discharged the prosecutrix on the 29th of October, 1941.

The prosecutrix applied to the High Court for a conditional order of certiorari directed to William Jones and Patrick J. Murray to send before the Court for the purpose of being quashed all and singular the records of her said conviction and the said committal warrant issued by them on foot of such conviction. A conditional order was made by the High Court on the 13th of February, 1942, and directed to be issued to William Jones and to Patrick J. Murray, and to the Clerk of the Kilmacthomas District Court Area as such Clerk and on behalf of the said William Jones and Patrick J. Murray, and also to Dr. Patrick J. O'Doherty.

No cause was shown by the Peace Commissioners, but on April 2, 1942, Dr. P. J. O'Doherty showed cause by filing an affidavit which related solely to the committal warrant and declared that he, the deponent, was a stranger to all the other matters referred to in the conditional order. The prosecutrix moved to make absolute the conditional order notwithstanding cause shown by Dr. P. J. O'Doherty and in default of cause shown by the Peace Commissioners.

The grounds on which it was sought to quash the committal warrant were 1, that it was bad on its face inasmuch as:—

(a) It purported to have been made by Commissioners sitting in Waterford City District Court Area in respect of matters which happened in the District Court Area of Kilmacthomas, contrary to law.

(b) That it did not show that there was evidence that the prosecutrix was apprehended under circumstances denoting a derangement of mind and a purpose of committing an indictable crime as required by law,

(c) That it did not show that the Peace Commissioners called to their assistance the nearest available medical officer as required by law.

and 2, that there was no evidence to support the Peace Commissioners' finding.

Sect. 10 of the Lunacy (Ireland) Act, 1867, provides:—

"From and after the 1st day of January, 1868, whenever any person shall be brought before two Justices of any County . . . and it shall be proved to their satisfaction that such person was discovered and apprehended under circumstances denoting a derangement of mind and a purpose of committing some crime for which, if committed, such person would be liable to be indicted, the said Justices shall call to their assistance the medical officer . . . of the dispensary district in which they shall be at the time . . . who shall examine such person without fee or reward, and if such medical officer shall certify that such person is a dangerous lunatic or a dangerous idiot, it shall be lawful for the said Justices by warrant under their hands and seals, to direct that such person shall be taken to the lunatic asylum established either wholly or in part for the County . . . in which he shall have been apprehended and every such person shall remain under confinement in such asylum and be there maintained . . . ."

The prosecutrix applied for a conditional order of certiorari to quash a conviction by two Peace Commissioners finding that she was a dangerous lunatic and also to quash a committal warrant on foot of such conviction. Cause was shown against making the conditional order absolute with respect to the committal warrant only. The prosecutrix sought to make absolute the conditional order with respect to the committal warrant notwithstanding cause shown, contending that it was bad on its face in that it did not show that there was evidence that the prosecutrix was discovered and apprehended under circumstances denoting a derangement of mind and a purpose of committing an indictable crime, and that there was no evidence before the Peace Commissioners that the prosecutrix had been discovered and apprehended under such circumstances.

Held by the High Court (Hanna and Maguire JJ.; Gavan Duffy J. dissenting) that this contention was unsustainable as the section did not require that the warrant should set out the evidence upon which the Peace Commissioners acted, although in fact the warrant did summarise it; further, that there was evidence from which the Peace Commissioners could be satisfied that the prosecutrix came within the terms of the section, and their finding of fact could not he overruled by the Court. Accordingly the Court discharged so much of the conditional order as related to the committal warrant.

The prosecutrix appealed to the Supreme Court against so much of the order of the High Court as related to the committal warrant.

Held by the Supreme Court dismissing the appeal, that the grounds for the finding of the Peace Commissioners were sufficiently...