R (Drohan) v Chairman and Justices of County Waterford

• Jurisdiction: Ireland
• Judgment Date: 14 May 1900
• Date: 14 May 1900
• Court: Queen's Bench Division (Ireland)

Reg. (Drohan)

and

Chairman and Justices of County Waterford (1).

Q. B. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1901.

Summary jurisdiction — Appeal to Quarter Sessions — Recognisance to prosecute appeal — Validity of recognisance signed only by some of several appellants — Validity of recognisance signed only by an appellant's agent — Waiver — 14 & 15 Vict. c. 93, s. 24 — Effect of reversal on appeal of a joint conviction against three defendants, two of whom only had validly appealed — Bias — Certiorari — Certiorari in regard to an order of acquittal by an inferior tribunal.

D. and two others having been jointly convicted at Petty Sessions, under the Fishery Laws, for not maintaining a free gap in the Lismore salmon weir, appealed jointly to Quarter Sessions, and, after adjournments by consent, the case was heard and the conviction below reversed. The two other appellants had duly perfected the necessary recognisances, but D., owing to absence from the country, had been unable personally to sign the recognisance within the time limited by 14 & 15 Vict. c. 93, s. 24, but his agent thereto authorised had done so on his behalf. On an application for certiorari to quash the order of Quarter Sessions:—

Held, that the application must fail.

Semble, That D.'s recognisance was bad, but that, even if bad, this objection could not, in this case, be now taken, inasmuch as it had not been relied upon when the appeal had first come before the Quarter Sessions, and had not been relied upon on a previous unsuccessful application to the High Court for a writ of prohibition to restrain the hearing of the appeal.

Held, further, that, on the reversal on appeal by a Court of Quarter Sessions of a joint conviction against several defendants, the conviction as against all of them must fall, even though one of such appellants had not validly entered into the required recognisance to prosecute the appeal.

Quære, Does Certiorari in no case lie from an order of acquittal By Justices? Reg. v. Justices of Antrim ([1895] 2 Ir. R. 603) discussed.

An objection to an adjudication by a Justice on the ground of bias must be supported by evidence to show some reasonable likelihood of bias.

Certiorari. Motion to make absolute a conditional order, dated the 23rd February, 1900, for a writ of certiorari, directed to the Chairman and Justices of county Waterford, to remove and quash an order made by them at Quarter Sessions on the 30th

December, 1899, upon the hearing of an appeal from an order of the Justices sitting at Lismore Petty Sessions on the 29th July, 1899, convicting the defendants, “for that the free gap in defendants' weir at Lismore was not in accordance with the regulations of the Salmon Fishery (Ireland) Act, 1862, sect. 9, sub-sect. 2, and fining them £54.” The order of the Justices at Petty Sessions had been reversed on appeal at Quarter Sessions, and the summons dismissed.

The grounds stated upon the face of the conditional order were—1, want and excess of jurisdiction; 2, that one of the adjudicating Justices was interested and partial; 3, that no valid recognisance or recognisances had been entered into, and that there was no power to hear the case without valid recognisances, and that the entry into an illegal recognisance after the hearing of the case, and after the termination of the Quarter Sessions, could not supply this defect; and, 4, that evidence proper to be submitted on the hearing of the appeal was, having regard to the charges laid in the summons, illegally excluded, and that the complainant was entitled to a rehearing of the charge laid in the summons.

The Duke of Devonshire, and Richard Foley and Edmond Foley (the lessees of his salmon weir at Lismore), had been prosecuted at Lismore Petty Sessions (a) for not making, and (b) for not maintaining, a legal free gap in that weir, and had been convicted by the Justices on the 28th January, 1899, upon the first count, and had been fined £1000.

On case stated for the opinion of the Queen's Bench Division, the Court, after argument, made an order, dated the 19th June, 1899, declaring that the conviction for not making a free gap was wrong and should be reversed; but they remitted the case to the Justices, with an expression of opinion that, by reason of a certain finding of fact in regard to the non-maintenance of the gap, the Justices ought to convict the defendants for not having maintained it, and should impose in respect thereof such penalty as was right. Thereupon, on the 29th July, 1899, the Justices sitting at Lismore Petty Sessions made a new order of conviction, imposing on the three defendants a penalty of £54. The defendants having thereupon proceeded to appeal to the Court of Quarter Sessions, the prosecutor, Drohan, on the 13th September, obtained a conditional order for a writ of prohibition, directed to the Chairman and Justices of Quarter Sessions, to restrain them from entertaining the appeal on the ground (substantially) that the order of the Queen's Bench Division upon the case stated was final, and that therefore no appeal lay. The Court of Quarter Sessions subsequently met on the 20th September, 1899, and, by consent of the parties, made an order adjourning the matter pend the decision of the Queen's Bench Division whether prohibition should go.

On the 3rd November, 1899, the Queen's Bench Division, after argument, discharged the conditional order for prohibition, holding, by a majority, that the acceptance by the defendants of a case stated as to the conviction of January, 1899, did not, under the circumstances of the ease, preclude them from appealing to Quarter Sessions from the subsequent order of 29th July.

See the reports of these proceedings—[1900] 2 Ir. R. 161; [1900] 2 Ir. R. 307.

It appeared from the records of the Quarter Sessions Court (produced during the argument) that when the appeal came on for hearing on the 20th September, an order was made by that Court that the appeal was “adjourned by consent,” and, upon a subsequent occasion, a similar order, adjourning the appeal by consent, was made.

The conditional order for prohibition having been discharged, the appeal was heard upon the merits on the 30th December, 1899, before his Honour the County Court Judge and Mr. John Noonan, J.P. Counsel for the prosecutor (Drohan) objected to Mr. Noonan, on the ground of interest, alleging that he was a party to ordering the prosecution, and had been present at the meeting of the conservators when directions were given for the institution of proceedings in regard to this weir, and on the ground that he was a tenant of the defendants Foley, and was connected by marriage with one of them. As to this, Mr. Noonan said that he took no part in any of the discussions referred to, and was never present at any meeting of the board when the prosecution against the defendants, or either of them, was either considered or decided upon; that, the meetings of the board being sometimes protracted, and the names of the members who attended being taken down without regard to the stage of proceedings when they entered or left the room, the fact that his name appeared in the minute book as present when Mr. Drohan was directed to prosecute the defendants did not necessarily show that he, Mr. Noonan, was present when the resolution in question was proposed or adopted; and he positively swore that he was not present at the time, and did not know of the existence of the resolution or direction until after the summons against the defendants had been taken out. In reply to a statement made on behalf of Drohan, Mr. Noonan admitted that on two previous occasions when prosecutions were at hearing against the defendants on the 3rd and 17th December, 1898, when the summons herein first came on for hearing, he had withdrawn from the bench, being then a member of the Board of Conservators, and believing that, while holding that position, it would not be seemly for him to adjudicate upon such a complaint; but that long before the appeal to Quarter Sessions came on to be heard, his connexion with the board had been severed. He stated that he had sat on the appeal without communication with anybody, and that when the objection was raised he had stated that he had never authorised the prosecution, and was quite impartial between the parties.

Counsel for Drohan next objected (at Quarter Sessions) that the appeal was not properly before the Court, because, although the proper recognisances had been entered into formally by Messrs. Richard and Edmund Foley, the recognisance entered into by the Duke of Devonshire was not signed personally by him, but by his acting agent at Lismore, Mr. Beecher. Mr. Beecher (it was stated) had signed the recognisance on the Duke's behalf, under written authority to do so, it being impossible to get the Duke's own signature within the time limited by the Petty Sessions Act; and it was stated that at Quarter Sessions the Chairman considered the recognisance defective so far as concerned the Duke, but ruled that he would proceed to hear the appeal, and allow a valid recognisance to be lodged within a week; and (it was stated) counsel for the Duke undertook that a valid recognisance would be lodged nunc pro tunc within that time, and that this was done.

As to this, it was submitted in the affidavits filed on behalf of the three respondents, the Duke of Devonshire and the Messrs. Foley, that the conditional order for prohibition was obtained on the faith of the representation, made in the affidavit grounding the application for that order, that the appeal to Quarter Sessions had been duly lodged; and stated further, that, upon the argument of the motion to make that conditional order absolute, counsel for the prosecutor, Drohan, in reply to the defendants' contention that the application for prohibition...