R (Eustace) v D J of County Tipperary

• Jurisdiction: Ireland
• Judgment Date: 04 February 1924
• Date: 04 February 1924
• Court: King's Bench Division (Irish Free State)

R. (Eustace) v. D. J. of Co. Tipperary.

THE KING (EUSTACE)

and

DISTRICT JUSTICE OF COUNTY TIPPERARY (1)

K. B. Div. (I. F. S.)

Certiorari - District Justice - Excess of jurisdiction - Irregularity of record - Evidence - Improper admission - Essentials of justice - District Justices (Temporary Powers) Act, 1923 (I.F.S., No. 6 of 1923) - Public Safety (Emergency Powers) Act, 1923 (I.F.S., No. 28 of 1923) - Public Safety (Emergency Powers) (No. 2) Act, 1923 (I.F.S., No. 29 of 1923) -Adaptation of Enactments Act, 1922 (I.F.S., No. 2 of 1922) - Larceny Act, 1916 (6 & 7 Geo. 5, c. 50) - Misleading variance between charge and conviction - Amendment not allowed - 40 & 41 Vict. c. 56, s. 76.

Two persons (E. and C.) were charged on a joint charge before a District Justice with an offence under the Larceny Act, 1916 (6 & 7 Geo. 5, c. 50). The Justice refused the application of one of the prisoners (E.) to have the case sent for trial by a jury and depositions taken; permitted one of the prisoners (C.) to give evidence on the joint charge before discharge; and without any alteration of the charge as laid, convicted the other prisoner (E.) of an offence only triable on indictment.

Held, that the District Justice, in convicting the prisoner (E.) of an offence which could only be tried on indictment, acted without and in excess of jurisdiction; that the proceedings were irregular, as one of the prisoners was permitted to give evidence on the joint charge before discharge; and that the District Justice misdirected himself in law in refusing to send the case for trial by a jury and to have depositions taken, and in stating that the prosecutor had the option to have the case tried summarily. The order being bad on its face, it was ordered that the writ of certiorari should issue and the conviction be quashed.

Held, per Samuels J., that, even if the Court upon application for certiorari had power to amend a variance between a charge and the conviction thereon, that amendment should not be made, inasmuch as the defendant might have been misled or prejudiced.

Powers and duties of District Justices considered.

Certiorari.

Captain Francis R. Eustace, the prosecutor herein, applied to the King's Bench Division for a writ of certiorari directed to the District Justice of County Tipperary, to remove into the King's Bench for the purpose of being quashed the records of his conviction at Nenagh District Court on 18th December, 1923.

The following statement of facts is taken from the judgment of Molony C.J.:—

At a District Court held at Nenagh on Tuesday, the 18th of December, 1923, Captain Francis R. Eustace and Phyllis Cecil Coldwell were brought before the Court by Chief Superintendent Clinton, of the Civic Guard, on a charge which was entered in the order book as follows: "You, the defendants, on the 16th December, 1923, at Puckane, Co. Tipperary, had unlawfully in your possession, well knowing the same to have been stolen, the following property:—240 lbs. of bacon, 5 boxes of biscuits, 3 packages of candles, 2 boxes of soap, one box of Rinso, one box of Lux, 6 pots of jam, and a quantity of currants and raisins."After the hearing the Justice made an order which was entered in the order book, column 7: "On the evidence given, and the

defendant, Francis R. Eustace, not having given an account to the satisfaction of the District Justice of the manner in which he came by the property found in his possession, is convicted and ordered to be imprisoned in Limerick Jail for twelve months, without hard labour. Defendant Phyllis C. Coldwell is discharged from custody, as the case against her is dismissed without prejudice."And it is stated in column 8 of the order book that the order was made under the Public Safety (Emergency Powers) Act, 1923, sect. 9, and the District Justices (Temporary Powers) Act, 1923.

On the 24th December, 1923, a conditional order for certiorari was made by the Court, on the grounds: 1, that the order was made without and in excess of jurisdiction; 2, that the proceedings were irregular, as no charge was read to the prisoners, nor were they asked to plead; 3, that the District Justice refused the application on behalf of the prisoners to have the accused sent for trial by a jury and depositions taken, and misdirected himself in law in respect thereof by stating that the prosecutor had the option to have it tried summarily; 4, that the District Justice illegally permitted one of the prisoners on the joint charge to give evidence before discharge; 5, that the essentials of Justice were disregarded, inasmuch as the said District Justice refused to allow an adjournment of the case for the purpose of enabling the defendant to obtain the assistance of counsel.

The conditional order was obtained on the affidavit of Mr. M'Grath, the solicitor who appeared for Captain Eustace at the hearing, and subsequently affidavits were filed by Captain Eustace, who was then and up to the time of the application remained imprisoned in Limerick Jail.

Mr. Flood, District Justice, filed an affidavit by way of cause, and the case then came before the King's Bench on the application of Captain Eustace to make absolute the conditional order notwithstanding the cause shown.

Molony C.J. , having stated the facts, continued:—

Before proceeding to consider the grounds mentioned in the conditional order, it is necessary to have a clear view of the duties and powers of District Justices.

District Justices were appointed under the provisions of the District Justices (Temporary Powers) Act, 1923 (I.F.S., No. 6 of 1923), sect. 2 of which is as follows:—

2. (1) It shall be the duty of each District Justice appointed under this Act to hold district Courts at such places within the district allotted to him at such times as shall be prescribed by the Minister.

(2) A District Justice sitting in and holding a district Court pursuant to this Act shall have all the powers, jurisdiction, and authority which were, immediately before the 6th December, 1922, vested by statute or otherwise in a Justice of the Peace sitting at Petty Sessions.

(3) Every order, decree, or judgment made or pronounced by a District Justice sitting in and holding a district Court pursuant to this Act shall be subject to the same appeal (if any) as a similar order, decree, or judgment made or pronounced by a Justice of the Peace sitting in Petty Sessions would have been subject to previous to the 6th December, 1922.

The section contains two other sub-sections, which are not material to the present application.

Sect. 11 provides (inter alia) that the expression "Justice of the Peace" means and includes one Justice of the Peace sitting or acting alone, or two or more Justices of the Peace sitting or acting together.

The effect of these sections is to give a District Justice sitting in a District Court all the power, jurisdiction, and authority formerly exercised by a Justice of the Peace sitting alone in Petty Sessions, or of two or more Justices sitting together.

Article 73 of the Constitution of the Irish Free state provides that, subject to the Constitution, and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstat Éireann éireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas. The Constitution came into force on the 6th December, 1922, and consequently the law to be administered by this Court is the law in force as of that date, subject to any changes which have since been effected by the Oireachtas.

The Oireachtas, on the 20th December, 1922, passed the Adaptation of Enactments Act (No. 2 of 1922), which provides for certain interpretations and adaptations of the Acts passed by the British Parliament which were in force on the 6th December, 1922, and every British Act of Parliament, including the Larceny Act of 1916 (6 & 7 Geo. 5, c. 50), to which I shall have to refer, must now be read subject to the provisions of this Act.

It subsequently became necessary to make temporary provision for the preservation of public safety, and on the 3rd of August, 1923, the Public Safety (Emergency Powers) (No. 2) Act, 1923 (I.F.S., No. 29 of 1923), came into force, and was to continue in force for six months after that date. Sect. 9 of this Act is as follows:—

Every person who shall be charged before a District Justice with having in his possession or on his premises with his knowledge, or conveying in any manner anything which may reasonably be suspected of being stolen or unlawfully obtained, and shall not give an account to the satisfaction of such District Justice of the manner in which he came by the same, shall be guilty of an offence under this Act, and shall be liable to a punishment not exceeding twelve months' imprisonments with or without hard labour.

It will be noted that under this section it is not necessary to prove that the goods were actually stolen or unlawfully obtained, but it is sufficient if the accused has in his possession anything which may reasonably be suspected of having been stolen or unlawfully obtained, and does not give an account to the satisfaction of the District Justice of the manner in which he came by the same. The section is practically the same, except as regards the punishment, and was obviously copied from sect. 5 of the Dublin Police Act of 1842 (5 & 6 Vict. c. 24), which is to the following effect:—

Every person who shall be brought before any of the Divisional Justices charged with having in his possession or on his premises with his knowledge, or conveying in any manner anything which may be reasonably suspected of being stolen or unlawfully obtained, and who shall not give an account to the satisfaction of such Justice how he came by the same, shall be deemed guilty of a misdemeanour, and on...