R (McDonnell) v Tyrone Justices

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 08 November 1911
• Court: King's Bench Division (Ireland)
• Date: 08 November 1911

The King (McDonnell)

and

The Justices of County Tyrone (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'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.

1912.

Justices — Summary jurisdiction — Effect of withdrawal of summons — Game laws — 27 Geo. 3, c. 35, ss. 10, 19 — Application of Small Penalties (Ireland) Act, 1873 — Absence of information on oath.

An order of justices permitting a summons for an offence punishable on summary conviction to be withdrawn does not amount to an acquittal of the defendant, and a fresh summons may subsequently be issued for the same offence.

The statement in Pickavance v. Pickavance ([1901] P. 60, at p. 63), that the withdrawal of a summons puts an end to the complaint, dissented from.

The Small Penalties (Ireland) Act, 1873 (36 & 37 Vict. c. 82), applies to convictions for offences relating to game under 27 Geo. 3, c. 35, where the penalty adjudged to be paid does not exceed £5.

It is not necessary that, prior to issuing a summons for an offence under 27 Geo. 3, c. 35, there should be an information on oath.

Certiorari.

The prosecutor, John McDonnell, was charged as defendant in two summonses issued on the 16th February, 1911, on the complaint of John Elliott (prosecuting as a common informer), with offences under section 10 of 27 Geo. 3, c. 35. The charge in one of the summonses was that the defendant did at Legfordrum, in the Petty Sessions district of Newtownstewart and County

Tyrone, on the 2nd August, 1910, unlawfully and not being duly authorized, enter the lands of A. K. S. M'A. Robertson, Esquire, situate at Legfordrum aforesaid, with a gun and dog, to look for game there. The other summons charged a similar offence on the same lands on the 9th October, 1910. No information on oath had been made prior to the issuing of the summonses.

On the 14th October, 1910, two summonses had been issued by the same complainant against the prosecutor as defendant in respect of the same alleged offences. These summonses had come on for hearing before the Justices at Petty Sessions on the 20th October, 1910, and the complainant then stating that he withdrew the summonses, an order was made by the Justices in each case to the following effect, viz., “withdrawn.”

The summonses issued on the 16th February, 1911, were heard by the Justices at Petty Sessions on the 18th May, 1911. The defendant's solicitor objected to the charges being again inquired into, and contended that by the order made on the 20th October, 1910, the defendant had been acquitted of these charges. The Justices convicted the defendant on both charges, and ordered him in each case to pay a fine of £3, and in default of payment to be imprisoned in Londonderry Jail for one calendar month unless the fine was sooner paid. One-third of the fine when paid to go to John Elliott, the informer.

The prosecutor obtained a conditional order to quash these convictions on the grounds (inter alia)—(a) That they were bad in law having regard to the previous complaints contained in the summonses dated the 14th October, 1910, and the orders dated the 20th October, 1910; (b) that they were bad on their face in awarding imprisonment without previously requiring a distress upon the goods of the defendant; (c) that no information as required by 27 Geo. 3, c. 35, was made or proved to have been made.

Cause having been shown on behalf of John Elliott, the complainant in the summonses, against the conditional order, the present application was on behalf of the prosecutor to make the order absolute notwithstanding cause.

Murnaghan, for the prosecutor:—

The convictions are bad on three grounds:—

1. The orders of the 20th October, 1910, operated as a bar to any subsequent proceedings in respect of the matters complained of. The effect of the withdrawal of a summons is to put an end to the complaint, and a fresh summons cannot be founded on the same complaint: Pickavance v. Pickavance (1), per Sir F. Jeune, in whose judgment Gorell Barnes, J., concurred. No evidence having been offered on behalf of the complainant on the hearing of the summonses of the 14th October, 1910, the defendant was entitled to have the complaints dismissed: Tunnicliffe v. Tedd (2); Vaughton v. Bradshaw (3). The Court should, therefore, construe the order of withdrawal as equivalent to a dismiss. In cases such as this, which do not come within the Petty Sessions (Ireland) Act, 1851, a dismiss, even without prejudice, is a bar to a sub-sequent prosecution for the same offence: G. S. & W. Railway Co. v. Gooding (4); The Queen v. Uncles (5).

2. The orders of the 18th May, 1911, are bad on their face, inasmuch as they award imprisonment in default of payment of the fines, without requiring a previous distress, as provided by section 19 of 27 Geo. 3, c. 35. The Small Penalties (Ireland) Act, 1873, section 4 of which, in cases of summary conviction coming within the section, dispenses with the necessity of a distress warrant, does not apply to proceedings under 27 Geo. 3, c. 35, which are really in the nature of proceedings to recover a penal sum, and the order made is not a conviction, but an order that the defendant shall forfeit a certain sum. Under 27 Geo. 3, c. 35, the maximum period of imprisonment which can be awarded in default of payment is one month; under the Small Penalties Act, where the fine is between £2 and £5, two months' imprisonment may be awarded in default of payment. A general Act is not to be read as increasing the penalties in a special Act. Section 6 of the Small Penalties Act shows that the intention was to shorten, not to lengthen, the term of imprisonment awardable. Moreover, if

the Small Penalties Act applies, the absurdity would result that if a defendant in a proceeding under 27 Geo. 3, c. 35, was fined £3, imprisonment for two months could be awarded for default of payment, whereas if he was fined £10 (the case then not coming within the Small Penalties Act) the imprisonment could not exceed one month.

3. By section 19 of 27 Geo. 3, c. 35, all offences against the Act are to be inquired into and determined either by...