R (Walsh) v Tipperary Justices

• Jurisdiction: Ireland
• Judgment Date: 12 January 1917
• Date: 12 January 1917
• Court: King's Bench Division (Ireland)

R. (Walsh)

and

Tipperary Justices (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.

1917.

Justices — Jurisdiction — Petty Sessions — Form of Order — Dismiss — Case outside the Petty Sessions Act — Omission to state whether dismiss “without prejudice” or “on the merits” — Res judicata — Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), ss. 21, 42 — Game Act(27 Geo. 3, c. 35), s. 10.

The procedure laid down by sect. 21 of the Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), is not obligatory in the case of a dismiss under the Game Act (27 Geo. 3, c. 35), and an order of the justices, made under that Act, stating that a charge is “dismissed,” without adding “on the merits” or “without prejudice,” is a good order, and a bar to subsequent proceedings for the same offence.

R. (Bridges & Ram) v. Armagh Justices, [1897] 2 I. R. 236, considered.

Certiorari.

Application to make absolute a conditional order of certiorari to quash a conviction at the Thurles Petty Sessions on the 11th November, 1916. The prosecutor, Richard Walsh, was summoned to appear at the Petty Sessions Court held at Thurles in the county of Tipperary, on the 7th October, 1916, to answer a complaint that on Friday, the 29th September, 1916, at Lolagh, otherwise Liskeveen, he unlawfully entered the lands of the complainant Margaret Louisa Mansergh Going, in pursuit of game, contrary to 27 geo. 3, c. 35, sect. 10. The justices, having heard the case and gone into evidence, made an order “that the complaint is dismissed.” Subsequently, on the 9th November, 1916, the prosecutor was served with another summons or complaint at the suit of the same complainant, charging him with the same offence. Upon the hearing of this second summons it was contended on behalf of the prosecutor that, having regard to the former order of the justices, the matter was res judicata; but the solicitor for the complainant contended that, having regard to the form of their order, viz., “dismissed,” the order was a nullity, and, therefore, no bar to further proceedings. The solicitor for the

prosecutor thereupon withdrew and took no further part in the proceedings. The justices, however, heard the case and made an order to the following effect:— “Defendant is convicted of the said offence and ordered to pay for fine the sum of twenty shillings in four weeks' time, and in default of payment to be imprisoned in Limerick Jail for the period of fourteen days without hard labour, unless said sum be sooner paid.”

On the 30th November, 1916, a conditional order to quash the conviction was made, on the application of the prosecutor, on the following grounds:—

1. That the order dated the 11th November, 1916, was made without and in excess of jurisdiction.

2. That the said order was made without and in excess of jurisdiction, as the matter of said complaint was res judicata.

3. That the said order is bad on its face, as it charged several offences, and it is uncertain upon which the conviction purports to have been made.

4. That the said order is bad on its face in convicting the defendant generally of distinct offences charged conjunctively.

5. That the said order is bad in not specifying distinct fines for each conviction.

Murnaghan, for the prosecutor:—

The conviction, dated 11th November, 1916, is in excess of jurisdiction, as the order of “dismiss,” dated 7th October, 1916, was a final order and valid under the Act 27 Geo. 3, c. 35. The observations of O'Brien J, in R. (Bridges & Ram) v. Armagh Justices (1) are obiter dicta.

[Gibson J. referred to R. (M'Donnell) v. Justices of Tyrone (2).] In R. (Bridges & Ram) v. Armagh Justices (1) the terms of sect. 42 of the Petty Sessions Act were not considered. The form of order is not a form of procedure, but deals with rights. Sect. 21 of the Petty Sessions Act is expressly excepted by the language of sect. 42. The authority of R. (Bridges & Ram) v. Armagh Justices (1) is cut into by the decision in R. (Kane) v. Tyrone Justices (3):—O'Connor's Justice of the Peace, vol. i, 199 (n).

Dismiss was an order of acquittal under the law previous to the Petty Sessions Act where there was a hearing on the legal merits: O'Connor's Justice of the Peace, vol i, p. 257.

The conviction is bad on its face. Several offences are charged in the summons: R. (M'Carron) v. Donegal Justices (1), and the conviction is for “the said offence,” and is uncertain. The rule that several convictions can be made in the one order does not apply: R. (Burrowes) v. Justices of Cavan (2).

Mark Cooper, for the complainant in the summons:—

The intention of the Legislature was to assimilate the procedure under the Game Acts to the ordinary Petty Sessions procedure. This was done by sect. 42 of the Petty Sessions Act. The word “may” in this section is mandatory and should be read...