Roche v District Judge Martin

JurisdictionIreland
JudgeMr. Justice Murphy
Judgment Date03 March 1993
Neutral Citation1993 WJSC-HC 2620
Docket NumberNo. 227/1992 J.R.
CourtHigh Court
Date03 March 1993

1993 WJSC-HC 2620

THE HIGH COURT

No. 227/1992 J.R.
ROCHE v. MARTIN

BETWEEN

SEAMUS ROCHE
APPLICANT

AND

DISTRICT JUSTICE MARY MARTIN AND DIRECTOR OF PUBLICPROSECUTIONS
RESPONDENTS

Citations:

COPYRIGHT ACT 1963 S27

COPYRIGHT (AMDT) ACT 1987 S2(1)(b)

GILL V CONNELLAN 1988 ILRM 448

HOLLAND, STATE V KENNEDY 1977 IR 193

HEALY, STATE V DONOGHUE 1976 IR 325

LENNON V CLIFFORD 1993 ILRM 77

ROCHE, STATE V DELAP 1980 IR 170

COPYRIGHT (AMDT) ACT 1987 S2

Synopsis:

JUDICIAL REVIEW

Remedy

Scope - District Court - Conviction - Appeal - Absence - Trial - Allegation that evidence insufficient to support conviction - Certiorari refused - (1992/227 JR - Murphy J. - 3/3/93)

|Roche v. Martin|

1

Judgment of Mr. Justice Murphydelivered the 3rd day of march 1993.

2

On the 23rd January 1992 the Applicant was convicted by the above named District Justice Mary Martin of ten offences under Section 27 of the Copyright Act 1963as amended by Section 2(1)(b) of the Copyright (Amendment) Act 1987. The offences of which the Applicant was charged and convicted are those described in common parlance as "video piracy", more correctly and specifically identified in the Summonses in (mutatis mutandis) the following terms: -

"That you did on the 2nd day of July 1991 at Chapel Lane, Roscrea, Co. Tipperary in the Court area and district aforesaid sell or let for hire, by way of trade offer or expose for sale or hire or for the purposes of trade have in your possession an article to wit a video tape recording of Vital Signs, a copyright of which cinematograph film is vested in20th Century Fox Film Corporation knowing the same to be an infringing copy of the said work, contrary to Section 27 of the Copyright Act 1963as amended by Section 2(1)(b) of the Copyright (Amendment) Act 1987".

3

The Applicant did not appeal the convictions by the District Justice but instead and (having obtained an extension of time for that purpose) received leave to apply for an Order of Certiorari by way of application for Judicial Review in respect of each of the said ten orders made by the District Justice on certain grounds the material ones being as follows: -

4

2 "(1) That there was no evidence tendered by any copyright owner that they owned the copyright and the work in which it was alleged the Applicant was in possession of infringing copies in circumstances that were contrary to Section 27 of the Copyright Act as amended by Section 2(1)(b) of the Copyright (Amendment) Act 1987.

5

(2) That the alleged infringing copies detailed in the Summonses were not produced in evidence at the trial.

6

(3) That the evidence with regard to the Applicant's knowledge that the video tapes were infringing copies was not sufficient to give rise to an inference that the Applicant knew that they were infringingcopies.

7

(4) That the seizure of the video tapes was unlawful and not admissable as evidence in the trial of the Applicant in the absence of the first named Respondent expressly ruling that she was exercising her discretion to admit the evidence".

8

As Mr. Justice Lynch pointed out in Gill and Connellan 1988I.L.R.M. 448 at 454: -

"An application for Certiorari by way of Judicial Review is not to be regarded as a readily available alternative to an appeal by way of re-hearing to the Circuit Court, the State (Roche) .v. Delap 1980 I.R. 170. The ordinary remedy for a person who is dissatisfied with a District Court decision is to appeal to the Circuit Court where a complete re-hearing will take place. Alternatively if the facts of a case are not in issue but a point of law arises then an appeal by way of case stated to the High Court is appropriate".

9

In fact it had been argued in the State (Holland) and Kennedy 1977 I.R. 193 that an Order of the District Court could not be reviewed on Certiorari if it was good on its face and the Order made within jurisdiction. In relation to that argument Mr. Justice Henchy commented (at page 201) as follows:

"Having considered the authorities, I am satisfied that the error was not made within jurisdiction. The Respondent District Justice undoubtedly had jurisdiction to enter on the hearing of this prosecution. But it does not necessarily follow that a Court or a tribunal, vested with powers of a judicial nature, which commences a hearing within jurisdiction will be treated as continuing to actwithin jurisdiction. For any one of a number of reasons it may exceed jurisdiction and thereby make its decision liable to be quashed on Certiorari. For instance, it may fall into an unconstitutionality, or it may breach the requirements of natural justice, or it may fail to stay within the bonds of the jurisdiction conferred on it by statute. It is an error of the latter kind that prevents the impugned order in this case from being held to have been made within jurisdiction".

10

Gill and Connellan (above) was itself an example of a hearing which breached the requirements of natural justice. The Solicitor on behalf of the Accused was not given a proper opportunity of making an arguable point. Accordingly, Mr. Justice Lynch quashed the order of the District Justice. He cited (at page 455 of the report) the comments of Gannon J. (which were approved by the Supreme Court) in The State (Healy) v. Donoghue 1976 I.R. 325 as follows:

"Before dealing with the submissions on the grounds on which the conditional orders were made, I think I should say at the outset that it appears to me that the determination of the question of whether or not a Court of local and limited jurisdiction is acting within its jurisdiction is not confined to an examination of the statutory limits of jurisdiction imposed on the Court. It appears to me that this question involves also an examination of whether or not the Court is performing the basic function for which it is established - the administration ofjustice. Even if all the formalities of the statutory limitation of the Court be complied with and if the Court procedures are formally satisfied, it is my opinion that the Court in such...

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