Shelly v District Justice Mahon

JurisdictionIreland
CourtSupreme Court
JudgeGRIFFIN J.,Mr. Justice Costello,WALSH J.
Judgment Date08 March 1990
Neutral Citation1990 WJSC-SC 1229
Date08 March 1990
Docket Number[S.C. No. 360 of 1989]
SHELLY v. MAHON & DPP

BETWEEN:

LIAM SHELLY
Applicant
Respondent

and

DISTRICT JUSTICE SEAMUS MAHON AND THE DIRECTOR OF PUBLICPROSECUTIONS
Respondents
Appellants

1990 WJSC-SC 1229

NO. 90/1989
(360/89)

THE SUPREME COURT

JUDICIAL REVIEW

Synopsis:

CRIMINAL LAW

Trial of offences

Fundamentals - Due course of law - Administration of justice - Duly appointed judge - Conviction in District Court - Conviction by former District Justice - Conviction invalid - Remedial legislation - Enactment purported to validate conviction - Validation expressed to be without prejudice to constitutional rights - Validation ineffective - The applicant's constitutional right to be tried on the charge in a court established by law and by a judge duly appointed in the manner provided by the Constitution had been infringed - The applicant's conviction was a nullity - The Oireachtas had no power to ratify or validate such purported conviction - Courts of Justice (District Court) Act, 1946, s. 15 - Courts of Justice (District Court) Act, 1949, s. 2 - Courts (No.2) Act, 1988, s. 1 - Constitution of Ireland, 1937, Articles 15, 34, 38, 40 - (360/89 - Supreme Court - 8/3/90)

|Shelly v. Mahon|

JUDGE

Retirement

Functions - Discharge - Continuance - Criminal charge - Conviction by District Justice after date of retirement - Conviction invalid - Remedial legislation - Legislation ineffective to validate act constituting infringement of Constitution - (360/89 - Supreme Court - 8/3/90) - [1990] 1 I.R. 36

|Shelly v. Mahon|

CONSTITUTION

Courts

Administration of justice - Judge - Status - Termination - Retirement - Conviction of applicant after date of retirement - Conviction void - Remedial legislation - Oireachtas without power to validate conviction - (360/89 - Supreme Court - 8/3/90)

|Shelly v. Mahon|

CONSTITUTION

Oireachtas

Function - Legislation - Powers - Limitation - Constitution - Provisions - Infringement - Purported legislative validation of act of infringement - Validation ineffective - (360/89 - Supreme Court - 8/3/90) - [1990] 1 I.R. 36

|Shelly v. Mahon|

CONSTITUTION

Personal rights

Criminal charge - Trial - Due course of law - Judge - Retirement - Conviction of applicant after date of retirement - Conviction void - (360/89 - Supreme Court - 8/3/90) - [1990] 1 I.R. 36

|Shelly v. Mahon|

WORDS AND PHRASES

"Autrefois convict"

Plea - Relevance - Criminal offence - Trial - Conviction - Trial judge - Status - Conviction imposed after statutory retirement date of judge - Conviction a nullity - Whether subsequent prosecution for same offence maintainable - (360/89 - Supreme Court - 8/3/90) - [1990] 1 I.R. 36

|Shelly v. Mahon|

WORDS AND PHRASES

"Due course of law"

Criminal charge - Trial - Judge - Retirement age - Continuance in office - Absence of warrant extending appointment - Applicant convicted - Infringement of constitutional imperative - Conviction a nullity - (360/89 - Supreme Court - 8/3/90)1990 1 IR 36

|Shelly v. Mahon|

Citations:

ROAD TRAFFIC ACT 1961 S49 (2)(4)

ROAD TRAFFIC AMENDMENT ACT 1978

ROAD TRAFFIC AMENDMENT ACT 1984

COURTS OF JUSTICE (DISTRICT COURT) ACT 1949 S2

COURTS (NO 2) ACT 1988

COURTS (NO 2) ACT 1988 S1(1)

COURTS (NO 2) ACT 1988 S1(2)

COURTS (NO 2) ACT 1988 S1(3)

CONSTITUTION ART 38.1

CONSTITUTION ART 34.1

CONSTITUTION ART 35.1

CONSTITUTION ART 36

CONSTITUTION ART 34

CONSTITUTION ART 35

CONSTITUTION ART 38.2

COURTS OF JUSTICE (DISTRICT COURT) ACT 1946 S15(1)

COURTS OF JUSTICE (DISTRICT COURT) ACT 1949 S2(2)

COURTS OF JUSTICE (DISTRICT COURT) 1949 S2(3)

CONSTITUTION ART 15.4

GARDA SIOCHANA ACT 1979

GARVEY V IRELAND 1981 IR 75

MENTAL TREATMENT (DETENTION IN APPROVED INSTITUTIONS) ACT 1961

GARDA SIOCHANA ACT 1979 S1(2)

LOCAL GOVT (PLANNING AND DEVELOPMENT) ACT 1982 S6

LOCAL GOVT (PLANNING AND DEVELOPMENT) ACT 1982 S6(2)

CRIMINAL LAW (JURISDICTION) BILL 1977 IR 129 @ 152

LYNHAM V BUTLER (2) 1933 IR 74

COWAN V AG 1961 IR 415

DEATON V AG 1963 IR 170

O'SHEA, STATE V MIN DEFENCE 1947 IR 49

MURPHY V AG 1982 IR 241

VOZZA, STATE V O'FLOINN 1957 IR 227

BYRNE, STATE V FRAWLEY 1978 IR 326

WALSH, STATE V MURPHY 1981 IR 275

CONNORS V DELAP 1989 ILRM 93

WHITE V HUSSEY 1989 ILRM 109

REGINA V SURREY JJ (1870) LR 5 QB 466

R V STAFFORD JUSTICES, EX PARTE STAFFORD CORPORATION (1940) 2 KB 33

FUREY, STATE V MIN DEFENCE & AG 1988 ILRM 89

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381

BUCKLEY & ORS (SINN FEIN) V AG & ANOR 1950 IR 67

HAUGHEY, IN RE 1971 IR 217

BETTING ACT 1931

COURTS (NO 2) ACT 1988 S1(2)(a)

1

JUDGMENT delivered on the 8th day of March 1990by WALSH J. [HEDERMAN CONC]

2

On the 28th May 1987 the applicant appeared in the District Court at Roscrea, Co. Tipperary to answer a complaint that he had committed an offence contrary to sec. 49(2)(4) of the Road Traffic Act, 1961, as amended and inserted by the Road Traffic Amendment Acts of 1978and 1984. It was alleged that he had been driving a motor vehicle with a concentration of alcohol in his blood exceeding a concentration of 100 milligrammes ofalcohol per 100 millilitres of blood. Any person convicted of this offence is liable to be fined a sum not exceeding £500 or suffer a sentence of imprisonment for a period not exceeding six months or may be subject to both penalties. This is a criminal offence.

3

Before being convicted of any such offence the applicant, like all persons accused of criminal offences, had a constitutional right to have his case decided in a court set up under the Constitution and presided over by a judge appointed in accordance with the Constitution. He was not afforded that right. His case was not heard by a judge appointed under the Constitution.

4

The first-named respondent had been a judge of the District Court from the llth day of October 1976 until he reached the age of 65 years on January 4th 1984. There was a statutory power to continue him in office as a judge of the District Court after reaching that age provided he acquired a warrant under sec. 2 of the Courts of Justice (District Court) Act, 1949which had to be obtained before he reached the age of sixty five. Hedid not obtain such warrant before reaching his retirement age.

5

Because of an oversight in the Department of Justice, and apparently also on the part of the then District Justice, it had been assumed that he would not reach retiring age until January 4th 1985. A warrant for extending his period of office, based on that mistaken assumption, was made on the 19th December 1984 to cover the period beginning the 4th January 1985 and warrants were made for subsequent years all of which, of course, were null and void because he had ceased to be a judge of the District Court for almost one year before the first of these warrants had been issued. On the 28th day of May 1987 he was not a judge of the District Court although on that date he purported to convict the applicant of the offence already referred to and purported to order him to pay a fine of £50 and ordered that in default of payment within a period of three months the applicant was to be imprisoned for a period of five days. He also purported to disqualify the applicant from holdinga driving licence for twelve months and ordered that the purported conviction was to be endorsed on the applicant's driving licence. He further purported to postpone the operation of the disqualification to commence on the 1st August 1987.

6

There is no doubt, and it is not claimed by the appellants in this case, that the purported conviction was other than a nullity. The error in the records of the Department of Justice was not discovered until some time after the middle of 1988 whereupon it became clear to the Department and to all persons concerned with the purported renewal of the grants of warrants of extension of office that all such purported extensions had been null and void.

7

On the 20th December 1988 the Oireachtas enacted the Courts (No. 2) Act, 1988.The object of this Act was to retroactively permit the extension of the age of retirement of the above-named former Judge of the District Court to be retrospectively made in certain circumstances and "to provide for certain validations".

8

Sec. 1 subsection 1 of the Act gave power, in effect, to extend the age of retirement for the purpose of enabling the issue of warrants of extension of the period of service provided that the former Judge was not, when the warrants fell to be made, suffering from any disability which rendered him unfit to continue to discharge efficiently the duties of the office of Judge of the District Court. Pursuant to that, on the 18th January 1989, five warrants were made continuing the former Judge in office as a Judge of the District Court for the five years commencing on the 4th January 1984, which incidentally meant that at the time the warrants were made he was already at an age outside the scope of the warrants and therefore in effect he could not have been even retroactively made a judge for any period subsequent to the 4th January 1989. Sec. 1 subsection 2 of the Act of 1988 provided that everything (including the satisfying of any condition precedent to the exercise or performance of a power, function or duty) done by the former Judge in respect of the periods for which the new warrants covered should be and"deemed always to have been", as valid and effectual as if a warrant had been duly made before the commencement of that year under (sec. 2 of the Courts of Justice (District Court) Act, 1949) in respect of the Judge in question for that year. It further provided that the remuneration and the conditions of service of the former Judge "should be and be deemed to be as if a warrant had been duly made before the commencement of the year in question under sec. 2 of the Act of 1949."

9

Subsection 3 went on to say "if, because of any validation expressed to be effected by subsection(2)of this section, that subsection would, but for this subsection, conflict with a...

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