State (Attorney General), The v District Justice Fitzpatrick

Judgment Date21 December 1954
Date21 December 1954
CourtSupreme Court
The State (Cahill) v. President of Circuit Court and Another. The State (Attorney General) v. District Justice
THE STATE (at the Prosecution of PHILIP CAHILL)
THE PRESIDENT of the CIRCUIT COURT and the ATTORNEY GENERAL and In the Matter of the Constitution and In the Matter of the Courts of Justice Acts, 1924-1947 and In the Matter of the Criminal Justice Act, 1951 (1)
THE STATE (at the Prosecution of the ATTORNEY GENERAL)
DISTRICT JUSTICE FITZPATRICKand In the Matter of the Courts of Justice Acts, 1924 to 1947 (1)

High Court.

Supreme Court.

Jurisdiction - District Court - Circuit Criminal Court - Criminal law - Manslaughter - Dangerous driving - Driving without exercising reasonable consideration for other road users - Indictable offence - Summary charges - Return for trial on indictable offence - Counts in respect of summary charges included in indictment - Summary charges adjourned in District Court from time to time - Summary charges before District Court on the day of trial of accused in Circuit Criminal Court - Dismissal of summary charges by District Justice - Prohibition - District Court order - Certiorari - Mandamus - Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict., c. 93),s. 21 - District Justices (Temporary Provisions) Act, 1923 (No. 6 of 1923),s. 2 - Road Traffic Act, 1933 (No. 11 of 1933), ss. 50, 51, 165 - Courts of Justice Act, 1924 (No. 10 of 1924), ss. 77B, 78 - Courts of Justice Act,1936 (No. 48 of 1936), s. 62 - Courts of Justice Act, 1947 (No. 20 of 1947),s. 16 - Courts of Justice (District Court) Act, 1946 (No. 21 of 1946), s. 5 -Criminal Justice Act, 1951 (No. 2 of 1951), s. 6.

Sect. 6 of the Criminal Justice Act, 1951, provides:—

"Where a person is sent forward for trial for an indictable offence, the indictment may contain a count for having committed any offence triable summarily (in this section referred to as a summary offence) with which he has been charged and which arises out of the same set of facts and, if found guilty on that count, he may be sentenced to suffer any punishment which could be inflicted on a person summarily convicted of the summary offence."

C. was charged in the District Court with (a) manslaughter; (b) dangerous driving contrary to s. 51 of the Road Traffic Act, 1933; and (c) driving without exercising reasonable consideration for other road users contrary to s. 50 of the said Act, the last two offences being triable summarily, but the first being triable only on indictment. C. was returned for trial on the 3rd May, 1951, on the indictable charge of manslaughter, the two summary charges having been adjourned while depositions were being taken on the indictable charge. On the 3rd May, the District Justice adjourned the summary charges until the 17th May for mention only. These charges were adjourned from time to time, and when the indictment on the manslaughter charge was lodged, it contained two counts, one in respect of each summary offence charged. The summary charges were adjourned in the District Court at various times until the 9th July, 1951. On that day C. was on trial in the Circuit Criminal Court, at Green Street, Dublin, before the President of the Circuit Court and a jury, all three charges being before the jury. The summary charges came before the District Court on the morning of that day and, through some misunderstanding, the State was not represented at that time. The District Justice accordingly adjourned the matter until after the luncheon interval. At the resumed hearing in the District Court the solicitor appearing for the Attorney General said he could not proceed, as he had no witnesses because they were all engaged in the trial at Green Street, whereupon the District Justice dismissed the charges. This was

communicated to the President of the Circuit Court after argument by counsel on either side in which counsel for C. applied to have the summary charges struck out of the indictment—which application was opposed by counsel for the State—and counsel for the State made application to have the jury discharged, which application was opposed on behalf of C., and the President adjourned the hearing until the following morning.

On the following morning, prior to the commencement of the hearing in Green Street Courthouse, counsel on behalf of C. applied for, and obtained, in the High Court an order of prohibition, directed to the President of the Circuit Court prohibiting him from continuing to hear the summary charges on the ground, inter alia, that the Circuit Court had no jurisdiction to hear those charges. On the 30th July, counsel, on behalf of the State, applied to the High Court for, and obtained, a conditional order of certiorari, directed to the District Justice, to bring up for the purpose of being quashed the two orders dismissing the two summary charges, and a rule in the nature of mandamuscommanding him to enter continuances upon and to adjourn the hearing of the said charges pending the conclusion of the hearing thereof by the Circuit Criminal Court. On an application to make absolute the conditional order of certiorari, notwithstanding cause shown, Davitt P. disallowed the cause shown and discharged the conditional order. On appeal it was

Held by the Supreme Court, reversing the High Court,

1. Once the Attorney General had exercised his option to place in the indictment a count "for having committed any offence triable summarily,"the jurisdiction of the District Justice was at an end. The matter was thenceforward, in form at least, an indictable misdemeanour and the lesser offence was merged in the greater.

2, The Circuit Court alone had jurisdiction, in the circumstances of this case, to deal with the mutters contained in the indictment and the District Court had no jurisdiction to make an effective order.

3. Once the matters were included in the indictment, the proper order for the District Justice to have made was:— "Strike out. No jurisdiction by reason of pending indictment." The appeal was accordingly allowed and the order of prohibition made by the High Court was discharged.

The conditional order of certiorari obtained by the Attorney General was, accordingly, made absolute.

Motion on Notice.

The prosecutor, Philip Cahill, was a bus driver employed by Coras Iompair Eireann. While driving a bus at Old Cabra Road, Dublin, on the 25th December. 1950, he was involved in an accident which resulted in the death of the conductor of the bus. On the 6th April 1951, he was summoned to appear before the District Court on the 18th April to answer charges of manslaughter, dangerous driving, and driving without consideration for other road users contrary to s. 50 of the Road Traffic Act, 1933. The summonses came on for hearing before District Justice O'Grady on the 18th April; District Justice O'Grady was not one of the Justices permanently assigned to the Dublin Metropolitan District where the summonses were heard, but he had been temporarily assigned thereto by the Minister for Justice from the 1st to the 30th April and was again so assigned from the 1st to the 5th May and from the 15th May to the 25th May. On the 18th April, he entered upon the hearing of the evidence on the manslaughter charge and proceeded to take depositions. The State was represented by a solicitor from the office of the Chief State Solicitor and the accused was represented by counsel. The taking of depositions continued on the 20th, 23rd, 25th, 26th and 30th April and on the 2nd May. On the 3rd May, the District Justice made an order receiving informations and returning the accused for trial upon the charge of manslaughter. Prior to the taking of the depositions the District Justice's attention was called to the provisions of the Criminal Justice Act, 1951, s. 6. The District Justice decided to adjourn the summary charges pending the taking of the depositions. Counsel for the accused did not propose to cross-examine any of the witnesses in relation to the manslaughter charge, but wished to reserve his right to do so in respect of the summary charges. While the taking of the depositions was in progress, the District Justice adjourned the hearing of the summary charges from day to day and, on returning the accused for trial on the 3rd May, adjourned those charges until the 17th May for mention only, and they were so entered on the charge sheet. On the 17th May the summary charges were mentioned before District Justice Fitzpatrick, a Justice permanently assigned to the Dublin Metropolitan District. The charges were then further adjourned, simpliciter, to the 28th June, when they were again mentioned to District Justice Fitzpatrick and the State again asked for an adjournment, the solicitor for the State stating "that he understood that the matters were under consideration by the Attorney General." Counsel for the accused opposed any adjournment, but a further adjournment was granted until the 2nd July at 2 p.m., the entry on the charge sheet and copies of the orders as certified by the Chief Clerk showing an adjournmentsimpliciter. On the 2nd July the charges again came before District Justice Fitzpatrick and the State again applied for an adjournment, this time for three weeks. The trial of the accused in the Circuit Criminal Court on the charge of manslaughter had been fixed for the 9th July. The indictment had been lodged in the Circuit Court Office and included counts in respect of the two summary charges, as well as for manslaughter, and the District Justice was so informed. Counsel for the accused again opposed any adjournment and pressed the District Justice to hear and determine the summary charges, but the District Justice again adjourned them until 10.30 a.m. on the morning of the 9th July, the same day as that fixed for the trial of the accused at the Circuit Criminal Court. Again the entry on the charge sheet and the certified copies of the orders showed an adjournment simpliciter. On the 9th July, the cases...

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