State (Browne) v Feran

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 24 July 1967
• Docket Number: [NO. 59 SS of 1966.]
• Date: 24 July 1967

Supreme Court.

[NO. 59 SS of 1966.]

The State (Browne) v. Feran.

THE STATE (At the Prosecution of MICHAEL BROWNE)

and

DISTRICT JUSTICE JOHN P. FERAN, THE GOVERNOR OF LIMERICK PRISON, and THE ATTORNEY GENERAL (1)

Constitution of Ireland - Appellate jurisdiction of Supreme Court - Appeal from decision of High Court granting order of Habeas Corpus - Constitution of Ireland, Articles 34, 36, 40, 50.

Certiorari - Order of District Court - Failure to state jurisdiction on order - Criminal Justice Act, 1951 (No. 2 of 1951), ss. 2, 3.

Appeal from the High Court.

On the 21st March, 1966, the prosecutor (Michael Browne) was tried summarily in the District Court, convicted by District Justice John P. Feran of having committed an indictable offence contrary to s. 26(1) of the Larceny Act, 1916, and sentenced to six months' imprisonment. The complaint made against the prosecutor had been entered in the sixth column of the District Justice's minute book under the heading "Substance of complaint" as follows:—"That defendant did between 10 p.m. on 7th March, 1966, and 9 a.m. on the 8th March, 1966, feloniously break and enter the lock-up Co-Operative Stores, Herbertstown, Hospital, Co. Limerick, the property of Patrick O'Donoghue there and did

steal therein 134 Gents' Shirts, value £131, and 75 Gents' Pants, value £196 17s. 6d.—total £327 17s. 6d. Property of said Patrick O'Donoghue. Sect. 26(1) Larc. '16." The figures "26(1)" were written in a cramped fashion in the lower right-hand corner of the space provided in the minute book and the closing bracket of "(1)" was in the seventh column of the minute book. The conviction and order of the District Justice appeared in the seventh column of the minute book as follows:—"Minor offence fit to be tried summarily. Accused consents to Jurisdiction, Guilty, Convicted and Sentenced to 6 months' imprisonment to date from 11.3.'66. Property to owner. John P. Feran."

On the same day a Warrant of Execution issued from the District Court and the prosecutor was detained thereunder. The Warrant recited the complaint that had been preferred against the prosecutor and the recital concluded with the words "contrary to section 26, Larceny Act, 1916", the Warrant also stated that "the Court being of opinion that the facts alleged/proved constitute (a) minor offence(s) fit to be tried summarily, and the accused, on having been informed by the Court of his right to be tried with a jury, not objecting to being tried summarily and having pleaded (not) guilty, an Order was made on the 21st day of March, 1966, by a Justice . . . ". On the 25th March, 1966, an alleged copy of the conviction and order of the District Justice was certified by the acting District Court Clerk and that copy, which recited the offence as having been laid contrary to s. 2 of the Act of 1916, was furnished to the prosecutor.

The prosecutor initiated these proceedings from Limerick Prison by writing the following letter, dated the 20th May, 1966, to the Registrar of the High Court:—"I, Michael Browne, apply for a writ of habeas corpus in that I am unlawfully detained in Limerick Prison. On the grounds that I was charged at Askeaton Court on the 21st March, 1964 (sic), with breaking and stealing property to the value of £388. I state that dealing with this charge the District Justice exceeded jurisdiction. I also apply for an order of certiorari on the grounds that the warrant holding me in Limerick Prison is invalidated, and in the event of the absence of a fresh warrant I should be set at liberty. I also state that the District Justice had not the power to try me on above charge or pass sentence, hence the warrant is invalid. I also propose to the Court if I get granted a conditional order of certiorari that the Court also grants me bail on my own bond until the case is fully decided." On the 26th May, 1966, the prosecutor's letter and the alleged copy of the District Justice's conviction and order were before the High Court (Murnaghan J.) and that Court granted the prosecutor a conditional order of certiorari which directed the District Justice to send, unless cause were shown to the contrary, his conviction and order dated the 21st March, 1966, to the High Court for the purpose of being quashed on the ground "that s. 2 of the Larceny Act, 1916, is not the appropriate section under which to make such conviction";on the same day the High Court also granted the prosecutor a conditional order of habeas corpus ad subjiciendum.The conditional orders were directed to and served on the Attorney General, the District Justice and the Governor of Limerick Prison and they all showed cause by filing affidavits.

Paragraphs 3, 4, 5 and 6, of the affidavit of Superintendent M. Fitzgerald, who was the officer in charge of the prosecution in the District Court and whose affidavit was filed on the 10th June, 1966, on behalf of the parties showing cause, was as follows:—

"3. The prosecutor herein was, on the 21st March, 1966, charged before District Justice Feran at the District Court at Askeaton in the County of Limerick with the following charges, namely:—

(a) That the prosecutor (as defendant) did between 10 o'clock p.m. on 7th March 1966 and 9 o'clock a.m. on the 8th March 1966 feloniously break and enter the lock-up Co-Operative Stores, Herbertstown, Hospital, in the County of Limerick, the property of Patrick O'Donoghue, there and did steal therein 134 Gents Shirts, value £131 0s. 0d., and 75 Gents Pants, value £196 17s. 6d. (total value £327 17s. 6d.), property of the said Patrick O'Donoghue; Section 26(1) Larceny Act, 1916.

(b) That between the times, dates and at the place stated in the previous charge herein, the prosecutor (as defendant) did feloniously receive the said property well knowing same to have been stolen or obtained under circumstances amounting to felony or misdemeanour; Section 33(1) Larceny Act 1916.

(c) That the prosecutor (as defendant) had unlawfully in his possession between 2 o'clock p.m. and 3 o'clock p.m. on 11th March 1966 at Chancery Street in the Dublin Metropolitan Division 134 Gents Shirts, value £131 0s. 0d., and 75 Gents Pants, value £196 17s. 6d. (total £327 17s. 6d.), same being reasonably suspected of having been stolen—Section 13 Criminal Justice Act, 1951."

"4. I say that the above-mentioned charges were duly read over to the prosecutor herein by District Justice Feran on the 21st of March, 1966, and I say that the said District Justice Feran informed the prosecutor that he had a right to plead to the charges before the District Court and to have same dealt with by him as District Justice presiding over the said Court, and the said District Justice also informed the prosecutor that if he wished he could go forward for trial and be dealt with by the Circuit Court at Limerick before a judge and jury."

"5. I say that after the said District Justice had informed the prosecutor as aforementioned, the prosecutor stated that he pleaded guilty, and wanted to be dealt with there, meaning that he wished to be dealt with by the District Court on the said date and by District Justice Feran."

"6. I say that when the prosecutor indicated that he wished to plead guilty to the charges, the second and third charges above mentioned were not proceeded with, and by consent the said charges were marked 'struck out,' and the District Justice thereupon entered a plea of guilty in respect of the first charge in his minute book, and sentenced the prosecutor to six months imprisonment from 11th March, 1966. I beg to refer to the certified copy of the entries in respect of the charges made by the learned District Justice in his minute book upon which marked with the letter "A" I have endorsed my name before the swearing hereof, and I say that the entries in the said minute book of the learned District Justice represent the judgment and order of the District Justice made on the said occasion, and I say that the prosecutor in relation to the first charge aforementioned was prosecuted and convicted pursuant to section 26(1) of the Larceny Act, 1916, and was not prosecuted or convicted pursuant to section 2 of the said Act."

The certified copy of the District Justice's conviction and order, exhibited in the affidavit of Superintendent M. Fitzgerald, was dated the 1st June, 1966, and was certified by the District Court Clerk; that copy of the conviction and order recited the material complaint to have been laid contrary to s. 26(1) of the Larceny Act, 1916, and continued:—"and, being of opinion that the facts alleged . . . constituted a minor offence fit to be tried summarily and the defendant not objecting to being so tried on being informed by me of his right to be so tried, I did adjudge that defendant pleads guilty, convicted and sentenced to six months imprisonment in Limerick Prison to date from date of arrest—the 11th March, 1966. Property to owners. John P. Feran."

On the 7th July, 1966, Mr. Concannon, solicitor, filed an affidavit on behalf of the prosecutor and paragraphs 4, 5 and 6 of that affidavit were as follows:—

"4. I refer to a Warrant of Execution herein when produced and I say that the signature thereon does not appear to be the signature of the District Justice.

5. I say that it also appears that the statutory provisions were not on the relevant minutes of the charges in the said District Justice's Minute Book at the time the Orders were purportedly recorded thereon.

6. I also say that the said District Justice had no jurisdiction to try the said charge in the said area of Askeaton or at all, that the provisions of section 1 (sic) of the Criminal Justice Act, 1951, were not complied with, and that the provisions of the District Court Rules, and in particular rule 39, were not complied with."

On the 15th July, 1966, the prosecutor's motion to have the conditional orders made absolute, notwithstanding cause shown, was heard before the President of the High Court (Davitt...