State (de Burca) v O hUadhaigh

• Jurisdiction: Ireland
• Judgment Date: 05 April 1976
• Date: 05 April 1976
• Docket Number: [1970 No.
• Court: Supreme Court

High Court

Supreme Court

[1970 No. 256 SS.]

The State (de Burca) v. O hUadhaigh

The State (at the Prosecution of Máirín de Burca)

and

Robert O hUadhaigh and Michael O'Donovan

District Court - Order - Mistake - Criminal case - Sentence - Judicial shorthand - Conviction and sentence not severable where sentence quashed on certiorari.

Certiorari

On the 8th February, 1971, O'Keeffe P. made an order on the application of Máirín de Burca (the prosecutrix) directing that an order of certiorari should issue quashing the entries in certain charge sheets "purporting to record in each case the imposition of a sentence of three months imprisonment,"and directing that upon return the same be quashed "to that extent" without further motion or order.

The second respondent had been the complainant in certain criminal proceedings in the District Court which had resulted (a) in the prosecutrix being convicted by the District Justice (the first respondent) of certain summary offences and (b) in the mistaken entry of "three months imprisonment"in the appropriate charge sheets as a record of the sentences imposed instead of "two months imprisonment."

On the 4th June, 1971, the second respondent issued notice of his intention to apply to the first respondent and to require him to conclude the criminal proceedings "by making the correct and appropriate entry of the sentence imposed on each of the charge sheets." On the 25th April, 1972, the prosecutrix obtained from the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and FitzGerald JJ.) a conditional order of prohibition preventing the first respondent from proceeding with the application of the second respondent, unless cause were shown to the contrary. The respondents showed cause by notice dated the 23rd May, 1972. The prosecutrix applied to the High Court for an order absolute, notwithstanding the cause shown by the respondents, and the application was heard by Pringle J. on the 11th January, 1973.

The prosecutrix appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on 24th March, 1976.

Two complaints were heard in the District Court each charging the prosecutrix with having committed a summary offence. She was convicted on each charge by the District Justice who sentenced her to two concurrent sentences of two months imprisonment. By mistake the District Justice entered the sentence on each charge sheet as "three months imprisonment." Further, the District Justice failed to enter in the second charge sheet the fact of the conviction. The entry in each charge sheet relating to sentence was quashed on certiorari and the complainant then applied to the respondent District Justice to enter the correct sentence in each charge sheet. The prosecutrix obtained a conditional order of prohibition preventing the District Justice, unless cause were shown to the contrary, from correcting the entries in the charge sheets relating to the sentences. The prosecutrix applied to the High Court for an order absolute, notwithstanding the cause shown by the respondents.

Held by Pringle J., in allowing the cause shown and in discharging the conditional order, that the District Justice had jurisdiction to make the correct entries and a duty to do so.

On appeal by the prosecutrix it was

Held by the Supreme Court (Henchy, Griffin and Kenny JJ.), in allowing the appeal, 1, that the order of certiorari, although expressly limited to quashing the entries relating to the sentences, had the effect in law of quashing the convictions as well as the sentences.

2. That the entry in the second charge sheet would not have been invalid on the ground that it failed to record a conviction, since the phrase "three months imprisonment" would have been treated by the court as a compendious method of recording the conviction and the sentence.

Cur. adv. vult.

Pringle J. 12th February, 1973

This is an application by the prosecutrix to make absolute, notwithstanding cause shown, a conditional order of prohibition made by the Supreme Court on the 25th April, 1972, on appeal from the President of the High Court. That order prohibited the respondent District Justice, unless cause was shown to the contrary, from proceeding on foot of a notice of motion dated the 4th June, 1971, and served by the second respondent who had been the complainant in three prosecutions against the prosecutrix in the District Court. By notice dated the 23rd May, 1972, cause was shown by both the respondents.

The prosecutrix was convicted in the District Court in Dublin on the 22nd June, 1970, on three charges under s. 52 of the Malicious Damage Act, 1861; she was sentenced to two months imprisonment on each charge—the sentences to run concurrently.

Section 21, sub-s. 1...