State (Clancy) v Wine

• Jurisdiction: Ireland
• Judgment Date: 01 January 1980
• Neutral Citation: 1978 WJSC-HC 129
• Date: 01 January 1980
• Docket Number: [1978 No. 273 SS.],1978/273 S.S.
• Court: High Court

1978 WJSC-HC 129

THE HIGH COURT

1978/273 S.S.

1978/604 S.S.

State (CLANCY) v. WINE

THE STATE DERMOT CLANCY

.v.

DISTRICT JUSTICE HUBERT WINE

THE STATE PATRICK McCoy

.v.

DISTRICT JUSTICE HUBERT WINE

1 Judgment of the President delivered the 12th day of February 1979

2 These are two applications to make absolute notwithstanding cause shown two separate conditional Orders of certiorari granted by the High Court. Each case is identical on the facts and both by agreement were argued together before me and both will be ruled by a single Judgment.

3 The conditional Orders had been granted by Mr. Justice D'Arcy in each case in relation to the conviction of the Prosecutor upon a summary charge of assault contrary to common law and the imposition pursuant to that conviction of a sentence of five months' imprisonment.

4 The conditional Orders were granted upon the grounds set out in paragraph 4 of the affidavit of the Prosecutor in each case and those grounds were:

5 a A. That the Respondent failed to satisfy himself properly upon inquiry or at all, that the facts grounding the charge constituted a minor offence.

6 b B. That the Respondent had no jurisdiction to hear the charge.

7 c C. That the Respondent failed to put the Prosecutor on his election as to where be wished to have the case tried and,

8 d D. That if the Respondent had jurisdiction to hear the case, he failed to exercise his discretion as to whether to accept such jurisdiction in a proper and judicial manner.

9 Upon the matter coming first for hearing before me, Counsel on behalf of the Prosecutors contended that on the evidence which was adduced before the Learned District Justice that it would have been impossible for the Learned District Justice to have reached a conclusion other than that the offence was not a minor offence or was not an offence fit to be tried summarily.

10 Although that appeared to be outside the grounds set out in the original affidavit and upon which the conditional Order of certiorari was granted, in the interests of justice I permitted the Prosecutors in each case to file a further affidavit.

11 The Prosecutor Dermot Clancy did file such a further affidavit dealing exclusively with the injuries alleged to have been sustained by the injured party Peter Wynn and their consequences upon him and this affidavit was by the consent of the parties adopted as part of his proceedings by the other Prosecutor Dermot McCoy.

12 The Respondent showed cause but did not file any affidavit and accordingly the facts out of which this matter now arises are as follows:

13 Each of the Prosecutors appeared before District Justice Hubert Wine having been served with a summons alleging that they had unlawfully assaulted one Peter Wynn contrary to common Law. The matter was heard before the Learned District Justice on the 24th of November, the 14th of December and the 22nd of December of 1977. It is agreed that at no time did the Learned District Justice inform either of the Prosecutors that the charge was one that could be dealt with on indictment nor were either of the Prosecutors asked in which venue they wished to be tried. Furthermore, the Learned District Justice did not conduct any inquiry as to the nature of the allegations against either of the Prosecutors prior to embarking upon the hearing of the case nor did he inquire as to the nature of the injuries alleged to have been inflicted on the injured party Peter Wynn. On the 22nd of December 1977 the Learned District Justice convicted each of the Prosecutors and imposed on each of them a sentence of five months' imprisonment.

14 The evidence given at the summary trial of the offences against the two Prosecutors by the injured party Mr. Peter Wynn was that as a result of the injuries suffered by him in the alleged assault, that he had been hospitalized for a period of ten days and that he was still at the trial of the Summons, receiving medical attention. This witness also apparently alleged that he had a continuing injury to his eye which had been damaged to an extent which was yet unascertained but that he had been medically advised that this would certainly lead to material lessening of the usefulness of the eye and might lead to total sight loss in it. The injured party also complained that as a result of the injuries he had been unable to work from the date of the incident up to the hearing of the trial.

15 The apparent jurisdiction of the Learned District Justice to hear and try this offence as a summary offence is contained in the provisions of Section 42 of the Offences Against The Person Act 1861 as amended by Section 11 of the Criminal Justice Act 1951.

16 Section 42 of the Act of 1861 provides:

"Where any person shall unlawfully assault or beat any other person, two justices of the peace upon complaint by or on behalf of the party aggrieved may hear and determine such offence and the offender shall, upon conviction thereof before them at the discretion of the justices, either be committed to the common jail or house of correction there to be imprisoned with or without hard labour for any term not exceeding two months, or else shall forfeit and pay such fine as shall appear to them to be meet not exceeding, together with costs if ordered, the sum of £5.00." Section 11 of the Criminal Justice Act 1951provides as follows: "Sub-section 1. (1) in this section reference to common assault and battery are too offences under Section 42 of the Offences Against The Person Act 1861

(2) a person convicted of common assault or battery shall be liable to a fine not exceeding fifty pounds or at the discretion of the Court imprisonment for a term not exceeding six months.

(3) common assault and battery may be summarily prosecuted on complaint made by or on behalf of the aggrieved person or otherwise."

17 In a Judgment delivered by me on the 29th of November 1976 on a case stated in the Attorney General at the suit of Superintendent O'Connor versus Daniel O'Reilly which is unreported I decided that there were two methods of prosecuting an offence of assault contrary to common law, the first being by way of a summary prosecution pursuant to section 42 of the Act of 1861 as amended by Section 11 of the Act of 1951 a method providing for a prosecution which upon conviction had a maximum penalty of six months imprisonment or a fine not exceeding fifty pounds. The second possible method of prosecution for the same offence was pursuant to Section 47 of the Offences Against the Person Act 1861 upon indictment the maximum penalty being imprisonment for any term not exceeding one year.

18 I also there held that the question as to which method of prosecution was availed of was at the choice of the Complainant or Prosecutor and that the accused person had not got the right to choose as between summary prosecution or prosecution upon indictment. No contention had been made in that case before me that any question of a constitutional right on the part of the Defendant to a trial by jury arose nor did any point arise in that case as to the effect upon my decision or upon the charge there arising of the provisions of Section 46 of the Offences Against the Person Act 1861.

19 In so far as one of the grounds for the granting of a...