State (Ennis) v Farrell

• Jurisdiction: Ireland
• Judgment Date: 21 July 1966
• Date: 21 July 1966
• Docket Number: (1965. No. 4. S.S.)
• Court: Supreme Court

Supreme Court.

(1965. No. 4. S.S.)

The State (Ennis) v. Farrell

THE STATE (at the Prosecution of PATRICK DUDLEY ENNIS)

and

DISTRICT JUSTICE JOHN FARRELL

and In the Matter of an Application by Patrick Dudley Ennis for an Order of Prohibition

and In the Matter of the Courts (Supplemental Provisions) Acts 1961 and 1962

Common informer - Right of common informer to prosecute on indictable offence not triable summarily - Jurisdiction of District Justice - Prohibition - Criminal Justice (Administration) Act 1924 (No. 44 of 1924), s. 9;Criminal Justice Act, 1951 (No. 2 of 1951), ss. 2 and 3; Constitution of Ireland Article 30, sect. 3.

Notice of Motion.

On the 16th November, 1964, a District Court summons was issued on the complaint of Mr. Jeremiah Crean, as a common informer, charging the prosecutor, Mr. Patrick Dudley Ennis, as follows:—"that you the said defendant on the 26th day of March, 1963, at the Phibsborough Branch of the Royal Bank of Ireland Limited, Phibsborough Road, Dublin, within the said district did fraudulently convert to your own use and benefit certain property that is to say the sum of £312 10s. 0d. received by you for and on account of the said Jeremiah Crean who was at all material times the sole proprietor of the firm of Savoy Motors, 4 Rutland Place, Gardiner Row, in the City of Dublin, contrary to section 20, sub-section 1, of the Larceny Act, 1916."

The summons came on for hearing before District Justice Farrell in the District Court No. 1, Chancery Street, Dublin, at 10.30 a.m. on the 23rd December, 1964. Both parties appeared by solicitor and counsel. Counsel for Ennis submitted that the District Court had no jurisdiction to hear the case, since the offence alleged against him was an indictable offence and was not a scheduled offence under the Criminal Justice Act, 1951, and that the District Justice could not take depositions, in view of the provisions of s. 9, sub-s. 1, of the Criminal Justice (Administration) Act, 1924. Counsel who appeared for Jeremiah Crean contended that notwithstanding the provisions of s. 9, sub-s. 1, of the Criminal Justice Administration Act, 1924, the rights of a common informer were preserved and that the Court had jurisdiction to hear the case and to take depositions. After hearing arguments, the District Justice held that, notwithstanding the provisions of the Act of 1924, the rights of a common informer were still extant, that he could take depositions in the case, but that he had no power to proceed further or to return the defendant for trial unless the Attorney General took over the conduct of the proceedings. He adjourned the hearing of the case to a future date for the purpose of taking the depositions. On the 7th January, 1965, when the case again came on for hearing, counsel for Mr. Ennis indicated to the District Justice that he intended to apply to the High Court for an order of prohibition, to prohibit the District Justice from hearing the case on the ground of lack of jurisdiction, whereupon District Justice Farrell adjourned the case to be mentioned on the following 14th day of January. On that date Mr. Ennis was asked by the District Justice whether he was prepared to sign a plea of guilty and go forward for trial to the Circuit Court and Mr. Ennis, while maintaining that the District Justice had no jurisdiction in the case declined to enter such a plea. An amendment was then applied for on behalf of the complainant to substitute the figure of £50 for the figure of £312 10s. 0d. appearing in the summons so as to bring the charge within the limits of the jurisdiction of the District Court.

The District Justice declined to make any amendment and fixed further dates for the taking of depositions. On the 22nd January, 1965, a conditional order of prohibition was made in the High Court, prohibiting the District Justice from continuing, or further proceeding with, the hearing of the summons. No return was made by the District Justice. No return was made by Jeremiah Crean within the time limited by the conditional order but the time for showing cause was later extended by an order of Mr. Justice Murnaghan, dated the 26th March, 1965. Cause having been shown on behalf of Jeremiah Crean, the prosecutor, Patrick Dudley Ennis, moved the Court to make absolute the said conditional order, notwithstanding the cause shown.

A private individual may conduct a prosecution in respect of an indictable offence not triable summarily up to the receiving of informations and the return for trial. Thereafter the Attorney General becomes dominus litus and the private prosecutor must yield place to him.

So held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Haugh, Walsh and O'Keeffe JJ.).

Cur. adv. vult.

McLoughlin J.:—

On the 16th November, 1964, a District Court summons was issued on the complaint of Mr. Jeremiah Crean, as a common informer, charging the prosecutor, Mr. Patrick Dudley Ennis, as follows:—"that you the said defendant on the 26th day of March, 1963, at the Phibsborough Branch of the Royal Bank of Ireland Limited, Phibsborough Road, Dublin, within the said district did fraudulently convert to your own use and benefit certain property that is to say the sum of £312 10s. 0d. received by you for and on account of the said Jeremiah Crean who was at all material times the sole proprietor of the firm of Savoy Motors, 4 Rutland Place, Gardiner Row, in the City of Dublin, contrary to section 20, sub-section 1, of the Larceny Act, 1916."

The summons came on for hearing before District Justice Farrell in the District Court No. 1, Chancery Street, Dublin, at 10.30 a.m. on the 23rd December, 1964. Both parties appeared by solicitor and counsel. Mr. Bennett, counsel for Ennis, submitted that the District Court had no jurisdiction to hear the case, since the offence alleged against Ennis was an indictable offence, and was not a scheduled offence under the Criminal Justice Act, 1951, and that the District Justice could not take depositions, in view of the provisions of s. 9, sub-s. 1, of the Criminal Justice (Administration) Act, 1924. Mr. Adye-Curran, counsel who appeared for Jeremiah Crean, contended that notwithstanding the provisions of s. 9, sub-s. 1, of the Criminal Justice (Administration) Act, 1924, the rights of a common informer were preserved and that the Court had jurisdiction to hear the case and to take depositions. After hearing arguments the District Justice held that notwithstanding the provisions of the Act of 1924 the rights of a common informer were still extant, that he could take depositions in the case, but that he had no power to proceed further or return the defendant for trial unless the Attorney General took over the conduct of the proceedings and he adjourned the hearing of the case to a future date, for the purpose of taking the depositions. On the 7th January, 1965, when the case was again in the list Mr. Bennett indicated to the District Justice that he intended to apply to the High Court for an order of prohibition, to prohibit the District Justice from hearing the case, on the grounds of lack of jurisdiction, whereupon District Justice Farrell adjourned the case to be mentioned on the following 14th January. On that date Mr. Ennis was asked by the District Justice whether he was prepared to sign a plea of guilty and go forward for trial to the Circuit Court and Mr. Ennis, while maintaining that the Court had no jurisdiction in the case, declined to enter such a plea. The prosecutor in his affidavit avers that an amendment was then applied for on behalf of the complainant to substitute the figure of £50 for the figure £312 10s. 0d. appearing in the summons so as to bring the charge within the limits of the jurisdiction of the District Court. The solicitor for the complainant in an affidavit denies this and maintains that the application was to substitute for the offence charged the offence of obtaining by false pretences contrary to s. 10 of the Criminal Justice Act, 1951, a scheduled offence under that Act and, as such, triable summarily if the person charged so consents.

It is not necessary for me to resolve this difference, because the District Justice declined to make any amendment and fixed further dates for the taking of depositions. On the 22nd January, 1965, a conditional order of prohibition was made by me. No return was made by the District Justice. No return was made by Mr. Crean within the time limited by the conditional order but the time for showing cause by notice was later extended by an order of Mr. Justice Murnaghan, dated the 26th March, 1965.

The notice for showing cause is in these terms:—

"Take notice that Jeremiah Crean of 4, Gardiner Place, doth hereby show cause against the conditional order made herein and dated the 22nd day of January, 1965, on the grounds following:—

"1. That District Justice Farrell has jurisdiction to take depositions mentioned in the conditional order herein.

2. That section 9 [sic] of the Criminal Justice (Administration) Act, 1924, does apply to this case and not section 9 (1) of the Criminal Justice (Administration) Act, 1924.

3. By reason of section 30, sub-section 3, of the Constitution of 1936.

4. Because of the decision in the case of Wedick v.Osmond & Sons(1), approved by the Supreme Court inThe State (Cronin) v. Circuit Judge of the Western Circuit(2).

Dated this 18th day of March, 1965."

Sect. 9 of the Criminal Justice (Administration) Act, 1924, reads as follows:—

"9.—(1) All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney-General of Saorstát Eireann.

(2) Save where a criminal prosecution in a court of summary jurisdiction is prosecuted by a Minister, Department of State, or...