State (Kiernan), The v District Justice de Burca

• Jurisdiction: Ireland
• Judgment Date: 01 January 1965
• Date: 01 January 1965
• Court: Supreme Court

High Court.

Supreme Court.

The State (Kiernan) v. District Justice de Burca.

THE STATE (at the Prosecution of PAUL KIERNAN)

and

DISTRICT JUSTICE TOMAS DE BURCA and HIS HONOUR JUDGE JOHN J. DURCAN. In the Matter of the Courts of Justice Acts, 1921 to 1953 (1)

Criminal law - Conviction of offence in District Court - Prosecutor fined but no order for imprisonment in default of payment of fine - Order for imprisonment subsequently recorded in Justice's Minute Book - Appeal to Circuit Court - Appeal dismissed - Order made confirming fine and providing for amount of expenses to be paid by prosecutor - No order for imprisonment in default of payment of fine - Imprisonment in default inserted in order of the Circuit Court as made up - Order in a criminal case not severable - Certiorari.

Certiorari.

The prosecutor, Paul Kiernan, was charged on the 11th October at Galway District Court, before District Justice Tomas de Burca, that at Tuam in the County of Galway on the 2nd March, 1957, he unlawfully sent to one, Mrs. Nora Moloney, of Blackfox, Taugheen, Claremorris, Co. Mayo, a postal packet, namely, an open postcard, having thereon words of a grossly offensive character contrary to s. 63 of

the Post Office Act, 1908. The District Justice found the prosecutor guilty of the offence and fined him £10 with £15 expenses. The prosecutor appealed to the Circuit Court against the conviction and sentence and, having heard evidence, the Circuit Court Judge (Judge Durcan) affirmed the order of the District Justice. The order of the Circuit Court, as made up, provided for six months' imprisonment in default of payment of the fine, but at the hearing of these proceedings in the Supreme Court it was conceded by counsel for the Attorney General that no such order was made in Court by the Circuit Court Judge.

At the hearing of the appeal in the Circuit Court the District Court clerk of the Galway District Court gave evidence and produced the original entry in the Justice's Minute Book. He stated in evidence that the entry of the conviction and sentence in the Minute Book was made by him and not by the District Justice and that it was later signed by the District Justice. He further said that the entry of the conviction and sentence was made by him by impressing on the Justice's Minute Book a stamped entry of the conviction and sentence. The prosecutor claimed that the entry differed from what was pronounced by the District Justice in open Court in that the District Justice did not order that the fine or expenses should be paid within any particular time nor did he order imprisonment in default of payment. He said that the District Justice did not order that he should pay £15 in respect of that offence but ordered that he pay £30 expenses in respect of that and another offence of which he had been convicted in the said District Court and that the District Justice did not apportion the sum of £30 between the two offences of which he was convicted. The prosecutor now sought an order of certiorari ad subjiciendum, to bring up for the purpose of being quashed the said orders of the District Court and the Circuit Court.

A conditional order of certiorari ad subjiciendum was granted by Teevan J. on the 10th April, 1958, upon the grounds 1, that the said entry in the Justice's Minute Book and the said order of the said District Justice failed to show jurisdiction on their face in that the applicant resided outside the Galway District Court Area and in that the offence charged was alleged to have been committed outside the Galway District Area;

2, That the entry in the Justice's Minute Book and the order of the District Justice failed to show jurisdiction on their face in that they did not comply with the requirements of the statute or common law for the recording of a conviction and sentence;

3, That the said entry in the Justice's Minute Book and the order of the District Justice were null and void and made without and in excess of jurisdiction in that they failed to comply with the provisions of s. 21, sub-ss. 1 and 2, of the Criminal Justice Act, 1951, and Rule 84 (1) of the District Court Rules, 1948, as amended by Rule 9 of the District Court Rules, 1955, in that the District Justice did not enter in the Minute Book the effect of the decision;

4, That the entry in the Justice's Minute Book and the order of the District Justice were null and void in that the sentence recorded therein was different from that pronounced by the District Justice in open Court;

5, That the order of the Circuit Court made on the 3rd April, 1958, affirming the conviction and order of the District Court was invalid in that it purported to affirm the conviction and order of the District Court which for the reasons hereinbefore set forth, or any of them, were themselves invalid.

The prosecutor was convicted in the District Court at Galway on the 11th October, 1957, of offences under the Post Office Acts. A fine was imposed but no provision was made by the District Justice in his order, as made in Court, for imprisonment in default of payment. Subsequently, the District Justice recorded in his Minute Book a stated number of days for the payment of the fine and a term of imprisonment in default of such payment. The defendant appealed to the Circuit Court. The Circuit Court Judge affirmed the order of the District Justice, confirmed the fine, and fixed a sum for expenses. When making his order in Court he did not provide for any term of imprisonment in default of payment of the fine. However, his order when made up provided for imprisonment for six months in default of payment of the fine; it appeared that this additional provision had been inserted by the County Registrar. The prosecution thereupon applied for, and obtained, in the High Court a conditional order of certiorari. On the application to make absolute the said conditional order, it was

Held by the High Court (Davitt P., Haugh and Dixon JJ.), 1, that the District Court order was made in disregard of fundamental rules and principles sufficient to amount to an abuse of jurisdiction which enabled the Court to quash the entry in the Minute Book of conviction and sentence even though it appeared to be good on its face;

2, That the order of the Circuit Court Judge made on appeal was good on its face, and in respect of it the cause shown should be allowed.

Accordingly, no purpose would be served by quashing the order of the District Court since there was a perfectly good order of the Circuit Court in its place;

On an appeal by the prosecutor it was

Held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore, Ó Dálaigh ó dálaigh and Maguire JJ.) 1, that as the order made by the County Registrar did not represent what the Circuit Court Judge said in Court, the said order could not stand;

2, That the order of the Circuit Court in a criminal matter is not severable, and, therefore, the whole order was bad.

Accordingly the cause shown was disallowed and the conditional order ofcertiorari was made absolute and the prosecutor was awarded costs against the Attorney General in both the High Court and the Supreme Court.

Cur adv. vult.

Davitt P. :—

The relevant facts of this matter appear to be briefly as follows:

The prosecutor, Paul Kiernan, who at all material times resided at Headford in the County of Galway, called on the 30th August, 1957, to see Detective Sergeant Ó Buadain ó buadainat the Gárda Siochana Station in Galway. Following an interview he was taken into custody, charged with certain offences, and brought before a Peace Commissioner who remanded him on bail to appear before the District Court sitting in Galway on the 5th September following. After some adjournments and further remands on bail, the charges against him came on for hearing at Galway before District Justice de Burca on the 11th October.

The charges preferred against him, on the complaint of the Attorney General, were 1, that at Galway on the 29th July, 1957, he had forged a telegram addressed to Lieutenant Catherine Maloney 7424 U.S.A.F. Hospital, Bitburg, Eifel, Germany, contrary to s. 11 of the Post Office Protection Act, 1884; 2, that on the same date he had uttered the same telegram knowing it to be forged; 3, that at Tuam on the 2nd March, 1957, he had unlawfully sent to Mrs. Nora Maloney of Claremorris a postcard having thereon words of a grossly offensive character contrary to s. 63 of the Post Office Act, 1908; and 4, that on several occasions he had used language and had been guilty of conduct towards Mrs. Maloney which was calculated to lead to a breach of the peace.

After hearing evidence the District Justice convicted the prosecutor on the second and third charges, dismissed the first charge, and struck out the fourth. He imposed a fine of £10 on each charge on which he convicted. He allowed £30 to cover the expenses in these two charges. This was his decision as pronounced in open Court on the conclusion of the hearing.

There is in use in the Galway District Court a rubber stamp which is used to impress in the seventh and last column in the Justice's Minute Book the effect of his decision. The impression left is in the Irish language and may be translated as follows:—"The defendant is convicted of the charge made against him. He is ordered to pay a fine of £………… within ............. days. In default of payment within ……… days he is ordered to be imprisoned in Limerick Prison for …………" When the District Justice had pronounced his decision the District Court Clerk, Mr. Tomas MacEnri, impressed this stamp in the seventh column, opposite the entries relating to the second and third charges, numbered in the Minute Book 34 and 35. He appears to have filled in some of the blanks in pencil and some in ink so that the entry as regards 34 was to the effect that the defendant was fined £10 and some amount for expenses which he was to pay within eight days or be imprisoned in default...