State (Nevin) v Tormey

• Jurisdiction: Ireland
• Judgment Date: 01 January 1976
• Date: 01 January 1976
• Docket Number: [1974 No. 124 SS.]
• Court: High Court

High Court

[1974 No. 124 SS.]

The State (Nevin) v. Tormey

The State (at the Prosecution of Christopher Nevin)

and

William A. Tormey

District Court - Jurisdiction - Scheduled offence - Summary trial - Preliminary decision by court that facts constitute minor offence - Conviction - Duplicity - Malicious Damage Act, 1861 (24 & 25 Vict. c. 97), s. 52 - Criminal Justice Act, 1951 (No. 2), s. 2.

Certiorari.

On the 13th May, 1974, the prosecutor, Christopher Nevin, was granted by the High Court (O'Higgins J.) four conditional orders of certiorari directing respectively that four orders of conviction made in the District Court by the respondent District Justice on the 31st January, 1974, be quashed unless cause was shown to the contrary. The respondent showed cause on the 24th June, 1974. The prosecutor then applied to the High Court for absolute orders of certiorari, notwithstanding the cause shown, and the application was heard by Butler J. on the 15th January, 1975. when judgment was reserved.

Section 2, sub-s. 2(a) of the Criminal Justice Act, 1951, states that the District Court "may try summarily" a person charged with a scheduled offence if (inter alia) the court "is of opinion that the facts proved or alleged" constitute a minor offence fit to be so tried. An accused was tried summarily in the District Court on a charge that he had committed a scheduled offence; he was convicted of that offence and sentenced. The trial of the accused for the scheduled offence commenced while the District Justice was still unaware of the facts or alleged facts of that offence; the order of conviction made by the District Justice recited that he had formed the opinion that "the facts proved" constituted a minor offence fit to be tried summarily. On the same occasion the accused was tried summarily and convicted on a charge that he had "wilfully or maliciously committed damage," being an offence contrary to s. 52 of the Malicious Damage Act, 1861, which was not a scheduled offence. The accused obtained in the High Court conditional orders of certiorari to quash the convictions. At the hearing of his application for orders absolute, notwithstanding the cause shown by the District Justice, it was

Held by Butler J. that it was a condition precedent to the existence of jurisdiction to try summarily in the District Court a person charged with a scheduled offence that the District Justice should have duly formed the opinion mentioned in s. 2, sub-s. 2(a), of the Act of 1951; and that the first conditional order should be made absolute.

The State (Keohane) v. Cork Circuit Court Judge [1946] I.R. 364 considered.

2. That, if he wished to form such opinion without hearing evidence, the District Justice should consider the facts alleged by the prosecution.

3. That the conviction under s. 52 of the Act of 1861 was not invalidated on the ground of duplicity as the offence charged was a single offence; and that the second conditional order should be discharged.

Cur. adv. vult.

Butler J. 3rd February, 1975

At a special sitting of the District Court held at Mullingar on the 31st January, 1974, the prosecutor appeared on four charges; three of them alleged respectively that on the 17th November, 1973, he assaulted Joseph Joyce, Winifred Joyce and John Joyce thereby occasioning them actual bodily harm contrary to s. 47 of the Offences Against the Person Act, 1861, and the fourth charge alleged that on the same occasion he wilfully or maliciously committed damage to the amount of £20 to a car windscreen the property of John Joyce, contrary to s. 52 of the Malicious Damage Act, 1861.

Assault occasioning actual bodily harm is an indictable offence; it is also a scheduled offence within the meaning of the Criminal Justice Act, 1951. Malicious damage contrary to s. 52 of the Malicious Damage Act, 1861, is a summary offence.

The prosecutor pleaded not guilty to all four charges and they were all tried summarily by the District Justice. As regards the indictable offences, he did so in purported exercise of the jurisdiction conferred on the District Court by the Act of 1951. I shall refer later to the circumstances in which he did so. He convicted on all the charges and imposed appropriate penalties. On the 13th May, 1974, the prosecutor was granted conditional orders of certiorari to bring up the several orders relating to the convictions for the purpose of having them quashed. The present application is to have the conditional orders made absolute notwithstanding cause shown. I shall deal first with the indictable offences.

The conditional orders of certiorari in relation to the indictable offences state in each case...