State (Pheasantry) Ltd v Donnelly

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 25 May 1982
• Neutral Citation: 1982 WJSC-HC 2560
• Court: High Court
• Docket Number: No. 62 S.S./1981
• Date: 25 May 1982

STATE (PHEASANTRY) v. DONNELLY

THE STATE AT THE PROSECUTION OF PHEASANTRY LIMITED

Prosecutor

- and -

DISTRICT JUSTICE DONNELLY AND BY ORDER THE ATTORNEY GENERAL

Respondents

1982 WJSC-HC 2560

No. 62 S.S./1981

1 Judgment of Miss Justice Carroll delivered the 25th day of May 1982.

2 The Prosecutor is the lessee of restaurant premises situate in the basement of No. 33 Lower Leeson Street, Dublin, for a term of 21 years from the 1st of January 1978 at the yearly rent of £5,000 per annum for the first five years and thereafter subject to rent reviews. There is a wine retailers on-licence attached to the premises. The lessor, Louis Murray, is the principle shareholder of the Prosecutor Company and is also nominee of the Company to hold the licence.

3 The Prosecutor was charged with various breaches of the Licensing Acts as follows:-

4 1. On the 2nd of July 1980 the Prosecutor was convicted on Count 5 of the ordinary six point licensing summons in respect of an offence committed on the 17th of November 1979 and was fined £40. There was no appeal against this conviction.

5 2. On the 2nd of July 1980 the Prosecutor was convicted on Count 5 of a similar summons in respect of an offence committed on the 15th of November 1979 and was fined £20. This conviction was appealed but was subsequently affirmed on Appeal by the Circuit Court on the 4th of November 1980.

6 3. On the 2nd of July 1980 the Prosecutor was convicted on Count 5 of a similar summons in respect of an offence committed on the 18th of November 1979 and was fined £40. This conviction was appealed and the appeal was allowed by the Circuit Court on the 4th of November 1980.

7 4. On the 10th of December 1980 the Prosecutor was convicted on Count 5 of a similar summons in respect of an offence committed on the 10th of May 1980 and was fined £40. The summons was originally returnable to the 1st of October 1980. It was then adjourned on the application of the Prosecutor's Counsel to the 10th of December when a further adjournment was refused. An appeal is pending in the Circuit Court in relation to this conviction.

8 5. On the 10th of December 1980 the Prosecutor was convicted on Counts 1 and 5 of a similar summons in respect of offences committed on the 24th of May 1980 and was fined £40 on each Count. The summons was originally returnable to the 29th of October 1980. It was then adjourned on the application of the Prosecutor's Counsel to the 10th of December 1980 when a further adjournment was refused. An appeal is pending in the Circuit Court in relation to this conviction.

9 6. On the 28th of January 1981 the Prosecutor was convicted on Count 5 of a similar summons in respect of an offence committed on the 30th of May 1980 and was fined £40. The summons was originally returnable to the 3rd of December 1980 and was adjourned on the application of the Prosecutor's Counsel to the 28th of January 1981 when a further adjournment was refused. An appeal is pending in the Circuit Court in relation to this conviction.

10 7. On the 28th of January 1981 the Prosecutor was convicted on Count 5 of a similar summons in respect of an offence committed on the 17th of October 1980 and was fined £40. An appeal is pending in the Circuit Court in relation to this conviction.

11 8. On the 28th of January 1981 the Prosecutor was convicted on Count 5 of a similar summons in respect of an offence committed on the 5th of December 1980 and was fined £40. An appeal is pending in the Circuit Court in relation to this conviction.

12 Adjournments were refused in respect of the three summonses heard on the 28th of January 1981.

13 During the course of 1980 Mr. Murray decided to sell the restaurant premises. In the month of December 1980 he advertised the premises for sale in the Press. At the time of swearing the grounding affidavit (the 3rd of February 1981) there was a draft contract with the proposed purchaser, Eagle Claw Limited, a company over which Mr. Murray says he has no controlling influence and no connection. The draft contract is not exhibited and no further details are known.

14 On the 20th of January 1981 the Prosecutor sought a licence from the Revenue Authority at the Customs House and was refused. At that date there were four convictions against the prosecutor, two of which dated from the 2nd of July 1980 and the other two from the 10th of December 1980. Subsequently there were the three further convictions on the 28th of January 1981.

15 In an affidavit Mr. Peter White as a valuer gave as his opinion that the lease of the restaurant premises would have an open market value of between £40,000 and £50,000 with the wine retailers on-licence. Without such a licence the premises were worth about £7,500 in his opinion.

16 The Respondent obtained a Conditional Order of Certiorari on 19th February 1981 against the convictions and orders made on 10th December 1980 and on the 28th January 1981 on two grounds, namely:-

17 1. That by refusing the adjournments to permit the sale of the restaurant premises the Learned District Justice was: acting without or in excess of jurisdiction and contrary to natural or constitutional justice having regard in particular to the forfeiture provisions contained in the Intoxicating Liquor Act 1927and

18 2. That the Learned District Justice in entering upon and determining the complaints was acting without or in excess of jurisdiction in determining summarily and without a jury offences other than minor offences.

19 Section 28 of the Intoxicating Liquor Act 1927provides as follows:-

20 2 "(1) Whenever the holder of a licence for the sale of intoxicating liquor by retail is convicted of an offence to which this part of the Act relates and such conviction is by virtue of this part of this Act recorded on such licence, and at the time of such recording two convictions (subsequent in date to the passing of this Act) are by virtue of this part of the Act recorded on such licence, such licence shall thereupon be forfeited.

21 (2) Where a licence is forfeited under this section no new licence shall at any time thereafter be granted in respect of the premises or any part of the premises to which such licence was attached."

22 In the case of Cohan and Others -v- Fusco ( 1967 IR 11) it was decided that Section 28 of the Intoxicating Liquor Act 1927applies to wine retailers on-licences.

23 Section 30 (1) of the Intoxicating Liquor Act 1927provides as follows:-

"Whenever on an application for a certificate for the transfer of a licence for the sale of intoxicating liquor by retail, the applicant at the time of such application satisfies the Court that the transfer is desired for the purpose of giving effect to a bona fide sale for money or money's worth of such licence and the premises to which the same is attached, the Court shall, if it grants such certificate, direct in and by such certificate that all (if any) offences then recorded on such licence under this part of this Act shall at the time of such transfer cease to be so recorded, and whenever such direction is so given every such offence shall at the time of the transfer of such licence pursuant to such certificate cease to be recorded on such licence and such licence shall be so transferred, freed and discharged from the records of such offences and shall thereafter have effect for all purposes as if such offences had never been recorded thereon."

24 The law applicable to wine retailers on-licences was reviewed in detail in the case of Cohan and Others -v- Fusco ( 1967 Irish Reports 11). A wine retailers on-licence is not obtained at the annual licensing session of the District Court. It is an excise licence and does not require the production of a certificate of the Circuit Court or District Court in order that it should be granted.

25 It was submitted on behalf of the Prosecutor:-

26 1. That the offences were not minor offences because the loss resulting from forfeiture was a punishment which by reason of its severity took the offences out of the category of minor offences and it would be contrary to Article 38 (2) of the Constitution for the offence to be tried by a District Justice.

27 2. That becuase the premises can never again be licensed by virtue of Section 28 (2) of the Intoxicating Liquor Act 1927if the forfeiture takes place, this constitutes an unjust attack on property contrary to Article 40 (3) of the Constitution.

28 3. That the Intoxicating Liquor Act 1927being a pre-1937 Statute, was not carried forward by the Constitution and therefore there is no presumption of constitutionality to support that Act.

29 4. That the Learned District Justice misdirected himself in refusing an adjournment to enable a bona fide purchaser to buy the premises with the licence before forfeiture.

30 The question of whether an offence, having regard to the penalty, is a minor offence capable of being tried summarily under Article 38 (2) has been dealt with in several cases which have been cited, viz Melling -v- O'Mathghamna 1962 Irish Reports 1, Conroy -v- the Attorney General and another 1965 Irish Reports 411, in re Haughey 1971 Irish Reports 217 Kostan -v- Ireland and the Attorney General (High Court 1977 Number 1809P unreported, McWilliam J. Judgment delivered 10th of February 1978) and Cullen -v- the Attorney General 1979 Irish Reports 394.

31 A case which is particularly in point is Conroy -v- Attorney General and others ( 1965 Irish Reports 411) which deals with an order of disqualification from holding a driving licence. In his judgment Mr. Justice Walsh says at page 436:-

"The primary consideration in determining whether an offence be a minor one or not is the punishment which it may attract. An offence which is in itself by ordinary standards and by its nature trivial and morally indifferent may, nevertheless, by the severity of the punishment it attracts, cease for the purposes of...