State (Roche) v Delap

JudgeHenchy J.
Judgment Date11 July 1980
Neutral Citation1980 WJSC-SC 1690
CourtSupreme Court
Docket Number[1979 No. 178 SS.]
Date11 July 1980

1980 WJSC-SC 1690


Henchy J.

Griffin J.

Parke J.

No. 178 S.S./1979
No. 171/1979
State (ROCHE) v. DELAP

Judgment of Henchy J. delivered the 11th JULY 1980. [nem. Diss]


The appellant in this appeal is District Justice Delap. He is appealing against an absolute order of certiorari that was granted for the purpose of quashing a conviction by him of Mark Roche ("the prosecutor"). The conviction is dated the 21 September 1978. It records that he was charged with feloniously receiving cigarettes valued £358.19 knowing them to have been stolen, contrary to s. 33(1) of the Larceny Act, 1916; that the District Justice was of the opinion that the facts alleged constituted a minor offence fit to be tried summarily; that the prosecutor, having been informed of his right to be tried with a jury, did not object to being tried summarily; that the prosecutor was convicted; and that he was sentenced to detention in St. Patrick's Institution for twelve months.


The prosecutor appealed to the Circuit Court. After some adjournments the appeal eventually came on for hearing before Mr. Justice Neylon, President of the Circuit Court. It does not appear in the affidavit sworn on behalf of the prosecutor in the present proceedings, but his counsel has informed us that the Circuit Judge actually entered on the hearing of the appeal, having been told that the appeal would be only against sentence, and that he heard evidence from the prosecuting Garda. It seems that at some stage of the hearing of the appeal the Circuit Judge observed that the conviction did not disclose on its face the basis of the jurisdiction of the District Justice to sentence the prosecutor to detention in St. Patrick's Institution. It was pointed out to him that, if necessary, when he had completed the hearing, he would have power to amend the order of conviction and sentence. But he refused to do so. Instead, he adjourned the hearing of the appeal, so as to enable the prosecutor to bring certiorari proceedings in the High Court to quash the order of the District Court.


A conditional order of certiorari was applied for and granted on the 5 April 1979. This was over six months after the conviction; whereas, to comply with 0. 84, r. 10 of the Rules of the Superior Courts, such order should have been got within six months of the conviction. This point, however, was not taken on behalf of the District Justice, either in the High Court or in this Court, so I do not base ray judgment on it. The ground on which the conditional order was granted was that the conviction was bad on...

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