State, The (Kennedy), v Little

• Jurisdiction: Ireland
• Judgment Date: 13 November 1931
• Date: 13 November 1931
• Court: High Court (Irish Free State)

High Court.

The State (Kennedy) v. Little

THE STATE, at the Prosecution of MICHAEL KENNEDY

and

EDWARD J. LITTLE, District Justice, and in the MATTER of the COURTS OF JUSTICE ACT, 1924 (1)

Jurisdiction - Fugitive offender - Person resident in Irish Free State - Charge of obtaining money by false pretences in Canada - Canadian warrant to apprehend sent to Irish Free State - Warrant endorsed by President of the High Court - Alleged fugitive apprehended thereunder - Prohibition to restrain proceedings - Fugitive Offenders Act, 1881 -Whether an Act in force in Irish Free State - Scope of Article 73 of the Constitution - Validity of warrant - Whether President of the High Court a "Judge of a Superior Court" within the meaning of the Fugitive Offenders Act - Jurisdiction of District Justice - 44 & 45 Vict. c. 69, sects. 3, 5, 30, 39 - 13 Geo. 5, c. 1, sects. 1, 3, Sch. I - 13 Geo. 5,c. 2, sects. 1, 6 - No. 1 of 1922, sect. 2; Sch. I, Arts. 2, 6, 70, 73, 75, 78;Sch. II, Art. 1 - No. 2 of 1922 - No. 10 of 1924, sects. 4, 17.

Prohibition.

The applicant, Michael Kennedy, obtained on the 18th August, 1930, a conditional order prohibiting District Justice Little from further proceeding in the matter of an application which had been made to the said District Justice by the Attorney-General of the Irish Free State under the Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 69) against the applicant, who was charged with "having on or about the 15th day of June, 1928, committed the offence of obtaining the sum of 3,000 dollars by false pretences at Big Valley, Province Alberta, in the Dominion of Canada."

The conditional order was obtained on the affidavit of the applicant, in which, having stated that he was then residing at St. Margaret's, Dalkey, Co. Dublin, and was a contractor, he continued as follows:—

"1. On the 17th of July, 1930, I was apprehended at Dalkey aforesaid by one, William Gibney, a Detective Sergeant of the Gárda Síochana, on a provisional warrant of arrest issued under the Fugitive Offenders Act, 1881, by T. G. O'Sullivan, a Justice of the District Court of Justice assigned to the Metropolitan District No. 31. [He made an exhibit of a copy of the provisional warrant.]

2. The said provisional warrant was issued upon the information of the said William Gibney, sworn on the 16th of July, 1930, praying that a provisional warrant for my arrest might issue under sect. 4 of the Fugitive Offenders Act, 1881, on the grounds that the said William Gibney had received information, and believed, that I, this deponent, was accused of having on or about the 15th of June, 1928, committed the offence of obtaining the sum of 3,000 dollars by false pretences at Big Valley, Province of Alberta, in the Dominion of Canada. [He made an exhibit of a copy of the information.]

3. After being so apprehended, I was on the said 17th of July, 1930, brought before Edward J. Little, one of the Justices of the said District Court, assigned to the said Metropolitan District, charged with the said alleged offence, and by him remanded on bail for one week, and further remanded on bail for one week, on the 24th July and on the 31st of July, 1930, respectively.

4. On the 7th of August, 1930, I was again brought before the said Edward J. Little upon a warrant in respect of the same alleged offence, purporting to have been issued on the 4th of May, 1929, by one, G. E. Sanders, described therein as a 'Police Magistrate' in and for the City of Calgary and Province of Alberta (both of which places are situated in the Dominion of Canada), and to be endorsed for execution by the President of the High Court. [He made an exhibit of a copy of the warrant.]

5. The said Justice, having taken formal evidence that the said William Gibney held the two warrants aforesaid and of my arrest, was about to deal with me upon the application of the Attorney-General as a fugitive apprehended under the Fugitive Offenders Act, 1881, and to receive depositions for the purpose of the said Act, when through my counsel I raised the question of the validity in Saorstát Éireann éireann of the said Act, having regard to the provisions of the Constitution, and submitted that the said Act is not a law in force in Saorstát Éireann éireann,and called upon the learned Justice to decline jurisdiction accordingly.

6. Certain Canadian depositions were then put in evidence formally, counsel on my behalf objecting, and the learned Justice determined to remand me on bail and stay the proceedings until the 23rd of October, 1930, upon my under-taking through my counsel forthwith to apply to this Honourable Court for an order prohibiting the learned Justice from further proceeding in the matter of the said application under the Fugitive Offenders Act, 1881, and I now stand remanded on the said charge.

7. Accordingly, I respectfully pray that this Honourable Court may be pleased to grant me such relief as was formerly granted by writ of prohibition, and I rely upon the grounds following:—

(a) That I have in the District Court raised the question of the validity of a law, having regard to the provisions of the Constitution;

(b) That the Fugitive Offenders Act, 1881, is not a law in force in Saorstát Éireann; éireann;

(c) That the said warrant purporting to have been issued on the 4th of May, 1929, under the hand of one, G. E. Sanders, a Police Magistrate in and for the City of Calgary and Province of Alberta in the Dominion of Canada, fails to show jurisdiction and is bad on its face;

(d) That a Judge of the High Court of Justice in Saorstát Éireann éireann is not a "Judge of a Superior Court" within the meaning of the Fugitive Offenders Act, 1881, for the purpose of the endorsement of a warrant under the said Act; and

(e) That the District Court has no jurisdiction to deal with the said application under the Fugitive Offenders Act, 1881.

8. The present application is urgent, because I am innocent of the said charge, and am a citizen of Saorstát Éireann éireann, domiciled in Saorstát Éireann éireann, where I am established and reside with my wife and family, and because I am seriously hampered and prejudiced by the pendency of the said belated application at a moment when I am successfully developing extensive business interests acquired by me in Saorstát Éireann éireannin which considerable labour is employed and capital involved and which I am actively engaged in directing at the present time."

The grounds upon which the conditional order was granted were the same as those set out in par. 7 of the foregoing affidavit.

Cause was shown against making the said conditional order absolute by the filing of two affidavits, one by District Justice Little and the other by Joseph P. Walsh.

The affidavit of District Justice Little was made on the 3rd September, 1930, and in it he merely made exhibits of the following documents: the information of Sergeant William Gibney, referred to in par. 2 of the applicant's affidavit; the provisional warrant referred to in par. 1 of the said affidavit; also the three depositions made by the said Sergeant Gibney and the documents exhibited therein; the deposition of Thomas Clarke, an assistant solicitor in the office of the Chief State Solicitor of the Irish Free State (who had produced in Court a file of documents sealed with the seal of the Governor-General of Canada); and a certified copy of the charge sheet containing particulars of the said proceedings against the applicant.

The affidavit made by Joseph P. Walshe, the Secretary of the Department of External Affairs for the Irish Free State, stated that on the 14th July, 1930, a code telegram was received in the Department of External Affairs from the Government of Canada with reference to the provisional arrest under the provisions of the Fugitive Offenders Act, 1881, of the said Michael Kennedy (the applicant)—a copy of a decode of the said telegram being exhibited in the affidavit. And that on the 24th July, 1930, a further code telegram was received in the said Department from the Canadian Government with reference to the said Michael Kennedy—a copy of a decode of this telegram being also exhibited. The deponent further stated that on the 5th August, 1930, the file of documents exhibited in the said deposition of Thomas Clarke was received from the Canadian Government, together with a covering letter, dated the 23rd July, 1930, and this letter was also exhibited in the affidavit.

The material portions of the various documents referred to in the said affidavits are sufficiently stated in the judgment of Johnston J.

A warrant was issued by a magistrate in Canada on 14th May, 1929, for the arrest of M. K., therein described as "of Dublin, in the Irish Free State," who was charged with having obtained on 15th June, 1928, in Canada a sum of money by false pretences. This warrant was forwarded by the Canadian Government to the Department of External Affairs of the Irish Free State; it was endorsed under sect. 3 of the Fugitive Offenders Act, 1881, by the President of the High Court, and he authorised the Civic Guard to execute it. M. K. was arrested on 17th July, 1930, in Dublin where he was then living, and subsequently charged before one of the District Justices of Dublin Metropolis on the endorsed warrant. The District Justice adjourned the case pending an application being made to the High Court for an order for prohibition to prohibit him from further proceeding in the matter. On the application to make absolute the conditional order for prohibition which M. K. had obtained:

Held by the High Court (Johnston, Hanna, and O'Byrne JJ.) that the Fugitive Offenders Act, 1881, continued to be of full force and effect in the Irish Free State by virtue of the provisions of Art. 73 of the Constitution, and that it was not inconsistent with the provisions of the Constitution.

Held also that the President of the High Court was "a Judge of a Superior Court" within the meaning of...