State (Tynan), The v Judge Sweeney

• Jurisdiction: Ireland
• Judgment Date: 04 November 1965
• Docket Number: (1964. No. 22 S.S.)
• Date: 04 November 1965
• Court: Supreme Court

The State (Tynan) v. Judge Sweeney.

THE STATE (at the Prosecution of RICHARD TYNAN)

and

Circuit Judge MICHAEL J. SWEENEY

(1964. No. 22 S.S.)

Supreme Court.

Certiorari - Jurisdiction - Circuit Court order estreating recognisance - Validity - Return for trial - Prosecutor admitted to bail by High Court - Sum of money lodged with recognisance for transmission to County Registrar of county in Midland Circuit - Recognisance requiring prosecutor to attend for trial in Eastern Circuit - Prosecutor's failure to surrender himself for trial - Arrest of prosecutor - Prosecutor convicted and sentenced to imprisonment in Portlaoise Prison - Estreatment of recognisance by Judge of Eastern Circuit - Want of jurisdiction - Fines Act, 1851 (14 & 15 Vict., c. 90), s. 10 -Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict., c. 93), s. 34.

The prosecutor was charged in the District Court at Dunshaughlin, County Meath, with larceny of cattle and with receiving the cattle knowing them to have been stolen or unlawfully obtained. He was returned for trial to the next sittings of the Circuit Court to be held at Trim, in the County of Meath, on the Eastern Circuit, on the 18th June, 1958. By order, dated the 30th May, 1958, the District Justice allowed the prosecutor to be released on bail pending his trial in his own recognisance of £100 and one surety of £100 or two sureties of £50. By order made in the High Court on the 5th June, 1958, Murnaghan J. varied the order as to bail as a result of which the prosecutor was admitted to bail in his own recognisance of £100 and on making a lodgment of £100 with the Governor of Mountjoy Prison for and on behalf of the District Court Clerk for the District Court Area of Dunshaughlin. This order was complied with and £100 was lodged as ordered. The prosecutor attended for his trial at Trim on the 18th June, 1958, when the hearing was adjourned until the sittings of the Court to be held in October, 1958. The prosecutor did not attend for trial in October, 1958, and the Circuit Judge issued a bench warrant for his arrest. The prosecutor was arrested and was brought before the Circuit Court at Trim in January, 1962, when at his request his trial was transferred to the Central Criminal Court, where he was subsequently tried, convicted, and sentenced to imprisonment. By an order made by Circuit Court Judge Deale, the Judge assigned to the Eastern Circuit, made at the sittings of the Circuit Court at Trim on the 8th May, 1962, it was ordered that the said sum of £100 lodged in Court in pursuance of the order of Murnaghan J. be paid out to the prosecutor. This order was subsequently set aside by Henchy J. on the ground that the order had been made without jurisdiction. By an order made by Circuit Court Judge Sweeney, sitting at Portlaoise, on the Midland Circuit, on the 11th March, 1964. it was ordered that the recognisance of £100 entered into by the prosecutor in pursuance of the order of Murnaghan J. be estreated and that the sum of £100 paid into Court by the prosecutor in pursuance of that order be paid to the Minister for Finance. On the 6th April, 1964, the prosecutor obtained a conditional order of certiorari directing Circuit Court Judge Sweeney to send before the High Court the said order of the 11th March, 1964, for the purpose of having the same quashed, unless cause were shown to the contrary on or before the 6th July, 1964. On the 30th October, 1964, the prosecutor moved the High Court to make the said conditional order absolute, notwithstanding cause shown. The High Court (Davitt P.) allowed the cause shown and discharged the conditional order. On appeal by the prosecutor to the Supreme Court it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh and Walsh JJ.) that Circuit Court Judge Deale had acted within his jurisdiction as Judge of the Eastern Circuit in making the order of the 8th May, 1962, and that Judge Sweeney did not have jurisdiction to make the order of the 11th March, 1964, made at the Sittings of the Circuit Court at Portlaoise, there being no jurisdiction in the Circuit Court Judge for the Midland Circuit to make the said order.

The cause shown was accordingly disallowed and the conditional order made absolute.

Certiorari.

Application to make absolute, notwithstanding cause shown, a conditional order of certiorari, obtained in the High Court on the 6th April, 1964, by the prosecutor, Richard Tynan, directing that an order of the 11th March, 1964, made by His Honour Judge Sweeney, sitting at Portlaoise, on the Midland Circuit, should be sent before the Court for the purpose of having the said order quashed.

The facts have been summarised in the head-note and appear fully in the judgment of Davitt P., post.

From the above decision the prosecutor appealed to the Supreme Court (2). The appeal was brought on the ground that the High Court was wrong in law and in fact 1, in deciding that the Court had jurisdiction to estreat the recognisance as a valid bond notwithstanding the fact that the applicant did not reside or carry on business within the Circuit Court Area;

2, In holding that the recognisance was valid notwithstanding the fact that it did not comply with the requirements of the Petty Sessions (Ireland) Act, 1851;

3, In holding that the recognisance was valid notwithstanding the fact that it read as if a Peace Commissioner had returned the applicant for trial;

4, In holding that the said recognisance was valid notwithstanding the fact that the conditions of the said recognisance were not correctly stated;

5, In holding that the recognisance was valid notwithstanding that the applicant was not returned for trial on count 3;

6, In holding that the recognisance was valid notwithstanding the fact that it was ultra vires the jurisdiction of the County Registrar of the County of Meath;

7, In holding that the fact that the applicant, by taking advantage of the said recognisance, precluded himself from challenging the validity thereof;

8, In holding that the title of the said recognisance was valid;

9, In holding that the estreating of the said recognisance did not disregard the essentials of justice.

Cur. adv. vult.

Davitt P. :—

The essential facts of this matter appear to me to be as follows: the prosecutor, Richard Tynan, was charged before District Justice O'Grady, at Dunshaughlin, with certain indictable offences relating to cattle. He was returned in custody for trial to the Circuit Court sittings to be held at Trim on the 18th June, 1958. He was subsequently admitted to bail by this Court; and while in Mountjoy Prison entered into a recognisance before Michael Donnelly, Peace Commissioner, as a result of which he was released...