State (Tynan) v Keane

Judgment Date10 August 1968
Date10 August 1968
Docket Number[1966. No. 107 SS.].
CourtSupreme Court

Supreme Court.

[1966. No. 107 SS.].
The State (Tynan) v. Keane
THE STATE (at the Prosecution of RICHARD TYNAN)

Criminal Law - Offence - Conviction - Imprisonment - Conviction quashed on certiorari - Further prosecution for same offence - Prohibition - Plea of autrefois convict - Prohibition refused.


The prosecutor, Richard Tynan, applied ex parte in the High Court for conditional orders of prohibition forbidding District Justice Michael J. Keane to proceed with the hearing of two complaints by the Attorney General that the prosecutor had committed two common assaults on the 27th June, 1965. The first application, Record No. 106 SS., was ruled by the judgments, post.

The prosecutor appealed to the Supreme Court from the

judgment and order of the High Court. On the 11th October, 1966, the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Budd and FitzGerald JJ.) directed the prosecutor to serve notice of his applications on the Attorney General and District Justice Michael J. Keane and the hearing of the applications was postponed to enable such service to be effected.

The prosecutor had been convicted in the District Court on a charge of common assault and he had been sentenced to a term of imprisonment. After the prosecutor had served part of the sentence, the conviction was quashed in certiorari proceedings on the ground that it had been made without jurisdiction and was void ab initio. Subsequently, a summons was served on the prosecutor commanding him to appear in the District Court and to answer a complaint that he had committed the assault which had been the subject matter of the previous void conviction. The prosecutor applied to the High Court for an order of prohibition forbidding the District Justice to proceed with the hearing of the complaint.

Held by Henchy J. and affirmed by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh Walsh, Budd and FitzGerald JJ.), in refusing to grant an order of prohibition, that the conviction, having been made without jurisdiction and being void ab initio, was not a bar to a further prosecution for the same offence.

Conlin v. Patterson [1915] 2 I. R. 169 applied.

PerÓ Dálaigh ó dálaigh C.J.—"This is not to say that, if there should be a conviction and a sentence of imprisonment should be imposed, the court should not, in determining the duration of the sentence, take into account such imprisonment as the applicant has already undergone. Quite the contrary; justice requires that the court should do so."

Henchy J. :—

The applicant seeks a conditional order of prohibition directed to the District Justice for the District Court Area of Athy and prohibiting him from hearing a summons which has been served on the applicant and which charges him with assault. This summons alleges that the applicant assaulted one William O'Shaughnessy. The selfsame charge came before District Justice Sweetman in April, 1966, and he convicted the applicant and sentenced him to a term of imprisonment. The applicant then applied to me for orders of habeas corpus and certiorari. On that occasion the applicant said that he had been orally charged with the offence, but not summoned, and that the District Justice had heard the case against him and had convicted and sentenced him in his absence. That is what happened. It was something the District Justice had no jurisdiction to do; so I granted an absolute order of certiorari. I would also have ordered the applicant's release if he was still in prison, but he was on bail pending appeal. The result, therefore, was that the conviction and sentence were quashed. The prosecution now have instituted the charge afresh, this time by summons. The applicant says that the relevant District Justice has no jurisdiction to hear the summons.

In the certiorari proceedings I did not enter into consideration of the question as to whether the applicant was guilty or innocent of the assault on William O'Shaughnessy. I merely held that there was no jurisdiction in the District Justice to hear that charge in the absence of the applicant; different considerations would have applied if the prosecution had proceeded on foot of a summons. The granting of the absolute order of certiorari was tantamount to a declaration that the former proceedings in the District Court, leading to the conviction and sentence, were a nullity. There is, therefore, no question of res judicata so as to enable the applicant to say that the purported conviction amounted to autrefois convict, or that the order of certiorari amounted to autrefois acquit. This is clear from the judgments of Palles C.B. and Dodd J. in Conlin v. Patterson(1).Dealing with the effect of quashing a conviction on certiorari on a matter of form which has ousted the jurisdiction of the inferior court, Palles C.B. said at p. 175 of the report of that case:—"In such a case the jurisdiction of the King's Bench is limited to determine whether the error in form is such as to oust the jurisdiction of the inferior court. It has not before it the materials to determine guilt or innocence, and has no jurisdiction to do so . . . In such cases, therefore, of which this is one, there cannot be an adjudication, or even a consideration, of guilt or innocence. In the present case, therefore, the order quashing the previous conviction cannot amount to an acquittal."

I must therefore hold, as a matter of law, that neither the District Court nor the High Court has adjudicated on the guilt or innocence of the applicant as to the offence charged in the summons now issued. That being so, I cannot see any reason for saying that District Justice Keane has not jurisdiction to hear the summons. In fact, clear authority for his jurisdiction to do so is to be found in Conlin v. Patterson(1) and in R. (Futter) v. Justices of County Cork(2). There

are, no doubt, certain observations in the judgment of Dodd J. in Conlin v. Patterson(1) suggesting that it is against the spirit of the law to bring a fresh prosecution after a conviction has been quashed. These observations are obiter and Dodd J. declared in Conlin v. Patterson(1) itself that the justices had jurisdiction to hear a fresh summons after a conviction had been quashed. Moreover, since the passing of the Courts of Justice Act, 1928, vesting in the Court of Criminal Appeal jurisdiction to order retrials—a jurisdiction that has been widely exercised—it would not be correct to say to-day, as Dodd J. said in Conlin v. Patterson(1) at p. 178 of the report, that "The genius of our law is against the Crown having a 'second hop' at an offender . . ."

The applicant seeks to distinguish the present case on the ground that he has served portion of the...

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1 books & journal articles
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    • Sage Journal of Criminal Law, The No. 35-1, January 1971
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