State (Vozza), The v District Justice O Floinn and Another

• Jurisdiction: Ireland
• Judgment Date: 29 November 1957
• Date: 29 November 1957
• Court: Supreme Court

High Court.

Supreme Court.

The State (Vozza) v. District Justice O Floinn and Another.

THE STATE (at the Prosecution of EMILIO VOZZA)

and

DISTRICT JUSTICE CATHAL O FLOINN and His Honour JUDGE J. A. McCARTHY

S.C.

In the Matter of an Bunreacht and

In the Matter of the Courts of Justice Acts

1924-1953, and In the Matte of the Criminal

Justice Act, 1951 (1)

Criminal law - Submission by prosecutor to jurisdiction of District Court in respect of charge of attempting to steal - Amendment of charge to one of larceny by District Justice during course of hearing - No evidence that prosecutor was informed by District Justice of his right to be tried upon amended charge before a jury and of his submission to summary trial - Whether statutory condition precedent to exercise of jurisdiction fulfilled in respect of amended charge - Prosecutor convicted of amended charge - Conviction affirmed on appeal - Certiorari - Whether prosecutor by his conduct disentitled himself to order of certiorari - Uberrima fides -Discretion of Court to grant order - Criminal Justice Act, 1951, s. 2 (a) (ii).

Certiorari.

Application to make absolute a conditional order ofcertiorari, dated the 11th February, 1955, directed to the respondents, District Justice Cathal O Floinn, one of the Justices assigned to the Dublin Metropolitan District, and His Honour Judge J. A. McCarthy, a Judge of the Circuit Court of Justice, to bring before the Court all and singular the records of the conviction and sentence of the prosecutor, Emilio Vozza, at a sitting of the District Court for the Dublin Metropolitan District on the 4th October, 1954, and the records and orders of the Circuit Court confirming the said conviction and sentence.

The facts, which have been summarised in the headnote, appear fully in the judgment of Davitt P (post).

E. V., a native of Italy, was charged in the District Court on a count of attempting to steal a purse and its contents from a lady's handbag, in a Dublin street. The District Justice, having formed the opinion that the offence was a minor one fit to be tried summarily, informed E. V. of his right to be tried by a jury and, as he did not object proceeded to try him. E. V.was represented by a solicitor and, as his knowledge of English was imperfect, had the benefit of an interpreter. During the hearing of the evidence, the District Justice formed the opinion that the evidence would support a charge of stealing and he thereupon altered the charge from attempted stealing to larceny. He did not inform E. V. of his right to be tried by a jury in respect of the new charge or ask him if he would consent to be tried summarily.E. V. was convicted of the charge of larceny and sentenced to two months' imprisonment with hard labour. The conviction and sentence were affirmed on appeal. E. V. was imprisoned in Mountjoy Prison where he remained from the 2nd until the 30th November, 1954, when, as a result of a petition, the remaining portion of his sentence was remitted and he was released.E. V. obtained a conditional order of certiorari directed to the District Justice and the Circuit Judge, to bring up for the purpose of being quashed their orders on the ground, inter alia, that as the District Justice had failed to comply with the requirements of s. 2, sub-s. 2 (a) (ii), of the Criminal Justice Act, 1951, he had acted without jurisdiction, as also had the Circuit Judge. On the application to make absolute the conditional order it was

Held by the High Court 1, that the orders of the District Justice and the Circuit Judge were made without jurisdiction.

2, That the conduct of the applicant was such that the Court, in its discretion, ought not to grant the relief sought.

3, There had not been uberrima fides towards the Court by the applicant in the affidavits filed in support of his application.

The Court therefore allowed the cause shown and discharged the conditional order.

On appeal to the Supreme Court it was

Held (Maguire C.J., Lavery, Kingsmill Moore, O'Daly and Maguire JJ.) that the cause shown should be disallowed and the conditional order made absolute.

Per Maguire C.J.:—"While I am prepared to agree that in strictness, except where it goes as of course, the granting of an order of certiorari is in all cases a matter of discretion, I am of opinion that in cases where there is conviction on record, made without jurisdiction, the Court can only exercise that discretion in one way, viz., by quashing the order."

Cur. adv. vult.

Davitt P. :—

The facts of this matter are in controversy to a considerable extent, but those set out as follows appear to emerge with some degree of clarity from the affidavits.

The prosecutor, Emilio Vozza, is a native of Italy who has been resident in this country for upwards of ten years. He, his wife, and those of his children who were not born here, have become naturalised Irish citizens. He carries on business in Crumlin as a cafe proprietor and appears to have done so successfully, confessing himself, as he does, to be the owner of property in excess of £15,000 in value. He speaks a dialect of Italian peculiar to the Volscian-Comino district from which he comes, and his knowledge of English is limited.

As a result of an incident which occurred in Mary Street, Dublin, on the 24th September, 1954, he was charged on Store Street Station Charge Sheet No. 618 with the offence of attempting to steal a purse value 10s. 0d. and its contents, 30s. 0d., from the handbag of one, Pauline Edwards. The charge came on for hearing in the Metropolitan District Court before District Justice O Floinn who, after one remand, took up the hearing of the case on the 4th October. Mr. Slattery of the Chief State Solicitor's Office represented the Attorney General and Mr. Michael Beatty, solicitor, appeared for Mr. Vozza. The latter was accompanied in Court by Mr. Robert Bolton who has for years acted as his auditor and accountant. The District Justice was told that the services of an interpreter would be required, and the case was allowed to stand for a short while to await the attendance of Cavaliere Cafolla who has frequently acted in the District Court in that capacity. The District Justice formed the opinion that the facts alleged constituted a minor offence fit to be tried summarily. What ensued is a matter which is in controversy.

It would appear, however, that the District Justice did inquire whether Mr. Vozza wished to be tried by a jury and whether he had any objection to being tried summarily by him. It is not clear whether the enquiry was addressed to Mr. Vozza or to his solicitor, Mr. Beatty, and though the District Justice and Mr. Beatty are not ad idem on the point it would seem reasonably clear that the enquiry was made before the arrival of Cavaliere Cafolla. Mr. Beatty told the District Justice that Mr. Vozza was denying the charge and wished to be tried summarily. The case then proceeded. Cavaliere Cafolla was sworn as interpreter. The principal witness for the prosecution was Miss Pauline Edwards who was examined and cross-examined in the usual way, her evidence being interpreted for the benefit of the accused. During the course of her evidence it became apparent that, if she was telling the truth, there had been not merely an attempt to steal the purse, but an actual, if technical, asportation constituting the full offence of larceny. The District Justice thereupon decided to amend the charge to one of larceny, and at some stage did so, by striking out the words, "attempt to," where they occurred in the charge-sheet in the context, "did attempt to steal from the handbag of Miss Pauline Edwards . . . a purse," etc. What ensued upon this is again a matter of controversy. The District Justice says that he stated that he proposed to amend the charge to one of stealing, and that there was no objection made on behalf of the defendant. He does not, however, make it clear at what stage he announced his proposal to amend; and Mr. Beatty says that to the best of his recollection this occurred, not during the hearing, but at the end of the case. However that may be, it does not appear that the defendant was asked whether or not he was admitting the truth of the charge as amended; or that he was informed of his right to be tried upon the amended charge with a jury; or that he was asked whether he wished to be tried on the amended charge with a jury or summarily by the District Justice. The defendant gave evidence and, with the aid of the interpreter, was examined and cross-examined by Mr. Beatty and Mr. Slattery, respectively. The case against him was that in Mary Street he had put his hand into Miss Edwards' hand-bag and lifted her purse, but that, as she immediately noticed it, he had dropped it back in the bag. The defendant, while denying the charge, admitted in cross-examination that his hand had accidentally got into, or into contact with, her handbag. The District Justice convicted on the amended charge and imposed a sentence of imprisonment with hard labour for two calendar months.

Mr. Vozza appealed to the Circuit Court and his appeal came on for hearing on the 2nd November, 1954, before his Honour Judge McCarthy. Mr. Carroll of the Chief State Solicitor's Office prosecuted and Mr. Vozza was defended by Mr. Declan Costello, instructed by Mr. Beatty. Cavaliere Cafolla again acted as interpreter. Miss Edwards and Mr. Vozza again gave evidence and the learned Circuit Judge, taking the same view of the evidence as the District Justice, affirmed both conviction and sentence. A warrant was made out at once and Mr. Vozza was thereupon imprisoned in Mountjoy Gaol.

At his client's request Mr. Beatty at once (2nd November), wrote to the Minister for Justice petitioning him to exercise clemency and to direct the release of Mr. Vozza. On the 12th November, Mr. Bolton wrote to the Minister to the same effect. A petition in the usual form with a number of signatures was also...