State (Wilson) v Neilan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1987
• Date: 01 January 1987
• Docket Number: [1984 No. 361 SS]
• Court: High Court

The State (Wilson) v. Neilan

The State (at the Prosecution of John Wilson)

and

John Neilan

[1984 No. 361 SS]

High Court

District Court - Jurisdiction - Criminal case - Minor offences - Number of similar offences charged in the one summons - Effect - Offence of making false statement to obtain unemployment benefit - Location of offence's commission - Certiorari - Discretion to refuse remedy - Adequacy of alternative relief - District Court Rules, 1948 (S. R. & O. No. 431 of 1947), rr. 25, 44 - The Courts of Justice Act, 1924 (No. 10), s. 79 - Social Welfare (Consolidation) Act, 1981 (No. 1), s. 115.

Rule 25(b) of the Rules of 1948, provides that the jurisdiction of a District Justice in cases of summary jurisdiction shall be exercised by him within his district in the court area of that district wherein the offence charged (or, if more than offence is stated to have been committed within that district, any one of such offences) is stated to have been committed or the court area of that district wherein the accused has been arrested or resides.

The prosecutor was tried by the respondent District Justice sitting in the District Court area of Letterkenny on foot of a summons charging him with having made on a number of dates in 1982, and within the said court area, a statement for the purpose of obtaining unemployment benefit which was false and misleading in a material respect, namely, that he was unemployed on certain dates in that year when he was not so unemployed, contrary to s. 115, sub-s. 1, of the Act of 1981. The penalty provided by the sub-section on summary conviction of an offence thereunder is a fine not exceeding £500, or, at the discretion of the court, imprisonment for a term not exceeding one year, or both such fine and such imprisonment.

Evidence was given at the trial of the prosecutor (who resided in the District Court area of Raphoe), that, on each of the dates in question, he had completed the official form provided for applications for unemployment benefit, and had then presented it to the Gardaí stationed at Carrigans in the District Court area of Newtown Cunningham who had in turn transmitted it by post to the unemployment exchange situate in the District Court area of Letterkenny. The respondent convicted the prosecutor of an offence in respect of every date set out in the summons but imposed a penalty in relation to only two of the offences, which in each case was a fine of £250 and a term of imprisonment for 6 months.

The prosecutor filed a notice of appeal to the Circuit Court against those convictions and obtained a conditional order of certiorari in the High Court quashing, unless cause was shown to the contrary, the conviction order of the respondent on the grounds, 1, that the respondent had no jurisdiction to try the offences charged against the prosecutor because they had not been committed within the District Court area of Letterkenny; 2, that the effect of charging each of the offences in the one summons was to take them out of the category of minor offences and, 3, on a number of further grounds related to the manner in which the convictions were recorded against the prosecutor. At the hearing of the prosecutor's motion for an order absolute, notwithstanding the cause shown, it was

Held by Carroll J., in allowing the cause shown and discharging the conditional order, 1, that the offences were committed within the District Court area of Letterkenny since s. 115, sub-s. 1, of the Act of 1981 only proscribes false statements directed to some person who has power under that Act to decide whether unemployment benefit will be given, and, accordingly, the offences were not complete until the official forms were received by the unemployment exchange in Letterkenny.

2. That in determining whether a number of offences charged against a person in the one proceedings constitute minor offences, the nature and gravity of each offence must be considered separately and each offence here, when so considered, could not be classed as other than a minor one.

Charlton v. Ireland and Others [1984] I.L.R.M. 39 and The State (Rollinson) v. Kelly[1984] I.R. 248 considered.

3. That, as any errors contained in the respondent's conviction order did not go to the jurisdiction of the District Court and could be remedied on the prosecutor's appeal to the Circuit Court, the Court would exercise its discretion to refuse an order of certiorari in respect of them.

The State (Roche) v. Delap [1980] I.R. 170 and The State (Abenglen Properties) v.Corporation of Dublin[1984] I.R. 381 applied.

Cases mentioned in this report:—

The State (Roche) v. Delap [1980] I.R. 170.

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381; [1982] I.L.R.M. 590.

Charlton v. Ireland and Others [1984] I.L.R.M. 39.

The State (Rollinson) v. Kelly [1984] I.R. 248; [1984] I.L.R.M. 625.

Certiorari.

On the 9th July, 1984, the prosecutor obtained in the High Court (Murphy J.) a conditional order of certiorari quashing, unless cause was shown to the contrary, an order of the respondent District Justice convicting the prosecutor of offences contrary to s. 115, sub-s. 1, (b) (i), of Part II of the Social Welfare (Consolidation) Act, 1981. The facts have been summarised in the headnote and appear more fully, together with the precise terms of the summons on foot of which the prosecutor was charged with those offences, in the judgment of Carroll J., infra.

The respondent's conviction order, dated the 5th June, 1984, and grounds upon which the prosecutor obtained the conditional order of certiorari and the grounds on which cause was shown are set out in the judgment as well.

Cause on behalf of the respondent was shown, initially, by a notice dated and filed the 5th September, 1984, and, by leave of Carroll J. granted pursuant to order 28, r. 12, of the Rules of the Superior Courts, 1962, that notice was supplemented by an affidavit sworn on behalf of the respondent on the 10th October, 1984.

Article 38, ss. 1-2 and 5, of the Constitution of Ireland, 1937, states:—

"1. No person shall be tried on any criminal charge save in due course of law.

2. Minor offences may be tried by courts of summary jurisdiction.

5. Save in the case of the trial of offences under section 2, section 3 or section 4 of this Article no person shall be tried on any criminal charge without a jury."

The terms of s. 79 of the Courts of Justice Act, 1924, so far as relevant to this report, and s. 115, sub-s. 1, (b), of the Social Welfare (Consolidation) Act, 1981, appear in the judgment of Carroll J., infra. Section 115, sub-s. 1, (d), of the Act of 1981 provides the following penalties for a conviction of an offence under paragraph b of that subsection:—

"(d) A person who is guilty of an offence under this sub-section shall be liable -

• (i) on summary conviction, to a fine not exceeding £500 or (at the discretion of the court) to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment, or

• (ii) on conviction on indictment, to a fine not exceeding £2,000 or (at the discretion of the court) to imprisonment for a term not exceeding two years, or to both such fine and such imprisonment."

Paragraph (f) (i) of s. 115, sub-s. 1, further provides that a person convicted of an offence under that sub-section shall, subject to a number of exceptions which are not relevant to this report, be disqualified for the receipt of benefit under Part II of the Act for a period of six months immediately following the date of the conviction.

Section 79 of the Courts of Justice Act, 1924 (as applied to the District Court by s. 48 of the Courts (Supplemental Provisions) Act, 1961) and which deals, inter alia, with the exercise of criminal jurisdiction by District Justices as respects District Court districts must be read in...