The King (Martin) v Mahony

Judgment Date30 June 1910
Date30 June 1910
CourtKing's Bench Division (Ireland)
The King (Martin)
Mahony (1).

K. B. Div.











Justices — Jurisdiction — Conviction — Insufficiency of evidence — Certiorari — Power of Superior Court to examine evidence.

M. was convicted by a Dublin Divisional Magistrate of an offence under sections 1 and 3 of the Betting House Act, 1853, on evidence which, if examinable, was insufficient to support the conviction. The prosecution was under the Dublin Summary Procedure Acts, 1 Vict. c. 25, and 5 Vict. c. 24, which prescribe a general form of conviction, not stating or incorporating the evidence. M. having applied to quash the conviction on certiorari on the ground of insufficiency of evidence:—

Held, by the Court, that the conviction, being regular and following the statutory form, could not be quashed on such ground, as the evidence could not be examined.

Held, also, by Lord O'Brien, L.C.J., and Gibson, Madden, Boyd, Kenny, Wright, and Dodd, JJ. (Palles, C. B., dissenting), that the same principle applied to prosecutions under the Petty Sessions (Ireland) Act, 1851, and that neither the column in the Statutory order book directing witnesses' names to be stated, nor sect. 20, sub-s. 4, of that statute, which requires, on request, a note of the material part of the evidence given to be taken and signed by the Justice, incorporated the evidence, or enabled the Court to examine it on certiorari.

Held, by Lord O'Brien, L.C.J., and Gibson, Madden, Boyd, Kenny, and Wright, JJ., that the mere absence of evidence to warrant a conviction did not oust jurisdiction, but amounted merely to error as distinguished from want of jurisdiction. The reasoning on this point in The Queen v. Sullivan (22 L. R. Ir. 504, note), preferred to that in In re Sullivan (Ibid. 98), and In re Heaphy (Ibid. 500). Brittain v. Kinnaird (1 Br. & B. 432), and The Queen v. Bolton (1 Q. B. 66), discussed and applied. In re Bailey (3 E. & B. 607) And In re Baker (2 H. & N. 219) distinguished.

Held, by Palles, C.B., that the note in writing of the evidence signed by a Justice under section 20, sub-sect. 4, of the Petty Sessions (Ireland) Act, 1851, is examinable by the King's Bench Division on certiorari, and if it does not disclose sufficient evidence of guilt, a conviction founded on it is liable to be quashed. In re Sullivan and In re Heaphy explained.

Per Dodd, J.—Where the Legislature does not require the evidence to be stated, whether the statute takes away, or does not take away, certiorari; and where there is nothing in the statutes which regulate the procedure, either by express provision or by necessary intendment, to make the depositions or a note of the evidence part of the record, the King's Bench Division cannot, on certiorari, inquire whether the facts proved warranted the conviction.

The effect of clauses excluding certiorari discussed.


Henry Martin, the prosecutor herein, was, on the complaint of David White, an Inspector of the Dublin Metropolitan Police, charged on summons before Mr. Mahony, a Divisional Justice of the Dublin Metropolitan Police District, with having used a certain shop in the city of Dublin for the purpose of betting with persons resorting thereto. Witnesses were examined in support of the complaint; and their evidence was reduced to depositions signed by the witnesses and by the Justice. It is not necessary for the purpose of this report to set out the evidence, as it was admitted in the argument upon the present application that it was insufficient to warrant a conviction for the offence charged. The prosecutor was convicted and fined £10. The conviction was in the following terms:—

Police District of Dublin Metropolis, to wit,

Be it remembered that on the 24th day, of March, in the year of our Lord 1909, before me, Daniel Mahony, one of the

Divisional Justices of the said District, sitting at Inns Quay Police Court, in the County of the City of Dublin, in the said District, one Henry Martin, of 33 East Essex Street, Dublin, is convicted upon the oath of David White and others, credible witnesses, for that he, the said Henry Martin, on the 22nd day of March, in the year of our Lord aforesaid, at a certain place, to wit, the shop 3 Temple Bar, in the county of the city of Dublin, in said District, being a person using said shop, did use the same for the purpose of the said Henry Martin betting with persons resorting thereto, contrary to the statute in such case made and provided. I do, therefore, adjudge that the said Henry Martin do pay as a penalty for said offence the sum of £10.

The prosecutor obtained a conditional order for a writ of certiorari to bring up and quash the conviction on the ground that the Divisional Justice had acted without and in excess of jurisdiction, there being no evidence given before him that the prosecutor had used the shop in question for the purpose of betting with persons resorting thereto within the meaning of 16 & 17 Vict. c. 116. The prosecutor, in his affidavit filed to obtain the conditional order, referred to and made exhibits of copies of the depositions made on the hearing of the case. Cause having been shown on behalf of the complainant in the summons, the present application was to make the conditional order absolute notwithstanding cause.

Ronan, K.C. (with him William Magrath, for the prosecutor:—

The conviction was under 16 & 17 Vict. c. 119, sects. 1 and 3. By section 14 certiorari is expressly taken away in the case of a conviction or judgment of Quarter Sessions on appeal, but is not taken away in the case of a summary conviction such as here. We contend that the evidence, as appearing on the depositions, was not sufficient to warrant the conviction, and that, certiorari not being taken away, this Court can look at the depositions. [Serjeant O'Brien—I admit that the case must be argued on the basis that certiorari is not taken away, and that the evidence was insufficient to warrant the conviction.] The question then is, Can this Court, in these circumstances, look at the evidence, and, if insufficient, quash the conviction? That is to say, is the Court to follow the decisions of the majority of the Court in the Exchequer Division in In re Sullivan (1) and In re Heaphy (2), or the decision of the King's Bench Division in The Queen v. Sullivan (3)? We submit that the correct view is that expressed by Palles, C.B., in the above-mentioned cases in the Exchequer Division, viz., that, a conviction made without sufficient evidence to sustain it is made without jurisdiction: and, where certiorari has not been taken away, this Court may look at the depositions for the purpose of seeing was the evidence sufficient. The law is stated in Burn's Justice of the Peace to be that a Justice in the exercise of his summary jurisdiction must proceed according to the course of the common law in trials by jury. The evidence must be such as the common law approves of, unless the statute otherwise directs; and “there must be a record of the whole proceedings, wherein the Justice must set forth the particular manner and circumstances, so as if he shall be called to account for the same by a Superior Court, it may appear that he hath conformed to the law, and not exceeded the bounds prescribed by his jurisdiction”: 1 Burn's Justice of the Peace, 30th ed., p. 1100. Formerly it was necessary that in a conviction the evidence should be set out particularly, not merely the result of it: ib., p. 1150. The form of conviction prescribed by 3 Geo. 4, c. 23, provided that the evidence was to be stated, and as nearly

as possible in the words of the witness. The evidence was the most important part of the conviction: Gabbett's Criminal Law, p. 622. The object of setting out the evidence was that sufficient proof should appear on the face of the record to sustain every material part of the charge; and that the Superior Court might be enabled to judge whether the Justices had done right in their adjudication, or whether their conclusions were warranted in point of law: ib., p. 684; 1 Burn's Justice of the Peace, p. 1150; R. v. Vipont (1); R. v. Kellett (2). The Court above had a right to see that the evidence was sufficient in law to maintain the order, though it would not judge of the credit of the witnesses, or the weight of evidence: The King v. Murray, note (a) (3). The decision of the Justices was final in matters of fact only. Where the Justices determine on the law as distinguished from the facts, their decision can be reviewed: The King v. Plowright (4); The King v. Reason (5). The sufficiency of the evidence is a question of law. If there is any evidence tending to prove the offence, the Superior Court cannot judge of the degree of it; bitt if there is no evidence, the Court will quash the conviction: The King v. Davis (6); The King v. Smith (7).

As the law stood formerly, not only must there have been in fact sufficient evidence to sustain the conviction, but this evidence must have been set out on the face of the conviction. The necessity of setting out the evidence in the conviction was removed in Ireland, both as regards cases before the Dublin Divisional Magistrates and cases at Petty Sessions, by a series of statutes—1 Vict. c. 25, s. 26; 5 Vict. c. 24, Sch. B, Form 4; 12 & 13 Vict. c. 70, ss. 17, 35; Petty Sessions (Ireland) Act, 14 & 15 Vict. c. 93, s. 36, and form of conviction prescribed by Order Book; and in England by Jervis's Act, 11 & 12 Vict. c. 43, s. 17. But these statutes dealt with procedure merely; the object was to relieve the magistrates of the duty of setting out the evidence. It was never intended to take away the right a defendant previously possessed of having the conviction quashed where there was no evidence to sustain it.

Justices of the Peace have three classes of jurisdiction:—(1) Requiring sureties to...

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