The Queen v Justices of County Antrim

• Jurisdiction: Ireland
• Judgment Date: 13 June 1895
• Date: 13 June 1895
• Court: Queen's Bench Division (Ireland)

Reg. (Giant's Causeway, &c., Tramway Company)

and

Justices of Co. Antrim (1).

Q. B. Div.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Certiorari — Dismiss by Justices — Nemo bis vexari debet pro eadem causa — “Want and excess of jurisdiction” — Bias or interest of Justice adjudicating — Acquiescence — Application by a Judge of his local or scientific knowledge — Onus of disproving statutory exceptions (40 & 41 Vict. c. 56, sect. 78).

L. was prosecuted, in absentia, before Justices, on a complaint alleging generally that he was on the complainants' railway on a certain date, after baying once received warning, contrary to 31 & 32 Vict. c. 119, sect. 23, as amended by 34 & 35 Vict. c. 78, sect. 14. The complaint did not negative the statutory exception in the case of a person being on a railway “for the purpose of crossing the same at any authorised crossing.” The trespass actually occurred on a point where the line ran along a lane, which had, at one time, been a public right of way. M., one of the presiding Justices, bad an interest in this right of way as a member of the public living in the vicinity; and, some time previously to the prosecution, bad been in communication with the complainant Company in regard thereto; they asserting that the right bad been lost, as it had not been preserved by the award of the arbitrator under the Board of Trade, appointed to adjust all such claims against the said Company; M. considering that the right still existed as before, inasmuch as

no alternative way had been provided, and having challenged the Company to institute proceedings against him for trespass in assertion of the right. At the Petty Sessions Court, before this and some other cases in which the complainant Company were interested were called on, a director of the Company asked M. to remain and adjudicate; and no objection was afterwards taken during the hearing, when the question of the existence of the right arose. During the hearing of the case the complainants' witness having stated where the trespass occurred, M. asked: “Surely that is on the track of the old lane. Is there not a public right of way there?” The witness did not answer, and the complainants' solicitor refused to make any admission, submitting that the defendant was not present, and that no question of such right was raised on his behalf. The defendant, L., a decrepit mendicant, had already, on the same day, been sentenced to fourteen days' hard labour for begging, and had also been fined 2s. 6d., at the suit of the Company, for trespass. The complainants gave evidence that the defendant had “received warning,” but none negativing the statutory exception mentioned above. When the complainants' case had closed the Justices dismissed the summons on the ground that the case had not been proved.

On motion to make absolute a conditional order for a writ of certiorari to remove and quash the order of the Justices upon the ground that it was made without, and in excess of, jurisdiction:

Held (diss. Holmes, J.), that in no case can certiorari issue to remove and quash an order of dismissal by Justices.

Per Curiam, that where it is intended to rely on the bias or interest of a particular Justice as vitiating the proceedings at Petty Sessions, the established and proper practice of the Court is that such bias or interest should be specifically stated as a ground on the face of the conditional order.

Per Sir P. O'Brien, C.J., O'Brien and Johnson, JJ., that (treating the ground of bias as open on this motion), though M. took such an interest, albeit on public grounds, in the case, as to make a real bias reasonably probable, the complainants, by their acquiescence in his sitting and adjudicating on the case, were precluded from relying on this objection.

Per Holmes, J., that the circumstances disclosed no bias sufficient to disqualify M. from adjudicating on the case.

Quœre: The Petty Sessions (Ireland) Act, 1851, sect. 20, sub-sect. 1, providing that if an information or complaint shall negative any exception in the statute on which same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant may prove the affirmative thereof; and the County Officers and Courts (Ireland) Act, 1877, sect. 78, providing that such exception may be proved by the defendant, but need not be specified or negatived in the information or complaint, and if so specified or negatived, no proof in relation thereto shall be required from the complainant,—is it incumbent on the complainant, where the complaint does not specify or negative the exemption, to prove the negative thereof?

The limits of the right and duty of a judge to use and apply his local or scientific knowledge in reference to a case at hearing before him discussed.

Certiorari.

This was an application on behalf of the Giant's Causeway and Portrush, &c., Tramway Company, to make absolute a conditional order, dated the 30th November, 1894, to remove and quash an order of the Justices of county Antrim, made at Bushmills Petty Sessions on the 13th September, 1894, on the ground that it was made “without and in excess of jurisdiction.”

The affidavit of W. A. Traill, managing director and engineer of the Company, on which the conditional order was obtained, stated that at these Petty Sessions, before Lord Macnaghten, William Orr, E.M., Captain Robinson, A. H. Steen, and J. Boyle, Justices of the Peace, two summonses for trespass against a man called Love came on for hearing in the ordinary course; that the first summons was for three acts of trespass on the 1st and 15th July, and 20th August, on certain ground, the property of the plaintiffs and adjoining their line of railway, contrary to 31 & 32 Vict. c. 119, sect. 23, as amended by 34 & 35 Vict. c. 78, section 14 (1). It stated that he (W. A. Traill), was examined as a witness for the plaintiffs and proved that the ground in question was the property of the plaintiffs, having been purchased by them under their compulsory powers at the time of the construction of the line; that he also proved that he had warned the defendant personally, prior to the acts of trespass complained of, against trespassing; that the defendant did not appear and was not professionally represented; and that after due proof of the service of the summons the Justices convicted the defendant and fined him in the sum

of 2s. 6d. The affidavit proceeded.—(Paragraph 4.) “The second summons (1), was then entered upon before the same Justices complaining of a trespass on certain ground the property of the plaintiffs which, as in the former case, adjoined the plaintiffs' line. I (W. A. Traill) was again examined as witness for the plaintiffs and proved the warning given to the defendant; I also proved the trespass by him on the ground in question, and that it was in the exclusive possession of the plaintiffs, and was purchased by them under their compulsory powers at the time of the construction of the line. The defendant did not appear and was not professionally represented. Due proof of the service of the summons upon him was given, and no evidence of any sort or kind was given or tendered on his behalf, or any question of title raised by him or on his behalf. When the case for the plaintiffs had closed, Lord Macnaghten, who was acting as Chairman of the presiding Justices, stated from the Bench that he believed that there was a public right of way along this particular ground in question, and that the defendant had gone there in the exercise of this right and that the Bench would dismiss the summons on the merits. From this decision the resident magistrate, Mr. Orr, dissented.”—Paragraph 5 stated that the plaintiffs appealed to Quarter Sessions, where it was held that there was no jurisdiction to hear an appeal from a “D.O.M.” The affidavit then proceeded:—(Paragraph 6), “The plaintiffs have been advised that this decision of the Justices, if allowed to stand, may seriously prejudice the rights of the plaintiffs as the owners of the ground in question. Lord Macnaghten, who is the owner of property in the vicinity, had himself on several occasions prior to the hearing of this summons trespassed on the ground in question in the assertion by him of what he alleged was a public right of way, but had been warned by the plaintiffs to desist as the ground was their property and as the alleged right had no existence in law or in fact.”

Lord Macnaghten, in an affidavit filed by him, as cause against making absolute the conditional order, after referring to the proceedings on the motion for that order, and to the affidavit of W. A. Traill (1) stated:—(Paragraph 7), that between Portrush and Bushmills the Company's tram line was carried along the county road under a special Act obtained in 1880, and that in 1885 the Company obtained another Act empowering them to make an extension of their tram line to the Giant's Causeway and to take land for that purpose, in which last-mentioned Act the Railway Clauses Consolidation Act, 1845, was incorporated;—(Paragraph 8), that at the time when the Act of 1885 was passed there was an old lane leading from a place on the Bushmills and Port Ballintrae county road called Portcatt, by a collection of houses called Bushfoot, to the sea near the mouth of the river Bush;—(Paragraph 9), that this old lane was, in 1885, and had been previously for a period extending beyond the memory of any living person, a public highway;—(Paragraph 10), that in making their extension to the Giant's Causeway, the Tramway Company constructed their line across this old lane and along it, for about 200 yards between the two points of intersection, but did not, however, before interfering with the said lane, provide a substituted way, as they were bound to do, by the...