The State (Aherne) v Cotter

Judgment Date01 January 1983
Date01 January 1983
Docket Number[S.C. No. 323 of 1980]
CourtSupreme Court

Supreme Court

[S.C. No. 323 of 1980]
The State (Aherne) v. Cotter
The State (at the Prosecution of Christopher Aherne)
John Cotter

Cases mentioned in this report:—

1 The State (Aherne) v. Governor of Limerick Prison [1981] I.L.R.M. 169.

2 The State (Hunt) v. O'Donovan [1975] I.R. 39.

3 Ex parte M'Fadden— Judgments of the Superior Courts in Ireland (1903 ed. p. 168).

4 The State (O'Flaherty) v. Ó Floinn ó floinn [1954] I.R. 295.

5 The Attorney General (Lambe) v. Fitzgerald [1973] I.R. 195.

6 The Attorney General v. Mallen [1957] I.R. 344.

7 The State (Attorney General) v. Connolly [1948] I.R. 176.

8 The People (Attorney General) v. Earls [1969] I.R. 414.

9 The State (P. Woods) v. The Attorney General [1969] I.R. 385.

10 The State (McLoughlin) v. Shannon [1948] I.R. 439.

11 R. (Conway) v. Justices of Tyrone [1906] 2 I.R. 164.

12 The State (Brennan) v. Governor of Mountjoy Prison (High Court: 7th May, 1975).

13 The State (McKeever) v. Governor of Mountjoy Prison (Supreme Court: 19th December, 1966).

14 The State (Wilson) v. Kelly (Supreme Court: 7th July, 1968).

15 The State (Wilson) v. Kelly (Supreme Court: 29th July, 1969).

16 The State (McDonagh) v. Frawley [1978] I.R. 131.

17 The State (Royle) v. Kelly [1974] I.R. 259.

18 Application of Lucey [1972] I.R. 347n.

19 Ong Ah Chuan v. The Public Prosecutor [1981] A.C. 648.

20 R. v. Newcastle-under-Lyme Justices; Ex p. Whitehouse [1952] 2 All E.R. 531.

Circuit Court - Jurisdiction - Appeal - Criminal case - Conviction in District Court - Sentence of imprisonment - Appeal to Circuit Court against conviction - Conviction affirmed and sentence increased by Circuit Court - Whether increase made within jurisdiction - District Court Rules, 1948 (S.R. & O. No. 431 of 1947), r. 190 - Courts of Justice Act, 1924 (No. 10), s. 91 - Courts of Justice Act, 1928 (No. 15), s. 18.

Appeal from the High Court.

On the 15th April, 1980, the prosecutor was convicted in the District Court of assault occasioning actual bodily harm and was sentenced to nine months imprisonment. The prosecutor appealed to the Circuit Court by notice of appeal (form A1) in which his appeal was expressed to be limited in scope to his conviction only and not to be directed towards his sentence. Nonetheless, when his appeal was heard by the Circuit Court on the 25th June, the Circuit Court judge not only affirmed the conviction but imposed an increased sentence of 12 months imprisonment. On that day also the respondent, the governor of Limerick Prison, received the prosecutor into his custody pursuant to the order of the Circuit Court.

The prosecutor applied to the High Court for an order directing his release from detention pursuant to the habeas corpus procedure provided by Article 40, s. 4, sub-s. 2, of the Constitution of Ireland, 1937. In his affidavit grounding the application, the prosecutor averred that he had appealed against his conviction only, and that the Circuit Court judge had no power to increase the sentence. On the 25th July, 1980, the High Court (Finlay P.) considered the prosecutor's application and directed the respondent to produce the body of the prosecutor before the court at 1.45 p.m. on the 7th October, 1980, and to certify in writing the grounds of the prosecutor's detention.

On the 27th August, 1980, the prosecutor was granted bail by the High Court (Barrington J.) pending the determination of the habeas corpus proceedings. The respondent made a return dated the 9th October, 1980, to the conditional order made by the President and relied on the order of the Circuit Court to justify the detention of the prosecutor. On the 17th November, 1980, the matter again came before the High Court (McMahon J.) to determine whether the respondent's return was sufficient.

On the 25th November, 1980, the judge delivered a written judgment in which he held that the notice of appeal (form A1)1 was the effective document which initiated the appeal and determined its scope, and that the function of form A5 was merely to designate the sitting of the Circuit Court to which the appeal was taken. He held that, as the notice of appeal (form A1) scheduled to the District Court Rules, 1948, in terms permitted an appeal to be taken against part only of an order of the District Court, an appellant to the Circuit Court in a criminal case was free to limit his appeal to so much only of the order of the District Court as convicted the appellant. He held that, on an appeal so limited, the Circuit Court judge had no jurisdiction to increase the sentence imposed by the District Justice. The judge ordered that so much of the order of the Circuit Court as varied the District Court order

by increasing the prosecutor's sentence be quashed, and that a bench warrant should issue to arrest the prosecutor and lodge him in Limerick Prison until the expiry of the balance of the sentence imposed by the District Court: seeThe State (Aherne) v. The Governor of Limerick Prison.1 [1981] I.L.R.M. 169.

Section 91 of the Courts of Justice Act, 1924, provides that the District Court Rules Committee may make rules for carrying into effect Part III of that Act except (inter alia) the hearing "by the Circuit Court of appeals from the District Court" and that, in particular, rules may be made for regulating (inter alia) the forms of appeal and the conditions which an appellant must comply with "in civil cases or in criminal cases." The terms of form A1 in the schedule to the District Court Rules, 1948, appear at p. 210, infra.

Section 18, sub-s. 1, of the Courts of Justice Act, 1928, states:—

"An appeal shall lie in criminal cases from a Justice of the District Court against any order (not being merely an order returning for trial or binding to the peace or good behaviour or to both the peace and good behaviour) for the payment of a penal or other sum of for the doing of anything at any expense or for the estreating of any recognizance or for the undergoing of any term of imprisonment by the person against whom the order shall have been made."

Sub-section 3 of s. 18 states that "every appeal under this section from an order of a Justice of the District Court shall lie to the Judge of the Circuit Court within whose circuit the courthouse in which such order was made is situate, and the decision of such Judge on such appeal shall be final and conclusive and not appealable."

Section 18 of the Act of 1928 states that an appeal shall lie in criminal cases to the Circuit Court from an order of a Justice of the District Court imposing any term of imprisonment, and that the decision of the judge of the Circuit Court upon such appeal shall be conclusive and not appealable. The prosecutor was tried summarily in the District Court and was convicted of an offence for which he was sentenced by the District Justice to serve nine months imprisonment. In his notice of appeal to the Circuit Court, the prosecutor expressly restricted the scope of his appeal to one against conviction only as appeared to be allowed by the form of notice of appeal provided by the District Court Rules, 1948. Nevertheless, in confirming the conviction, the Circuit Court judge increased the prosecutor's sentence to one of 12 months imprisonment. Having brought in the High Court habeas corpus proceedings under the Constitution of Ireland, 1937, the prosecutor obtained in that court relief in the nature of certiorari whereby the decision of the Circuit Court judge was ordered to be quashed insofar as it increased the sentence imposed by the District Justice. The respondent, who was the governor of the prison where the prosecutor had been imprisoned, appealed to the Supreme Court against the order made by the High Court.

Held by the Supreme Court (O'Higgins C.J., Walsh, Henchy, Griffin and Hederman JJ.), in allowing the appeal, 1, that the appeal should be treated as an appeal against an order of certiorari and as if the respondent was competent to bring the appeal.

2. That no relevant limitation had been placed upon the exercise by the Circuit Court of its jurisdiction to determine an appeal under s. 18 of the Act of 1928 from a decision of a District Justice in a criminal case and that, accordingly, the Circuit Court judge had jurisdiction to increase, within the legal limit applicable to the offence, the sentence imposed by the District Justice.

The People (Attorney General) v. Earls [1969] I.R. 414. distinguished.

3. (Per O'Higgins C.J., Walsh, Griffin and Hederman JJ.). That the District Court Rules Committee were not authorised to make a rule of court affecting the jurisdiction of the Circuit Court to hear and determine such an appeal.

Cur. adv. vult.

O'Higgins C.J.

I have read the three judgments which are about to be delivered. I agree with the judgment delivered by Mr. Justice Walsh and with the conclusions reached by Mr. Justice Henchy and Mr. Justice Griffin.

Walsh J.

The question to be decided in this appeal is whether the Circuit Court, in an appeal against a conviction imposed by the District Court in the exercise of its summary criminal jurisdiction, has power to increase the sentence pronounced by the District Justice who imposed the conviction against which the appeal has been taken.

The prosecutor was convicted at Cork District Court on the 15th April, 1980, of the offence of unlawfully assaulting Aiden Hegarty, which is an indictable offence. The District Court was of opinion that the facts proved against the prosecutor constituted a minor offence which was fit to be tried summarily and the prosecutor, on being informed by the District Court of his right to be tried with a jury, did not object to being tried summarily. Accordingly, the complaint was tried summarily. The prosecutor was found guilty and sentenced to nine months imprisonment. Against that conviction he took an appeal to the Circuit Court sitting at Cork. He appealed "against the conviction made by the Justice of the District...

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