The State (Attorney General) v Judge Roe

CourtHigh Court
Judgment Date01 January 1952
Date01 January 1952
Docket Number(1949. 2, 3, 4, 5, 6 S.S.)
The State (Attorney General) v. Judge Roe.
THE STATE (at the Prosecution of the Attorney General)
HIS HONOUR JUDGE P. J. ROE,Circuit Court Judge of the South Eastern Circuit, and In the Matter of the Courts of Justice Acts, 1924 to 1936 (1)
(1949. Nos. 2, 3, 4, 5, 6 S.S.)

High Court.

Criminal law - Practice - District Court - Return for trial of accused person - Evidence of return for trial - District Court Order - Signature of Justice affixed by means of a rubber stamp - Validity of signature - Purported copies of order not in existence offered to Court of trial as evidence of return for trial - Oral evidence of order returning accused for trial - Jurisdiction of Circuit Criminal Court to try accused person - Whether return for trial necessary - Certiorari - Mandamus - Petty Sessions Act, 1851 (14 & 15Vict., c. 93), ss. 14, 15 - Courts of Justice Act, 1924 (No. 10 of 1924), ss.27, 64, 77B - Courts of Justice Act, 1926 (No. 1 of 1926), s. 6 - Courts of Justice Act, 1936 (No. 48 of 1936), s. 62 - District Court Rules, 1948 (Stat. R. & O. 1947, No. 431), rr. 20, 23, 57 (1), 63 (2), 83, 84, 85.

Four men accused of certain criminal offences appeared before the Circuit Criminal Court in Clonmel and objection was then taken, on behalf of the first to be arraigned, to the Court proceeding with the trial on the grounds (inter alia):—1, that there was no evidence before the Court to show that the accused had been duly returned for trial, and 2, that the documents transmitted to the County Registrar under the District Court Rules, r. 63, did not comply with the said Rule, inasmuch as the signature of the District Justice had been affixed by means of a rubber stamp facsimile. On the Judge's direction the District Court clerk attended with the Justice's minute book. After hearing argument, the Circuit Court Judge declined jurisdiction to try the indictment on the ground that there was no evidence of a return for trial. He refused to hear the oral evidence of the District Court clerk as to the decision pronounced by the District Justice or, alternatively, as to the relevant entry in the said minute book. The Circuit Court Judge further refused to proceed with the trial on the ground that the District Court Rules required a certified copy of the order returning the accused for trial to be transmitted to the Circuit Court and no such certified copy was before him, and that the only admissible evidence of an order of the District Justice was the prescribed certified copy under the said Rules. The order of the Circuit Court Judge declared that, for the above reason, he had no jurisdiction; it did not, however, formally discharge the defendant from his recognisance to appear and take his trial.

After an adjournment of the Court the hearing was resumed on the following day, when certified copies of the final orders—which had been made up overnight—were produced to the Court to show that the accused had been, duly returned for trial. The Circuit Court Judge rejected the certified copies, as they had not been in existence at the time the objection was taken; and he refused to hear evidence, which the prosecution proposed should be given by the District Justice, of the making of the orders, returning the accused for trial. The Circuit Court Judge made similar orders in all the three remaining cases. On the application of counsel on behalf of the Attorney General conditional orders of certiorari and mandamus, directed to the Circuit Court Judge, were granted by Haugh J. on the 31st January, 1949. On the application to make absolute the conditional orders it was

Held by the High Court 1, That the certified copies of the original orders should have been received by the Circuit Court Judge, even though they were tendered late; the said copies, tendered under r. 63 (2) of the District Court Rules, 1948, were good evidence of the return for trial.

Semble that the production of a certified copy of the order returning an accused for trial is not a condition precedent to the jurisdiction to put him upon his trial.

2, The signature of the District Justice by means of a rubber facsimile may be a valid signature; but if questioned by a party entitled to call for proof, the fixing of the stamp by the Justice must be proved.

3, Judicial records where they exist are preferable to oral evidence of Court proceedings and, in the superior Courts, generally exclude oral evidence of an order.

Fisher v. Lane (1772) 2 W. Bl. 834 and 3 Wils. K.B. 297, Hartley v.HindmarshL.R. 1 C.P. 553 and Mash v. Darley[1914] 3 K.B. 1226 approved.

4, Oral evidence of the spoken orders of the District Justice was therefore inadmissible since the code provided for evidence in writing.

The Court therefore made an order of certiorari and issued a rule in the nature of a mandamus.

Certiorari and Mandamus.

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

Cur. adv. vult.

Gavan Duffy P. :—

At the sitting of the Circuit Court in Clonmel on the 25th January, 1949, Peter O'Dwyer, John Morrissey, Michael Hogan and Patrick Walsh were severally called by the County Registrar, to come forward and plead to the indictments lodged against them respectively—against Peter O'Dwyer for arson of hay under ss. 16 and 17 of the Malicious Damage Act, 1861, against John Morrissey for offences under ss. 1 and 6 of the Criminal Law Amendment Act, 1935, against Michael Hogan for offences under ss. 38, 61 and 62 of the Offences against the Person Act, 1861, and s. 6 of the said Act of 1935, and against Patrick Walsh on a charge of theft under s. 3 of the Larceny Act, 1916.

The facts and the sequence of events are well presented in the careful affidavits of Sean MacCurtain, State Solicitor for the South Riding of the County of Tipperary. Three of the defendants were at liberty on bail, but Walsh, having failed to find bail, was present in custody. Counsel for each defendant, upon his client being called, objected that the Court had no jurisdiction to proceed to trial, mainly on the grounds that there was no evidence to show the defendant's return for trial and that the depositions and other documents from the District Court bore only a rubber stamp in place of the signature of the District Justice.

On O'Dwyer's objection, the first to be made, His Honour Judge Roe directed that the District Court clerk concerned should attend in Court with the Justice's minute book and later in the day the clerk attended with the minute book accordingly.

The learned Judge after argument declined jurisdiction. He refused to hear the District Court clerk, when tendered for the Attorney General to prove orally that he had heard the Justice pronounce his oral decision returning the defendant O'Dwyer for trial to that Court and, alternatively, to prove the relevant entry in the Court minute book. And he refused to proceed with the trial on the grounds (as we are informed) that the rules of the District Court required a certified copy of the order returning O'Dwyer for trial to be transmitted to the Circuit Court, that no such certified copy was before him, and that the only evidence of that order properly receivable was the prescribed certified copy, with the result that he had no admissible evidence of a Justice's order returning the defendant for trial. His order declared that he had no jurisdiction, having no evidence of the return for trial; but it did not formally discharge the defendant from his recognisance to appear and take his trial.

The other three cases were adjourned without objection to the next morning and at the resumed hearing properly certified copies were produced of the formal orders, made out overnight, whereby the three remaining defendants were returned for trial to that Court by the District Justice. The Court rejected these certified copies on the ground, as I understand, that their reception at the adjourned hearing would not be fair to the accused men, since no formal orders, and of course no certified copies of the orders, existed at the time when the objections were made on behalf of the defendants.

District Justice Éamon éamonÓ Ríain ó ríain, who had returned the three men for trial from three distinct Court areas, and who had also returned O'Dwyer for trial, was present at the adjourned hearing. The prosecution now sought to prove the three orders returning Morrissey, Hogan and Walsh for trial by the oral evidence of the Justice himself or alternatively by that of the appropriate Court clerks as officials who in each case had heard the Justice make his spoken order. This testimony was also ruled out by the Court.

The learned Judge further declined to receive oral evidence to prove the entry in the Justice's minute book in each case, by reason of the provisions in the Rules of the District Court, 1948, for proving an order by a certified copy and for the entry in the minute book of imperfect records.

Accordingly, the learned Judge made similar orders declining jurisdiction in the three remaining cases and he directed the discharge from custody of the prisoner, Patrick Walsh.

That in brief outline is the narrative upon which counsel for the Attorney General has moved this Court for orders of certiorari to quash the orders of the Circuit Court declining jurisdiction to proceed to trial in the four cases and for rules in the nature of mandamus directing the Judge of the Circuit Court to enter continuances and proceed with the trial of each of the four defendants upon the indictment against him lodged with the County Registrar.

I propose briefly to recall the relevant jurisdiction of the District and Circuit Courts, then to analyse the code of rules in force in the District Court, and to examine the evidence of a return for trial placed before the Circuit Court, in order to have the data necessary for a decision as to the admissible evidence before the learned Circuit Court Judge.


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