The State (Attorney General) v Judge Connolly

• Jurisdiction: Ireland
• Judgment Date: 06 February 1948
• Date: 06 February 1948
• Court: High Court

High Court.

The State (Attorney-General) v. Judge Connolly.

THE STATE (At the Prosecution of the Attorney-General) (At the Suit of Superintendent Leo Maher)

and

THE JUDGE OF THE DUBLIN CIRCUIT COURT, JUDGE CONNOLLY (1)

Circuit Court - Jurisdiction - Appeal from District Court in criminal case - Order of District Court bad on its face - Order reversed on form - No evidence heard in Circuit Court - Whether formal defect a "preliminary point" - Meaning of "preliminary point" - Whether Circuit Court Judge declined jurisdiction - Whether charge dismissed on merits - Duty of Circuit Court Judge on appeal from an order bad on its face - Certiorari andmandamus - Summary Jurisdiction (Ir.) Act, 1862 (25 & 26 Vict., c. 50),s. 5 - Civil Bill Courts (Ir.) Act, 1864 (27 & 28 Vict., c. 99), s. 49.

Certiorari and Mandamus.

The facts as they appear from the affidavits sworn in the proceedings, were as follows:—Proceedings had been brought, in the District Court, against one John Hughes under s. 5 of the Summary Jurisdiction (Ir.) Act, 1862, charging that on the 25th of May, 1947, 6th of June, 1947 and on other dates unknown during the months of May and June, 1947,

he did unlawfully steal, take and carry away at Glassamuckey Brakes, Tallaght, about eight sacks of turf, the property of one Daniel McGovern and value 25s. and at the same time and place did receive the said turf and had the same unlawfully in his possession well knowing the same to have been stolen or otherwise unlawfully obtained.

According to the extract from the District Justice's minute book, it appeared that the District Justice had adjudicated thereon on the 1st of August, 1947, at Rathfarnham District Court. The particulars of the charges were as follows:—

"1. Stole about 8 sacks of turf value about £1 5s. the property of one Daniel McGovern.

2. Receive said turf.

3. Illegal possession of same.

Glassamuckey	Tallaght
25/5/47.	6/6/47"

The Justice's order was as follows:—

"1. C. 1 C. M. H. L. (Summary Jurisdiction Act).

2. D. W. P.

3."

The defendant appealed from the order of the District Justice and the appeal came on for hearing before the Circuit Court Judge (Judge Connolly) on the 4th November, 1947. The solicitor for the State, in opening his case, drew the attention of the Judge to a copy of the extract from the minute book and to the note thereon of the conviction and order of the District Justice. The solicitor stated that he understood the marks "C. 1 C. M. H. L." (Summary Jurisdiction Act) to mean "Convict—1 calendar month's hard labour,"and he asked the Judge to hear the evidence to be offered on the appeal, and, if he should decide to affirm the conviction, to amend the order of the District Justice so as to make it appear plainly therefrom that the order was one convicting the defendant of the offence, and sentencing him to one calendar month's imprisonment with hard labour. He also argued that, as the defendant had served a notice of appeal, the case was lawfully before the Circuit Court and the Judge could make any appropriate order and that evidence should be called in support of the charge and any application to have the order of the District Justice quashed should have been brought before the High Court and not before the Circuit Court.

The contention on behalf of the defendant was:—1. That the order., if made under s. 5 of the Summary Jurisdiction (Ir.) Act, 1862 (25 & 26 Vict., c. 50) would still be bad on its face if, in fact, the amendment asked for was made as the order did not provide for the payment of the value of the property stolen to the party aggrieved. 2. That the date of the offence was not set out with certainty. 3. That the wording of the summons and of the order made and signed by the District Justice could be taken to be a conviction under the Larceny Act, 1916, and that the defendant was not given any opportunity to submit to a summary hearing and did not do so. 4. That the position was so uncertain and unsatisfactory that it would not be just to make the amendment asked for; and 5. That the appeal should be allowed on the grounds that the District Justice had no jurisdiction to make the order and that this ground of appeal was sustained.

Having heard the arguments on both sides, the Circuit Court Judge decided that, as the appeal to the Circuit Court lay on questions of law as well as of fact, he would, if he acceded to the request of the State, be, in effect, depriving the defendant of a remedy which he would have had if he had applied to the High Court, and he was of opinion that the mere fact of taking an appeal to the Circuit Court should not deprive the accused of his vested legal rights. He further held that the conviction and order of the District Justice were wholly bad in law and could not be sustained, and he thereupon made an order allowing the appeal and reversed the order appealed from, and dismissed the charge. In arriving at that decision and judgment, he was of opinion that it would be a denial of the essentials of justice to deprive the defendant of the redress which he could have obtained by way of certiorari in the High Court, but which, according to the submissions of the solicitor for the State, the accused had forfeited by appealing to the Circuit Court. He was further of opinion that, if an order appealed from in a criminal matter is bad on its face and unsustainable in law, a Circuit Court Judge hearing the appeal from such order is entitled to decide, without hearing evidence, that, as a matter of law, the order should be reversed and the appeal allowed.

An application was made to Dixon J. on 28th November, 1947, for a conditional order of certiorari and mandamuswhich was granted on the grounds:—1, that the learned Circuit Court Judge acted without and in excess of jurisdiction in purporting to quash the conviction and order of the District Justice; 2, that the Circuit Court Judge was wrong in law in declining jurisdiction to hear and determine the appeal in accordance with law; 3, that the Circuit Court Judge was wrong in law and acted without jurisdiction in refusing to hear the evidence tendered on behalf of the complainant.

Cause was shown against the conditional order, and the prosecutor now moved to make absolute the conditional order notwithstanding cause shown.

H. was convicted in the District Court of the larceny of turf. The order made by the District Justice on his conviction was bad on its face, and H. appealed to the Circuit Court. On the hearing of the appeal, and before any evidence was heard, an objection in law was taken, on behalf of H. to the form of the order of the District Justice, it being contended that it was bad on its face. The Circuit Court Judge decided that that was so and, without hearing any evidence, reversed the order of conviction and dismissed the charge.

Held by the High...