The State (Caddle) v Judge McCarthy and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 21 May 1957
• Date: 21 May 1957

The State (Caddle) v. Judge McCarthy and Others.

THE STATE (at the Prosecution of WALTER CADDLE)

and

Circuit Court Judge JOSEPH A. McCARTHY, District Justice T. G. O'SULLIVAN,District Justice WALTER H. MOLONY, District Justice JOHN FARRELL and SEÁN seán O CAOMHANAIGH,the GOVERNOR OF MOUNTJOY PRISON, And In the Matter of the Courts of Justice Acts, 1924 to 1953, And In the Matter of An Bunreacht

Supreme Court.

Criminal law - Warrants of execution - Convictions in District Court - Convictions affirmed on appeal to Circuit Court - Sentences of imprisonment - Issue of temporary warrants by order of Circuit Judge, authorising imprisonment pending issue of formal warrants of execution - Accused lodged and detained in prison - Subsequent issue of formal warrants by District Justices - Warrants addressed to "The Governor of Mountjoy Prison" - Sentence of, imprisonment for two months and fine, payable within stated period, and in default of such payment, three months' imprisonment, imposed in respect of one offence - Period for payment of fine unexpired at date of issue of warrant by District Justice - Recital in warrant that "said order has not been complied with" - Direction in warrant "to lodge the said defendant in the Mountjoy Prison . . . to be imprisoned . . . for a period of three months unless said fine be sooner paid, and that he be detained for a period of two months making allowance: for any, period of original sentence already served" - Accused's, name not set out in "body" of warrants - Validity of warrants - Practice - Habeas corpus.

C. was convicted in the Dublin District Court of a number of offences under the Road Traffic Act, 1933, and in particular of the offence of driving a mechanically propelled vehicle in a public place without insurance, contrary to s. 56. of the Act, On three separate occasions. They were separate and distinct offences and the charges were heard respectively by three District Justices on three different occasions. In respect of one of these offences he was sentenced, inter alia, to two months' imprisonment with a fine and, in default of payment of the fine within seven days, to imprisonment for a term of three months, and on each of the other two offences to imprisonment for one month in Mountjoy Prison. On appeal to the Circuit Court, determined on the 24th March, 1954, the conviction and sentence were affirmed in each case. In addition, the Circuit Court Judge directed "that the County Registrar do issue a temporary warrant forthwith," and that C. be detained in custody pending the issue of such warrant. The County Registrar, on the same day, the 24th March, 1954, issued warrants addressed to the Governor of Mountjoy Prison and directed him to receive and imprison C. pending the issue, in due course, of formal warrants of execution. On that day C. was lodged in Mountjoy Prison. On the 29th March, 1954, C's mother went to Mountjoy Prison to pay the fine, and when she tendered the sum due to a warder he did not accept the money as he said there was no warrant there. On the 31st March, 1954, the District Justices issued their warrants, which were addressed to the Governor of Mountjoy Prison. The warrants, which purported to be in Form 18c of the schedule of forms annexed to the District Court Rules, 1948, contained the recital in print:—"and whereas the said order has not been complied with." C. applied for and obtained a conditional order of habeas corpus, directed to the Governor of Mountjoy Prison. On the application by C. to have the Said conditional order made absolute notwithstanding cause shown, it was

Held by Haugh J., allowing the cause shown and discharging the conditional order

1, That the phrase, "this order has not been complied with," was meaningless. The words were mere surplusage, appearing in a printed form applicable to some cases but not to the facts of this case, but their inclusion did not invalidate the warrant.

2, That although the name and address of the prosecutor did not appear in the exact place indicated, in the form of the District Court Rules, it did appear in the title and in a place slightly in advance of that shown in the form and this slight difference was of no material importance and was not misleading.

3, The warrants were defective in that they were addressed to the Governor of Mountjoy Prison and not to the proper superintendent or inspector of the Gárda Síochána as provided by the Petty Sessions (Ireland) Act, 1851, and Rule 70 of the District Court Rules, 1948. Although defective in this respect the warrants were received by the Governor of Mountjoy Prison when the prosecutor had been detained there for some six and a half days following a valid conviction and therefore the prosecutor was not entitled to relief by way of an order of habeas corpus.

On appeal by the prosecutor to the Supreme Court it was

Held by the Supreme Court (Maguire C.J., Lavery and Maguire JJ.; Kingsmill Moore and O'Daly JJ. dissenting) dismissing the appeal, 1, that the recital, "and whereas the said order has not been complied with,"was not appropriate as the prosecutor was in prison, but the phrase was in fact accurate as sentence had not been served and the purpose of the warrant was to secure compliance with the order. The warrant, with these words included, was perfectly intelligible and the recital did not affect its validity.

2, The absence of the prosecutor's name from the body of the warrants did not give rise to obscurity or ambiguity. His name appeared in the title of the warrants as "defendant" and the reference to the prosecutor thereafter as "said defendant" was the usual method of referring to persons, places and things in instruments of the most formal and solemn kind, who at a previous place have been fully described and was in accordance with universal practice. Any other method would be cumbrous and unreasonable.

3, It was sufficient that the warrants were addressed to the Governor by the title of his office and not by name. The Governor might, on showing he held office, rely on the general words of a warrant that it "shall be sufficient authority to all whom it may concern."

4, The warrant, which directed imprisonment for two months and, also, imprisonment for default in payment of a fine when at the date of its issue the period allowed for payment had not expired was irregular. The direction to imprison for three months unless the fine was sooner paid was invalid, not being in conformity with the terms of the conviction. The second direction to imprison for two months, to which the prosecutor was legally sentenced, was current at the time of the obtaining of the conditional order, was good, and the governor was bound to obey it and the warrant was a justification for the detention of the prosecutor, which was in accordance with law.

5, The procedure followed in this case was in accordance with the procedure in the District Court in the Dublin Metropolitan District and the Dublin Circuit Court where the practice has been to direct warrants of commitment to the Governor of Mountjoy Prison only, and by virtue of Rule 91 (1) of the District Court Rules, 1948, this practice is continued and legalised and justified the direction of warrants to the Governor where the defendant was already in his custody.

6, The term of imprisonment imposed by direct sentence did not exceed the maximum and the sentence in default of payment of the fine was below the maximum term and the accumulative sentence, if default was made was therefore within the penalties authorised.

Attorney General v. Mallen [1957] I. R. 344 referred to.

Habeas Corpus.

The prosecutor, Walter Caddle, was convicted in the Dublin District Court on the 13th and 22nd January, 1954, and 16th February, 1954, in respect of a number of offences under the Road Traffic Act, 1933, and in particular of the offence of driving a mechanically propelled vehicle in a public place without insurance, contrary to s. 56 of the Road Traffic Act, 1933. For this offence, District Justice Walter H. Molony on the 13th January, 1954, sentenced him to imprisonment, in Mountjoy Prison, for a period of two months, without hard labour, and imposed on him a fine of £20, to be paid within seven clear days and, in default of such payment, to imprisonment for a period of three months without hard labour. The District Justice also disqualified him from holding a driving licence for a period of five years. For similar offences District Justice John Farrell, on the 22nd January, 1954, imposed as from that date a sentence of one month's imprisonment, without hard labour, to run concurrently with the sentence imposed by District Justice Molony and on the 16th February, 1954, District Justice T. G. O'Sullivan sentenced him, as from that date, to one month's imprisonment, without hard labour.

On appeal by the prosecutor to the Circuit Court, heard on the 24th March, 1954, the convictions and orders of the District Justices were affirmed by Circuit Judge J. A. McCarthy, save that the sentences were ordered to date as from the 24th March, 1954. The Circuit Judge directed that the County Registrar should issue temporary warrants forthwith, the prosecutor to be detained in custody pending the issue of such warrants.

In pursuance of these orders the County Registrar, on the same day, the 24th March, 1954, issued warrants addressed to the Governor of Mountjoy Prison, in which the orders of the Circuit Judge were recited, and he (the Governor) was authorised and empowered to receive the prosecutor "and him to imprison and keep at Mountjoy Prison pending the issue in due course of a formal warrant of execution." On that day the prosecutor was duly lodged in Mountjoy Prison and was detained therein by the Governor. The District Justices issued their respective warrants on the 31st March, 1954, directed to the Governor, Mountjoy Prison. The warrant of District Justice Molony contained the following...