The State (Cronin) v Circuit Court Judge of the Western Circuit

• Jurisdiction: Ireland
• Judgment Date: 01 January 1937
• Date: 01 January 1937
• Court: Supreme Court (Irish Free State)

High Court.

Supreme Court.

The State (Cronin) v. Circuit Court Judge of the Western Circuit

THE STATE (at the prosecution of SERGEANT JAMES CRONIN)

and

THE CIRCUIT COURT JUDGE OF THE WESTERN CIRCUIT, and in the Matter of the COURTS OF JUSTICE ACT, 1924 (1)

District Court - Jurisdiction - Summons under Road Traffic Act, 1933, sect. 30,sub-sect. 1 - Proper prosecutor - Right of common informer to prosecute - Whether preserved by the Criminal Justice (Administration) Act, 1924 (No. 44 of 1924), sect. 9, sub-sect. 2 - Appeal to the Circuit Court Judge - Whether Circuit Court Judge heard the appeal or declined jurisdiction- Certiorari to quash Circuit Court Judge's order - Mandamus to hear and determine appeal - Order good on its face - Discretion of the Court - Road Traffic Act, 1933 (No. 11 of 1933), sect. 9, sub-sect. 2, sects. 11and 30.

Certiorari and Mandamus.

The prosecutor, Sergeant Cronin of the Civic Guard, moved to make absolute, notwithstanding cause shown, a conditional order, dated the 21st day of February, 1936, and directed to the Circuit Court Judge of the Western Circuit, whereby it was ordered that an order of certiorarido issue directed to the said Circuit Court Judge to send before the High Court for the purpose of being quashed"all and singular orders and adjudications made by the said Circuit Court Judge at the Circuit Court held at Castlebar on the 7th day of February, 1936, reversing on appeal a conviction and order of the District Justice of the District Court Area of Ballinrobe District Court, on the 19th November, 1935, on the hearing of a summons or complaint wherein Sergeant James Cronin, Gárda Síochána, was complainant and Frank Egan was defendant, that the said defendant did on the 10th day of July, 1935, at Ballinrobe in the County of Mayo, drive a mechanically propelled vehicle, to wit, motor car IM 3784 in a public place whilst drunk, contrary to the Road Traffic Act, 1933, sect. 30, sub-sect. 1, on the grounds:—

1. That the said order was made without jurisdiction, or, alternatively, was an abuse of jurisdiction, inasmuch as no witness was heard and no evidence was received by the learned Circuit Court Judge before adjudicating upon the appeal entered for hearing before him.

2. That in fact the learned Circuit Court Judge did not hear and determine the appeal entered for hearing before him but merely decided a preliminary point as to whether Sergeant James Cronin was a competent complainant having regard to the provisions of the Criminal Justice (Administration) Act, 1924, and the only order made by the learned Circuit Court Judge in the said proceedings was his said ruling as to the competence of the said Sergeant James Cronin to prosecute.

3. That there is not any evidence to support the said order of the said learned Circuit Court Judge.

4. That the said order is in excess of jurisdiction."

And it was further ordered that "an order of mandamusdo issue directed to the said Circuit Court Judge commanding him according to his duty and authority in that behalf to hear and determine the said appeal and the said summons brought by the said Sergeant James Cronin against the said Frank Egan, unless cause shown to the contrary within ten days after service of this order upon the County Registrar of the County of Mayo, as such Registrar, and for and on behalf of the said Circuit Court Judge, and upon the said Frank Egan, the defendant in the Court below."

The application for the conditional order was made on the affidavit of Donough O'Donovan on behalf of the prosecutor. In this affidavit, after setting out the summons and the conviction of Egan by the District Justice, the facts were stated as follows:—

"The said defendant duly appealed, and the appeal came on for hearing before Judge Charles Wyse Power, the Circuit Court Judge, sitting at the Courthouse, Castlebar, in the said County, on the 7th day of February, 1936. Counsel appearing on behalf of the said Frank Egan (before any evidence was heard) made a preliminary objection, in that the summons, which founded these proceedings, was wrong in form, in that it was brought in the name of the said Sergeant James Cronin of the Gárda Síochána, and that by virtue of sect. 9, sub-sect. 2, of the Criminal Justice (Administration) Act, 1924, every criminal prosecution in a Court of summary jurisdiction, save in certain matters set out in the section, should be brought in the name of the Attorney-General (1).

The learned Circuit Judge, without hearing evidence, duly held that such submission was well founded in law, and that the said Sergeant James Cronin was not a person authorised to prosecute the said Frank Egan as aforesaid, and his reasons for so holding fully appear in a copy of his spoken judgment, as delivered by him at Castlebar on the said 7th day of February aforesaid . . . The said Circuit Judge for the reasons stated, and set out in the said copy judgment, duly ordered that the appeal be allowed, and that the conviction and order be reversed and the summons struck out." Deponent made an exhibit of a copy of the order of the Circuit Court Judge, dated the 13th day of February, 1936, as certified by the County Registrar for the County of Mayo. The copy of the order of the Circuit Court Judge exhibited was on a partly printed form, the particulars being typed in, and it was

signed at the end as "a true copy" by the County Registrar. It was a follows:—

Saorstát Éireann éireann.

An Chúirt Bhreitheamhnais Dúithche

(District Court of Justice).

Conviction or order (Appeal Cases).

"Be it remembered that on the 19th day of November, in the year of Our Lord one thousand nine hundred and thirty-five before me, W. D. Coyne, the Justice of the said District sitting in the Court area aforesaid, in the said District, a complaint was made that Frank Egan, of Oughterard Co. Galway, on the 10th day of July, in the year of Our Lord one thousand nine hundred and thirty-five at Ballinrobe, in the County of Mayo, did drive a mechanically propelled vehicle, to wit, motor-car, IM 3784, in a public place, whilst drunk, contrary to the Road Traffic Act, 1933, sect. 30, sub-sect. 1; I did therefore adjudge that the defendant be convicted and ordered to be imprisoned in Galway Gaol for one month without hard labour. The Court further orders that the said defendant (who is now convicted for the first time under the said section) be disqualified for holding a driving licence for a period of twelve months from this date. This disqualification order not to take effect pending the hearing of the appeal, of which defendant's solicitor has given notice.

(Signed) M. MacDiarmuid, D.C.C.

This 23rd day of November, 1935.

I certify that upon the hearing of an appeal on the above order at the Circuit Court held at Castlebar on the 7th day of February, 1936, the Circuit Judge ordered that the appeal be allowed. Reverse conviction and order and strike out summons.

(Signed) John Kelly,

County Registrar.

Dated this 13th day of February, 1936.

A true copy.

(Signed) John Kelly,

County Registrar."

Cause was shown against making the conditional order absolute by an affidavit made by Gerald Maguire, solicitor for Frank Egan, the material paragraphs of which were as follows:—

"An appeal against the said decision [of the District Justice] was lodged by me on the instruction of the said Frank Egan and the said appeal came on for hearing before the Circuit Court Judge of No. 4 (Western) Circuit on the 7th February, 1936.

When the said case was called the complainant, the said Sergeant Cronin, was represented by Mr. A. V. G. Thornton, solicitor, of Castlebar, and the defendant was represented by Mr. Charles Conroy, barrister, instructed by me, this deponent.

At the opening of the case Mr. Charles Conroy raised a preliminary objection to the form of the summons issued against the defendant on the ground that the prosecution should have been brought in the name of the Attorney-General, and not in the name of the complainant, Sergeant James Cronin, by virtue of sect. 9, sub-sect. 2, of the Criminal Justice Administration Act, 1924.

The complainant's solicitor, Mr. Thornton, argued in reply that the summons was valid, and that there was an inherent right in the Civic Guards, under the Constabulary Act, to prosecute in all cases, but he added that he had not time to consider the point and would look into the matter if the case were allowed to stand over for some time to enable him to do so. The Circuit Judge in reply to this request allowed the case to stand over until 2 o'clock, the case having been taken in the first instance at approximately 10.30 a.m.

After the said adjournment the complainant's solicitor stated that he had had an opportunity of looking into the matter since morning and that he had come to the conclusion that there was no answer to the point raised and that the defendant must succeed.

Mr. Thornton then asked to have the Attorney-General added as complainant with Sergeant Cronin. Mr. Conroy objected to this on the ground that, if the complainant was not competent to maintain the proceedings, the summons was invalid when issued, and the Court had not jurisdiction to make it valid by adding a complainant, or, alternatively, ought not to do so.

Mr. Thornton then asked for a further adjournment to enable further research to be made into the point. This request was refused. The Circuit Court Judge then delivered judgment, in which he allowed the appeal, reversed the conviction and struck out the summons."[The defendant referred to a certified copy of the Judge's order.]

The defendant appealed to the Supreme Court (1) from the judgment and order of the High Court and applied for an order allowing the cause shown.

Defendant was prosecuted in the District Court by C., a sergeant of the Civic Guard, with being drunk while in charge of a motor car contrary to sect. 30, sub-sect. 1, of the Road Traffic Act, 1933 (No. 11 of...