The State (Gettins) v Judge Fawsitt

• Jurisdiction: Ireland
• Judgment Date: 21 December 1945
• Date: 21 December 1945
• Court: Supreme Court

High Court.

Supreme Court.

The State (Gettins) v. Judge Fawsitt

THE STATE (at the Prosecution of Francis Gettins)

and

JUDGE FAWSITT, THE ACTING CIRCUIT COURT JUDGE OF THE NORTHWESTERN CIRCUIT (1)

Revenue - Customs - Summons issued in the District Court - Breach of Emergency Powers (No. 52) Order, 1940, alleged - Revenue Commissioners electing to proceed for £100 penalty - Whether proceeding civil or criminal - Summons dismissed - Appeal to Circuit Court by complainant - On appeal defendant convicted - Penalty imposed by Circuit Court Judge - Certiorari to quash conviction - No right of appeal by complainant in a criminal case when complaint dismissed - Courts of Justice Act, 1924 (No. 10 of 1924), ss. 84, 85 - Customs Consolidation Act 1876 (39 & 40Vict. c. 36), ss. 186, 237 - Customs and Inland Revenue Act, 1879 (42 & 43 Vict. c. 21), ss. 11, 12 - Scrap Iron (Control of Export) Act, 1938 (No. 6 of 1938), s. 3, sub-s. 3 - Emergency Powers (No. 52) Order, 1940. (Stat. R. & Or., 1940. No. 282.) - Emergency Powers (Control of Export) Order, 1940 (Stat. R. & Or., 1940 No. 149) Art 3.

Motion on Notice.

The following statement of the facts is taken from the judgment of O'Byrne J.:—

"By an information sworn by James Malachy McMahon, an officer of Customs and Excise, under the direction of the Revenue Commissioners and duly exhibited it was alleged that the defendant, Francis Gettins, did, on the 14th of February, 1942, attempt to export certain articles for which an export licence had not been issued contrary to s. 3,

sub-s. 3, of the Scrap Iron (Control of Export) Act, 1938 (1)as applied by the Emergency Powers (No. 52) Order, 1940 (2), and that the Revenue Commissioners elected to proceed for a penalty of £100.

In pursuance of that information a summons was issued against the defendant commanding him to appear at the District Court in Ballyshannon. The case came on for hearing at Ballyshannon on the 5th of November, 1942, whereupon the District Justice made the following order:—'Complaint dismissed on the merits.'

The complainant appealed to the Circuit Court against this dismiss, and, on the 9th of March, 1943, the Circuit Court Judge allowed the appeal and convicted the defendant and ordered him to pay for penalty the sum of £100 with costs in the District and Circuit Courts, and directed that, in default of payment, the defendant should be imprisoned in Sligo Jail for a period of six months without hard labour.

The defendant thereupon obtained a conditional order ofcertiorari with a view to having the order of the Circuit Court quashed on the ground that it was bad on its face and made in excess of jurisdiction in that the Circuit Court purported to hear and determine an appeal in a criminal cause or matter after such cause or matter had been dismissed on the merits by the District Justice."

G. was charged, on foot of a summons issued in pursuance of an information laid by an officer of Customs and Excise, with attempting to export certain articles for which an export licence had not been obtained contrary to s. 3, sub-s. 3 of the Scrap Iron (Control of Export) Act, 1938 as applied by the Emergency Powers (No. 52) Order, 1940. The summons stated that the Revenue Commissioners elected to proceed for a penalty of £100. At the hearing the District Justice dismissed the complaint. From this dismiss the complainant appealed to the Circuit Court. On appeal G. was convicted and ordered to pay a penalty of £100 and in default of payment to be imprisoned for six months. G. obtained a conditional order of certiorari to quash the conviction on the ground that it was a criminal case and, under s. 85 of the Courts of Justice Act, 1924, an appeal from a District Justice only lies in a criminal cage by the person against whom the order shall have been made and not otherwise, and accordingly the order of the Circuit Court Judge was made without jurisdiction.

Held by the High Court that the proceedings were to be regarded as of a civil nature, and therefore an appeal lay, and accordingly the conditional order must be discharged. On appeal:

Held by the Supreme Court (Sullivan C.J., Murnaghan and Geoghegan JJ.; O'Byrne and Black JJ. dissenting), reversing the High Court, that the conditional order must be made absolute as it was a criminal case, and therefore an appeal from the District Justice did not lie.

Maguire P.:—

On the 19th September, 1942, an information was laid before the District Court for Ballyshannon, County Donegal against Francis Gettins alleging that "On Saturday, the 14th day of February, 1942 at Knather, in the District Court Area and District aforesaid, you, the said defendant, were in the act of bringing to a place for the purpose of exportation prohibited goods, to wit, 8 cases (240 dozen) of eggs and one pair of woollen blankets, for which an export licence had not been issued, contrary to s. 3, sub-s. 3, of the Scrap Iron (Control of Export) Act, 1938, as applied by the Emergency Powers (No. 52) Order, 1940."

The Revenue Commissioners elected to proceed for a penalty of £100. The District Justice heard the case on the 5th November, 1942. He dismissed it, and from his decision an appeal was taken. The appeal was heard at the Circuit Court sitting in Donegal.

A preliminary objection was taken at the hearing on the ground that no appeal lay from the decision of the District Justice as the matter was a criminal one. The Circuit Court Judge did not accept this contention. He reversed the order of the District Court and ordered the defendant to pay, forthwith, a penalty of £100, together with the costs of the proceedings in the District Court and in the Circuit Court. He further ordered in default of payment that the prosecutor be imprisoned for six months.

The application before us is to quash that order on the ground that the Circuit Court Judge had no jurisdiction to hear the appeal as the proceedings were of a criminal nature.

That proceedings under the Customs Acts are civil in their nature was clearly decided in O'Croinin v. Brennan(1).Sect. 3, sub-s. 3, of the Scrap Iron (Control of Export) Act, 1938 (No. 6 of 1938) is not easy to construe, but to my mind it has the effect of causing that section to be read as part of the Customs Consolidation Act, 1876, and, that being so, it is not arguable that these proceedings are brought only under the Scrap Iron (Control of Export) Act, 1938. It seems clear that, in an offence under the Scrap Iron Act,

it is quite appropriate to lay the charge under that Act. All the provisions of the Customs Consolidation Act, 1876, are, however, attracted. The penalties prescribed by that Act, and the methods of enforcing them, become available to the Court.

In O'Croinin v. Brennan(1) the question was whether or not it was necessary to prove mens rea in proceedings under the Customs Consolidation Act, 1876. We held it was not necessary as the proceedings were of a civil nature. In the case now before us this question is again raised, in a different and more precise form.

The case cited to us in O'Croinin v. Brennan(1), viz.:—R. (Sherry) v. County Court Judge for Fermanagh(2) is again clearly in point. We are not bound by that case, but the opinion expressed by Andrews L.J. and the reasoning which supported it appealed to us then, and does so now. He explained the reason why such proceedings are to be regarded as of a civil nature. The cases cited by Mr. McDowell are distinguished in the judgment of the Lord Justice. By s. 11 of the Customs and Inland Revenue Act, 1879, the penalty is made a civil debt, and it makes no difference whether it is recoverable at the suit of the Attorney-General, or on the information of a Customs Officer.

Accordingly the cause shown must be allowed and the conditional order of certiorari discharged.

The prosecutor appealed to the Supreme Court (3).

Cur. adv. vult.

Sullivan C.J.:—

I have read the judgment which has been prepared by Mr. Justice Murnaghan in this case and I agree with it and I have nothing to add to it.

Murnaghan J.:—

The point for decision in the appeal before the Court is whether the Circuit Court had jurisdiction to entertain an appeal against a dismiss made in a certain proceeding at a hearing in the District Court.

The right of appeal from the District Court to the Circuit Court is given under general provisions contained in the Courts of Justice Act, 1924. Sect. 84 enacts:—"An appeal shall lie in all cases other than criminal cases from any decision of a Justice of the District Court." Sect. 85 enacts:—

"An appeal shall lie in criminal cases from a Justice of the District Court" against certain specified orders "by the person against whom the order shall have been made but not otherwise." If the proceeding before the District Justice was a criminal case, there is no right of appeal against an order of dismissal, but there is an appeal by either party in all cases other than criminal cases.

The summons in the case by the Attorney-General against Francis Gettins begins:—

"Whereas an information has been exhibited this day by James Malachy McMahon, an officer of Customs and Excise in Eire, for that on Saturday, the 14th day of February, 1942, at Knather in the District Court Area and District aforesaid you, the said defendant, were found in the act of bringing to a place for the purpose of exportation prohibited goods, to wit: 8 cases (240 dozen of eggs) and one pair of woollen blankets for which an export licence had not been issued contrary to s. 3, sub-s. 3 of the Scrap Iron (Control of Export) Act 1938 as applied by the Emergency Powers (No. 52) Order, 1940.

The Revenue Commissioners elect to proceed for a penalty of £100 (one hundred pounds)."

On the outbreak of war the Emergency Powers Act was passed, and orders were made prohibiting the export of certain articles deemed to be required for the good of the community. By Art. 3 of the Emergency Powers (No. 52) Order...