The State (Gorman) v Wicklow Circuit Judge

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1950
• Date: 01 January 1950

(H.C.)

The State (Gorman)

and

Wicklow Circuit Judge

Appeal to the Circuit Court - Prosecution by third party on charge of assault - Whether party aggrieved declined to prosecute - Evidence - Whether refusal to prosecute a condition precedent to jurisdiction - Offences against the Person Act, 1861 (24 25 Vict., c. 100), s. 42 - Summary Jurisdiction (Ireland) Act, 1862 (25 26 Vict., c. 50), s. 9.

By s. 42 of the Offences against the Person Act, 1861, as adapted, jurisdiction in cases of assault is conferred on the District Court "upon complaint by or on behalf of the party aggrieved." Sect. 9 of the Summary Jurisdiction (Ireland) Act, 1862, as adapted, makes it lawful for a District Justice, if he thinks fit, to proceed with a charge under s. 42 of the Offences Against the Person Act, 1861, notwithstanding that the party aggrieved might decline or refuse to prefer a complaint. G. was prosecuted in the District Court by a Superintendent of the Garda Siochana for assaulting one Q., and, on conviction, he was sentenced to six weeks imprisonment. The order of the District Justice recited that Q., the party aggrieved, declined to prosecute. G. appealed to the Circuit Court where he contended that there was no evidence that Q. had refused or declined to prefer a complaint and that accordingly the Superintendent was not a competent prosecutor. The Circuit Court Judge, on the ground that in the order of the District Justice it was recited that Q. had refused or declined to prosecute, made all order reciting that Q. had refused to prefer a complaint and affirming the conviction and sentence. G. then obtained in the High Court a conditional order of certiorari and, no affidavit having been filed as cause the respondent moved by notice of motion to show cause. Held by the High Court:—1...