The State (Gorman) v Wicklow Circuit Judge

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

The State (Gorman) v. Wicklow Circuit Judge.

THE STATE (at the prosecution of THOMAS GORMAN)

and

THE CIRCUIT COURT JUDGE FOR THE COUNTY OF WICKLOW and THE DISTRICT JUSTICE OF THE DISTRICT COURT AREA OF NEWTOWNMOUNT-KENNEDY, COUNTY OF WICKLOW (1)

High Court.

District Court - Jurisdiction - 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 wac 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 an 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 chow cause.

Held by the High Court:—

1. That the refusal to prosecute by the party aggrieved, prior to the institution of a prosecution, was a condition precedent to the jurisdiction of the Court: R. (Prendergast) v. Justices of Waterford, 4 N.I.J.R. 196, commented on.

2. That the question whether such condition precedent had been fulfilled or not was a matter to be considered only by the tribunal empowered to adjudicate in the case: R. (Darcy) v. Justices of Co. Carlow, [1916] 2 I. R. 313, followed.

3. That the question whether the party aggrieved had declined or refused to prosecute was not a question preliminary or collateral to jurisdiction.

R. (Martin) v. Mahony, [1910] 2 I. R. 695 and The State (Cronin) v. Circuit Court Judge of the Western Circuit, [1937] I. R. 34 considered.

The Court allowed the cause shown and discharged the conditional order.

Certiorari.

The prosecutor was charged by Superintendent J. F. Hynes, of the Garda Siochana, before the District Court at Newtownmountkennedy with assault on one, Edward Quinn, on the 22nd February, 1948. After hearing the evidence which was tendered on behalf of the complainant and the

evidence of the prosecutor, the District Justice held that the prosecutor was guilty of the offence charged and, having made an order reciting that Edward Quinn, the party aggrieved, had declined to prosecute, he sentenced him to six weeks' imprisonment with hard labour, and he directed that he should enter into recognizances to keep the peace for twelve months, in his own surety of £100 and two independent sureties of £50 each, and that in default thereof he should be imprisoned for a further period of three months.

The prosecutor appealed from the said order to the Circuit Court and, on the appeal, the Circuit Court Judge (Judge Fawsitt) affirmed the conviction and sentence. At the hearing of the appeal, application was made by the solicitor for the prosecutor that the appeal should be allowed, both on the merits and on the ground that there was no evidence that Edward Quinn, the party aggrieved, had refused or declined to prefer the complaint. The solicitor, in his affidavit grounding the application for the conditional order of certiorari, stated that at no time during the course of the hearing of the appeal was it averred or proved in evidence that Edward Quinn had refused or declined to prefer the complaint against the prosecutor. The Circuit Court Judge refused the said application, so far as the merits were concerned, and, in the course of his judgment, stated that it appeared from, and was recited in, the order of the District Justice that Edward Quinn had refused or declined to prosecute, and he thereupon made an order reciting that Edward Quinn had refused or declined to prefer a complaint and confirming the conviction and sentence of the District Justice. The prosecutor obtained in the High Court a conditional order of certiorari in respect of the said order of the District Justice on the grounds:—1, that the sentence was in excess of that permitted by s. 42 of the Offences Against the Person Act, 1861, and was made without jurisdiction; 2, that the said order was bad for uncertainty in failing, in respect of the recognizances, to specify the person before whom the said recognizances should be entered into; and, in respect of the said order of the Circuit Court Judge on the grounds:—1, that the said order was made without and in excess of jurisdiction inasmuch as there was no evidence before the learned Circuit Court Judge that Edward Quinn, the party aggrieved, had declined to prosecute; 2, that, in the absence of evidence that the party aggrieved had declined to prosecute, the conviction in proceedings by the Attorney-General at the suit of Superintendent J. F. Hynes was without and in excess of jurisdiction; 3, that the sentence of the Court was in excess of that permitted by s. 42 of the Offences against the Person Act, 1861, and without jurisdiction; 4, that the said order was bad for uncertainty in failing in respect of the recognizances to specify before whom the recognizances should be entered into.

No affidavit was filed as cause by the prosecutor, and the respondents, by notice of motion under Or. LXXXIV, r. 250, of the Rules of the Supreme Court (Ir.), 1905, moved to show cause.

Cur. adv. vult.

Haugh J.:—

The judgment of the Court will be read by Mr. Justice Dixon.

Dixon J.:—

Sect. 24 of the Offences against the Person Act, 1861, conferred jurisdiction in cases of assault upon two justices

of the peace "upon complaint by or on behalf of the party aggrieved." Sect. 9 of the Summary Jurisdiction (Ireland) Act, 1862, made it lawful for the Justices at Petty Sessions, if they thought fit, to proceed with a charge under s. 42 of the Act of 1861, notwithstanding the party aggrieved might decline or refuse to prefer a complaint.

The effect of these sections seems to be that the District Courts, as the successors of Justices at Petty Sessions, have jurisdiction in cases of assault on the complaint of the party aggrieved, or of some person on his behalf, or, where the party aggrieved declines or refuses to prosecute, a person other than the party aggrieved entitled by law to prosecute. The question whether the party aggrieved has declined or refused to prosecute bears, therefore, on the competency of the particular prosecutor where he is not the party aggrieved or some person prosecuting on his behalf. The jurisdiction of the District Court, and, on appeal, of the Circuit Court is to hear and determine a charge of assault.

In R. (Prendergast) v. Justices of Waterford(1) it was decided by the King's Bench Division that such declining or refusing on the part of the party aggrieved was an initial step which must exist before the summons is issued when the prosecution is not by or on behalf of the party aggrieved. This decision was as to the point of time at which the declining or refusing might occur, the corollary and gist of the decision being that, once it had occurred, the party aggrieved could not afterwards change his mind so as to render the prosecution incompetent.

This seems to me quite a different thing to saying, as was contended here, that the occurrence of this event was a matter collateral or preliminary to the jurisdiction of the Court in the sense that, as the proposition is stated in some cases, the jurisdiction of the Court depended on its occurrence and the Court could not give itself jurisdiction by deciding it had occurred.

The principle which the prosecutor contends should be applied in the present case is that formulated by Coleridge J. in the well-known case of Bunbury v. Fuller(2) at p. 140 in the following words:—"Now it is a general rule, that no Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together the subject-matter which, if true, is within its jurisdiction, and, however necessary in many cases it may be for it to make a preliminary inquiry, whether some

collateral matter be or be not within the limits, yet, upon this preliminary question, its decision must always be open to inquiry in the superior Court." Perhaps due to its over-elaboration, this statement cannot be said to be a model of clarity; it leaves undefined what are the "merits" of a case or the "subject-matter" of a decision or a jurisdiction; it provides no test to determine the "collateral"nature of a point; and it is exemplified, in the passage immediately following it, by an illustration of what is called"the simplest case" of its application—a jurisdiction limited by reference to the locality of an occurrence—which is in the teeth of authority. Nevertheless, the mere obscurity of the passage, or its definitive defects, or...