The State (McLoughlin) v Judge Shannon

• Jurisdiction: Ireland
• Judgment Date: 21 April 1948
• Date: 21 April 1948
• Court: High Court

High Court.

The State (McLoughlin) v. Judge Shannon.

THE STATE (at the Prosecution of VINCENTMcLOUGHLIN)

and

HIS HONOR JUDGE SHANNON, President of the Circuit Court, and DISTRICT JUSTICE T. G. O'SULLIVAN (1)

District Court - Prosecution for dangerous driving - Notice of intention to prosecute served on defendant but addressed in wrong name - Two summonses charging offences under ss. 50 and 51 of the Road Traffic Act,1933, served on defendant, also addressed in wrong name - Summonses struck out by District Justice - Fresh summonses brought in correct name - No fresh notice of intention to prosecute given - Defence of autrefois acquit - Conviction by District Justice on summons under s. 51 and fine of £5 imposed - Conviction affirmed on appeal but order of District Justice varied - Two convictions and two separate fines recorded - Whether s. 51 of Road Traffic Act, 1933, creates one or two offences - Whether one penalty in respect of two offences good - Road Traffic Act, 1933 (No. 11 of 1933), s. 51; s. 55, sub-s. 2.

Certiorari.

The prosecutor was, on 20th November, 1946, served with a notice of intention to prosecute in respect of driving an omnibus in contravention of ss. 50 and 51 of the Road

Traffic Act, 1933. The name in which the notice was served was "Vincent O'Loughlin" but he acknowledged the receipt thereof in writing on the notice and signed that acknowledgment in his correct name "Vincent McLoughlin."The guard serving it then put in the correct name on the face of the notice. On the 26th February, 1947, the prosecutor was served with two summonses in the name of O'Loughlin alleging offences under ss. 50 and 51 of the Act. These summonses were heard before the District Court on 19th March following, and an objection was taken that the summonses were not in the correct name of the prosecutor. An objection was also taken that the notice of intention to prosecute was bad on the ground that it was also in the wrong name, and, whatever power the Justice had to amend the summonses by inserting the correct name, he had no such power to amend the notice, as it was a statutory notice over which the Justice had no power of amendment as it was a preliminary requirement giving him jurisdiction to hear the charges. The District Justice questioned the defendant as to his name and required him to produce his driving licence to prove it, which he did. The Justice then struck out the two summonses, noting in his Minute Book:"Defendant's name McLoughlin."

On 2nd May, 1947, the defendant was served with two further summonses in his correct name charging him with the same offences as had been charged in the previous summonses. At the hearing of these summonses in the District Court on 17th June, 1947, objection was taken, on behalf of the prosecutor, to the hearing of the summonses by the District Justice on the ground that he had already adjudicated that the notice was bad and on the ground of autrefois acquit. The Justice stated that he had previously held that the summonses were bad as being in the wrong name, but the notice was good as it had been served upon the prosecutor, and he refused to entertain the plea of autrefois acquit. He then proceeded to hear the two summonses and convicted the prosecutor on the summons under s. 51 of the Road Traffic Act and fined him £5 with a month to pay. The summons in respect of the charge under s. 50 was dismissed by the Justice.

From that conviction the prosecutor appealed to the Circuit Court and the appeal was heard by Judge Shannon, President of the Circuit Court, on 21st October and 10th November, 1947, who held that the notice of intention to prosecute was good, and also that the plea of autrefois acquit did not lie. He affirmed the conviction but held that the Justice's order was bad as it convicted of two offences under s. 51 but only inflicted one fine; he therefore varied the order of the District Justice and imposed a fine of £2 10s. 0d. in respect of each offence.

The prosecutor then sought and obtained a conditional order of certiorari relating to the orders of the District Court and of the Circuit Court on the following grounds:—

1. That the said convictions and orders were made without and in excess of jurisdiction and were ultra vires and void, inoperative and of no legal effect.

2. That the said convictions and orders were bad on their faces as not containing all the essentials of valid convictions and orders, and did not show any valid or legal conviction or order.

3. That the said convictions or orders were not specific and certain, and did not show in respect of which of the two offences charged in each charge preferred against the prosecutor the said convictions and orders were purported to be made.

4. That the said convictions and orders were bad on their faces as showing two convictions and orders in respect of one offence. That the plea of autrefois acquit prevailed.

5. That the summons on which the said convictions and orders were based was bad on its face, and further had not been issued or signed by a Justice or Peace Commissioner.

6. That the Rules of the District Court were not complied with, and in particular rr. 8 and 35.

7. That the said convictions and orders were erroneous in law and in disregard of the essentials of justice and were against natural justice.

8. That the jurisdiction of the Circuit Court to hear an appeal from the District Court is based on the validity of the original order of the District Court.

A further ground (not contained in the above) was argued, by leave of the Court, viz., that the notice which was served on the defendant was bad as it was addressed to him in the wrong name.

M. was served with a notice of intention to prosecute for offences under ss. 50 and 51 of the Road Traffic Act, 1933, but the said notice was addressed to O. M. signed his correct name on the back of the notice and, thereupon, the guard serving it inserted the correct name upon the face of the notice. Subsequently, M. was served with two summonses, one charging an offence under s. 50 and the other charging an offence under s. 51, both summonses bearing the name of O. At the hearing in the District Court, the District Justice struck out the summonses as they were in the wrong name. Later, two fresh summonses were served on M., identical in every way with the previous ones, but they bore the correct name. No fresh notice of intention to prosecute was served. The District Justice heard these summonses and convicted on that under s. 51 and imposed a fine of £5. On appeal, the Circuit Court affirmed the conviction but held that s. 51 constituted two offences and, therefore, the order of the District Court was varied and two convictions were recorded and a fine of £2 10s. 0d. was imposed in respect of each. M. obtained a conditional order of certiorari to quash the orders of the District Court and Circuit Court. On the...