The State (O'Shea) . Bandon D.J. and Another

• Jurisdiction: Ireland
• Judgment Date: 01 January 1947
• Date: 01 January 1947
• Court: Supreme Court

The State (Kelly) v. District Justice for Bandon and Another.

THE STATE (at the prosecution of Thomas Kelly)

and

THE DISTRICT JUSTICE (Bandon District) and THE CIRCUIT COURT JUDGE OF CORK (1)

Supreme Court

Certiorari - Prosecutor charged with offence under Fisheries Act, 1939, and convicted before District Justice - Conviction affirmed on appeal - Prosecutor subsequently moving to quash original conviction and order made on appeal - Motion for certiorari brought fifteen months after original conviction - Conviction bad on its face - Whether prosecutor guilty of such laches as would disentitle him to relief.

The prosecutor was charged before a District Justice, with an offence under the Fisheries Act, 1939, and convicted. He served notice of appeal, but no sitting of the Circuit Court took place until almost twelve months after the conviction. Ten days before the appeal would have been heard, the prosecutor served notice of withdrawal of his appeal and accordingly the Circuit Court Judge made an order affirming the order and conviction. Three months later the prosecutor moved for a writ of certiorari to quash both orders. On the motion to make absolute the conditional order, the High Court was of opinion that there were good grounds for quashing the conviction, but that the conduct of the prosecutor was such that he had disentitled himself to relief through his delay in applying for the order of certiorari.

On appeal:

Held by the Supreme Court, reversing the High Court, that the principles on which certiorari should be granted had been laid down by a long line of decisions; that these principles must be applied by a Court in exercising its discretion and that according to these principles the prosecutor could not be held to have disentitled himself to the relief sought.

Motion on Notice.

Thomas Kelly, the prosecutor herein, was summoned at the suit of David Nyhan, Inspector of the Bandon Board of Fishery Conservators, to attend at Bandon District Court on the 5th April, 1944, on a charge of having in his possession or control, five salmon unlawfully captured contrary to s. 38, sub-s. 1 of the Fisheries Act, 1939. The summons was heard on the 21st April, 1944, and the prosecutor was convicted. The District Justice ordered that one-third of the fine of £20, which he imposed, should be apportioned to the Gárda Síochána Reward Fund. He did not set out in his order any determination that any member of the Gárda Síochána had been the means of bringing to justice the person by whom the offence was committed.

The prosecutor appealed against the conviction to the Circuit Court. By reason of the state of the list, the appeal did not come on for hearing until the 27th April, 1945. Prior to the hearing, the prosecutor withdrew his appeal. When the case came on for hearing, the Circuit Court Judge affirmed the conviction and sentence.

On the 23rd July, 1945, the prosecutor sought for, and obtained a conditional order of certiorari directed to the District Justice for the Bandon Area and the Circuit Court Judge of Cork to bring up for the purpose of being quashed, the...