The State (Taylor) v Wicklow Circuit Court Judge and Others

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1953
• Docket Number: (1949. No. 10 S.S.)
• Date: 01 January 1953

The State (Taylor) v. Circuit Court Judge of Wicklow and Others.

THE STATE (at the Prosecution of WILLIAM J. TAYLOR)

and

THE CIRCUIT COURT JUDGE for the COUNTY OF WICKLOW, THE DISTRICT JUSTICE for the DISTRICT COURT AREA OF BRAY (District No. 17), and the GOVERNOR OF MOUNTJOY PRISON, and In the Matter of the Courts of Justice Acts, 1924 to 1947, and In the Matter of the Constitution (1)

(1949. No. 10 S.S.)

High Court.

District Court - Jurisdiction - Prosecution for driving or attempting to drive mechanically propelled vehicle in a public place while drunk - Whether offence one known to the law - No proof offered of Road Traffic Act, 1933,having been brought into operation - Whether the fact that the Act was in operation ought to be judicially noticed - Habeas corpus - Certiorari -Road Traffic Act, 1933 (No. 11 of 1933), ss. 2, 30.

T. was prosecuted in the District Court and convicted, under s. 30 of the Road Traffic Act, 1933, of attempting to drive a mechanically propelled vehicle in a public place while drunk. He was sentenced to "one month's imprisonment with H.L." On appeal to the Circuit Court the prosecutor submitted inter alia 1, that the prosecution was not entitled to succeed in the absence of proof that Part III of the said Act (containing s. 30) had been brought into operation as provided by the Act.

The Circuit Court Judge ruled, in effect, that he was entitled to take judicial notice of the fact that the said Act was in force at the material time; he, therefore, refused to accede to this submission. It was further contended on behalf of the prosecutor that the conviction was bad as (a) it did not state that the offence was a statutory offence or specify the relevant statute; (b) it did not show on its face that s. 30 of the said Act was in force at the time of the alleged offence; (c) it charged an offence not known to the law, and imposed a sentence not known to the law, viz., "to be imprisoned for one month with H.L."

The Circuit Court Judge having dismissed the appeal and affirmed the conviction and sentence, the District Justice issued a warrant of execution of the sentence and the prosecutor was taken into custody and lodged in Mountjoy Prison. He thereupon obtained a conditional order of habeas corpus ad subjiciendum directed to the Governor of Mountjoy Prison, and a conditional order of certiorari, directed to the Circuit Court Judge and the District Justice, to have the conviction by the District Justice, the affirmance by the Circuit Court Judge, and the warrant of committal brought up into the High Court for the purpose of being quashed. On the application by the prosecutor to have the conditional orders made absolute it was

Held, by the High Court:—

1, That the Circuit Court Judge was entitled to make use of his general knowledge as a Judge gained in administering the Act for many years and he was entitled to take judicial notice of the fact that the Act was in force.

2, That s. 30 of the Act created two offences and that these had been charged in the alternative; that T. was convicted of one of the offences so created. The form of the conviction was the form provided in the Schedule to the District Court Rules. These Rules, made under statutory authority, provide that the forms in the Schedule are to be deemed to be sufficient in law. The

conviction was therefore good even though it did not contain either a statement to the effect that the offence was a statutory offence or any specific reference to the Act of 1933.

3, Adherence to the form of conviction provided the said Rules made it unnecessary to show on the face of the conviction that s. 30 of the said Act was in force at the time of the offence or conviction.

4, The sentence imposed by the Court was perfectly clear; even if it were not so, the words; "with H.L.," could be quashed and the sentence could stand as one of simple imprisonment.

The People (Attorney General) v. Kennedy, [1946] I. R. 517, distinguished.

Habeas corpus and certiorari.

The facts, which have been summarised in the headnote, appear fully in the Judgment of Mr. Justice Davitt, post.

Cur. adv. vult.

Maguire J. :—

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

Davitt J. :—

The Road Traffic Act, 1933, a statute consisting of 11 parts and 179 sections was passed by the Oireachtas on the 29th June, 1933. Sect. 2 provided that the Act should come into operation on such day or days as might be fixed therefor by any order or orders of the Minister for Local Government and Public Health either generally or with reference to any particular purpose or provision; and that different days might be so fixed for different purposes and different provisions of the Act. In fact the Minister made five separate orders bringing different provisions of the Act into force upon different dates, the last of these orders being made upon the 5th May, 1934, and having the effect that as from the 2nd July, 1934, the whole of the Act was in force.

Sect. 30 of the Act (so far as it is material at the moment) provides as follows:—

"(1) Every person who drives or attempts to drive a mechanically propelled vehicle in a public place while he is

drunk shall be guilty of an offence under this section and on summary conviction thereof shall be liable, in the case of a first offence under this section, to a fine not exceeding fifty pounds or, at the discretion of the Court, to imprisonment for any term not exceeding three months or to both such fine and such imprisonment and, in the case of a second or any subsequent offence under this section to a fine not exceeding one hundred pounds or, at the discretion of the court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment.

(2) Whenever a person is convicted of an offence under this section the court by whom such person is so convicted shall make an order (in this Act referred to as a consequential disqualification order) declaring such person to be disqualified for holding a driving licence during such period as such court shall think proper and shall specify in such order but not less than the appropriate minimum period."

On the 5th November, 1948, the prosecutor, William J. Taylor, appeared in the Bray District Court, before Mr. Price, District Justice, one of the respondents, to answer the complaint of Superintendent J. Hynes of the Garda Siochana, of what was in fact an offence against s. 30 of the Road Traffic Act, 1933. He was convicted and sentenced to a month's imprisonment and disqualified for holding a driving licence for twelve months. The conviction subsequently drawn up and signed by the District Justice is as follows:—

"Be it remembered that on the 5th day of November in the year of Our Lord one thousand nine hundred and forty-eight before me, Liam Price, the Justice of the said District, sitting for the Court area aforesaid, in the said District, a complaint was made that William J. Taylor of 24 Myrtle Park, Dun Laoghaire, did on the 25th day of September in the year of Our Lord one thousand nine hundred and forty-eight at Quinsboro' Road, Bray, in the County of Wicklow, drive or attempt to drive a mechanically propelled vehicle, to wit, Motor Car Z.C. 4139, in a public place while drunk: I did therefore adjudge that the said defendant be convicted of attempting to drive while drunk and sentenced to be imprisoned for one month with H.L. Ordered that the defendant be disqualified for holding a driving licence for 12 months.

Signed, L. Price,

Justice of the District Court.

This 5th day of November, 1948."

Although this is entitled, "Copy conviction or order,"it is in fact the original signed by the District Justice.

Against this conviction and sentence he duly appealed to the Circuit Court, and on the 10th February, 1949, his appeal was heard by Judge Fawsitt (also a respondent) who affirmed the conviction and sentence.

On the hearing before the District Justice no proof was given of the Minister's order which brought s. 30 of the Road Traffic Act into force, nor was any proof given that itwas in force at the material time. On the hearing of the appeal likewise, no proof was given of the Minister's order or of the fact that s. 30 was in force at the material time. At the conclusion of the evidence on behalf of the complainant counsel for Mr. Taylor directed the attention of the Court to this omission, and, citing the case of The People (Attorney General) v. Kennedy(1), submitted that there was...