Wilson v Neilan
| Jurisdiction | Ireland |
| Judge | Miss Justice Carroll |
| Judgment Date | 18 April 1985 |
| Neutral Citation | 1985 WJSC-HC 1658 |
| Docket Number | No. 361 S.S/1984 |
| Court | High Court |
| Date | 18 April 1985 |
1985 WJSC-HC 1658
The High Court
Between:
and
Citations:
ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381, 1982 ILRM 590
CHARLTON V IRELAND 1984 ILRM 39
COURTS OF JUSTICE ACT 1924 S79
DCR 1948 r25
DCR 1948 r44
ROCHE, STATE V DELAP 1980 IR 170
ROLLINSON, STATE V KELLY 1984 IR 248 1984 ILRM 625
RSC O.128 r12
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S115(1)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S115(1)(b)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S115(1)(b)(i)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S115(1)(b)(ii)
SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S115(1)(d)
Synopsis:
CRIMINAL LAW
Offence
Penalty - Summary trial - Severity of penalty - Whether a minor offence triable summarily - Several offences recited on single summons - Aggregation of possible penalties incorrect test - Each offence examined individually - (1984 No. 361 SS - Carroll J. - 18/4/85). [1987] ILRM 118 [1985] IR 89
The State (Wilson) v. Neilan
CRIMINAL LAW
Offence
Place - False statement - Unemployment benefit - Statutory form containing false statement - Form handed to police for transmission to neighbouring unemployment exchange - Form delivered to police in one District Court area - Exchange in different District Court area - Offence committed in area in which unemployment exchange situated - Conviction by District Justice having jurisdiction in area containing unemployment exchange - Conviction valid - Social Welfare (Consolidation) Act, 1981, s. 115 - (1984 No. 361 SS - Carroll J. - 18/4/85).
The State ( Wilson) v. Neilan [1987] ILRM 118 [1985] IR 89
SOCIAL WELFARE
Benefit
Unemployment - Application form - False statement - Place of offence - Form delivered to police in one District Court area - Unemployment exchange in different District Court area - Offence committed in area in which unemployment exchange situated - Conviction by District Justice having jurisdiction in area containing unemployment exchange - Conviction valid - Social Welfare (Consolidation) Act, 1981, s. 115 - (1984 No. 361 SS - Carroll J. - 18/4/85). [1987] ILRM 118 [1985] IR 89
The State (Wilson) v. Neilan
STATE SIDE
Certiorari
Criminal law - Conviction - Appeal pending - Election - Order of conviction made by District Court - Appeal to Circuit Court lodged by accused - Failure to establish jurisdictional incapacity of Circuit Court - Cause shown allowed - (1984 No. 361 SS - Carroll J. - 18/4/85). [1987] ILRM 118 [1985] IR 89
The State (Wilson) v. Neilan
As a preliminary point Counsel for the Respondent applied to have the word "indictable" deleted in the notice showing cause where it appeared in paragraph 4 (ii). He also applied for liberty to show cause by affidavit. The deletion was allowed and the Respondent was permitted to show cause by affidavit together with the grounds set out in the notice showing cause (as amended) on the basis that the issues between the parties would not otherwise adequately be before the Court (Order 128 Rule 12) and also that the grounds set out in the notice would normally have been set out as part of the affidavit showing cause. The Prosecutor, having been offered an adjournment following the granting of this application, elected to proceed on that day without further delay.
The facts are set out in the grounding affidavit of Mary Devlin, Solicitor for the Prosecutor, and the affidavit showing cause by C.F. McLoughlin, State Solicitor.
The Prosecutor was charged on foot of a summons headed "The District Court, District Court area of Letterkenny, District No. 1", as follows:
"Whereas a complaint has been made to me that you the said Defendant on the months of February, March, April, May, 1982 at Letterkenny within the Court Area and District "aforesaid did for the purpose of obtaining unemployment assistance (amended to "benefit") make a statement which was false and misleading in a material respect, to wit, that you represented yourself to be unemployed on 15, 22, 23 February, 1982, 1, 3, 8, 15, 19, and 22 March, 1982, 13, 19, 26, April, 1982, 3, 10, May, 1982, where you were not so unemployed on those days contrary to the provisions of Section 115 (1) of the Social Welfare (Consolidation) Act, 1981."
The Prosecutor was tried in Letterkenny by the Respondent on the 31st of May, 1984.
As there is no Employment Exchange near where he resided, the Prosecutor in order to claim unemployment benefit had to fill out a form U.B.8 sent to him by post at his address (in the District Court Area of Raphoe) from the Unemployment Exchange at Letterkenny. This form was required to be completed on a Tuesday in relation to each week day of the preceding week. The space beside each day had to be marked by an applicant to indicate if he was working that day. The prosecutor presented U.B.8 forms to various Gardaí at the Garda Station at Carrigans (District Court Area of Newtown Cunningham) for counter-signature on different Tuesdays. The forms were posted by the Gardaí to the Unemployment Exchange at Letterkenny. The staff there, relying on the forms, sent unemployment benefit to the prosecutor's local Post Office to be collected there by him.
There was evidence that the Prosecutor was employed on the dates contained in the conviction orders which were dates for which U.B.8 claim forms signed by the Prosecutor had been submitted to the Letterkenny Unemployment Exchange. There were also receipts for payment of unemployment benefit to the Prosecutor stamped on the back of the said forms.
The Respondent indicated that he convicted in respect of every date set out on the summons and asked the State Solicitor whether he wanted a conviction on each offence and the latter asked the Respondent to record a conviction in respect of each offence and to impose a penalty in respect of one or two of the offences. The Respondent then proceeded to convict in respect of every date montioned in the summons and imposed the penalty set out in his order in respect of the 13th of April, 1982 and on the 3rd of May 1982.
"On the 31st day of May, 1984, at the special sitting of the District Court held in Letterkenny, County Donegal, in the said District, before me John F. Neilan the Justice for the time being assigned to the said District, a complaint was heard that John Wilson of Sonlin House, St. Johnson, Lifford, County Donegal."
(1) On the 13th of April 1982 at Letterkenny, within the Court Area and District aforesaid, did for the purpose of obtaining unemployment benefit make a statement which was false and misleading in a material respect, to wit, that he represented himself to be unemployed on the 13th day of April 1982 contrary to the provisions of Section 115 (1) of the Social Welfare (Consolidation) Act 1981.
(2) On the 3rd day of May 1982 at Letterkenny within the Court Area and District aforesaid did for the purpose of obtaining unemployment benefit make a statement which was false and misleading in a material respect, to wit, that he represented himself to be unemployed on the 3rd day of May 1982 contrary to the provisions of Section 115 (1) of the Social Welfare (Consolidation) Act 1981.
Defendant convicted of the said offence and ordered to pay for fine the sum of £250-00 within seven clear days and in default of such payment to be imprisoned for the period of six months in the Prison at Mountjoy Dublin unless the the said sum be sooner paid AND sentenced to six months” imprisonment without hard labour in the Prison at Mountjoy, Dublin. Fix recognizances in the event of an appeal, Defendant in the sum of £100 with one sufficient surety in the sum of £100.
Defendant convicted of the said offence and ordered to pay for fine the sum of £250 within seven clear days and in default of such payment to be imprisoned for the period of six months in the Prison at Mountjoy Dublin unless the said sum be sooner paid AND sentenced to six months” imprisonment without hard labour in the Prison at Mountjoy, Dublin. Fix recognizances in the event of an appeal, Defendant in the sum if £100 with one sufficient surety in the sum of £100."
A Conditional Order of Certiorari was granted on the 9th July, 1984, on the following grounds:-
(a) That the said Orders failed to disclose an offence known to the law and specifically to set out an offence contrary to Section 115 (1) of the Social Welfare (Consolidation) Act 1981;
(b) That the evidence failed to disclose any evidence whatever of an offence contrary to Section 115 (1) (b) (i), was in fact entirely directed to the offences created by Section 115 (1) (b) (ii);
(c) That the Respondent had no jurisdiction to deal summarily with the said complaint at Letterkenny District Court;
(d) That the offences charged on the summons did not constitute a minor offence fit to be tried summarily;
(e) That the said Order purported to record two convictions in respect of a single complaint; further, or in the alternative, that the Order was bad for duplicity;
(f) That the conviction No. 2 purported to record a conviction which was neither charged against the Defendant nor supported by any evidence whatever; and
(g) That the said Order did not represent the Order pronounced in Court by the Respondent which said spoken Order purported to convict in relation to each date set out in the Summons.
(1) The Court in its discretion should refuse the relief of certiorari by reason of alternative relief having been sought by the Prosecutor in filing an appeal to the Circuit Court against the Order of the Prosecutor.
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