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GAZETTE
JANUARY/FEBRUARY 1984
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
CRIMINAL LAW
Whether a Justice, having accepted juris-
diction in a matter, and having entered on
the evidence can subsequently decline
summary jurisdiction of the matter, on
hearing evidence that the alleged offences
had been committed while the accused was
on Bail in relation to similar ofTences.
On the morning of 8 March, 1982, the
Prosecutor, Gerard O'Hagan, appeared
before the Respondent, District Justice
Sean Delap, charged with two offences
one of common assault and one of
indecent assault, contrary to Section 62,
Offences against the Person Act,
allegedly committed on 27 Fcburary,
1982. The Respondent accepted jurisdic-
tion, the State having no objection to the
charges being dealt with summarily. The
accused was remanded to the afternoon
of the same day.
On the afternoon of 8 March, 1982, the
Prosecutor appeared before the
Respondent in relation to a charge of
indecent assault allegedly committed on
14 February, 1982. On an earlier occasion
he had pleaded guilty and had been
remanded to this date for the purposes of
sentencing. While addressing the
Respondent in relation to this earlier
charge, the Prosecutor's Solicitor
indicated that the Prosecutor wished to
change the plea in relation to the charges
allegedly committed on 27 February,
1982, whereupon the Respondent
informed the Prosecutor's Solicitor that
he was no longer accepting summary
jurisdiction in relation to these latter
offences on the basis that they had been
committed while the Respondent was on
Bail in respect of the earlier charges. He
remanded the Prosecutor in custody to 22
March, 1982. On that date the
Respondent made an Order returning the
Prosecutor for Trail to the Dublin Circuit
Court on a plea of not guilty.
A Conditional Order of Certiorari
quashing the Return for Trail Order was
made on 9 June, 1982, on the following
grounds:—
(1) That the Respondent, having
initially accepted jurisdiction in
respect of the said offences, was not
entitled to decline it subsequently;
and,
(2) that he was not entitled to decline
jurisdiction for reasons having
reference to the character of the
accused person, and that he had
done so on the occasion in question.
Showing Cause why the Order should
not be made absolute the Respondent
relied on the fact that it came to his
knowledge in the course of the said
hearings that the offences with which the
Prosecutor was secondly charged were
alleged to have been committed while he
was on Bail. On this basis he was entitled
to decline jurisdiction.
In deciding whether the Conditional
Order of Certiorari should be made
absolute or the cause shown against it
should be allowed the High Court
considered two matters:—
(1) Whether the Respondent was
precluded form declining summary
jurisdiction having previously
accepted jurisdiction and fixed a
date for dealing with them.
(2) Whether he was entitled to base the
decision to decline jurisdiction on
the circumstance that it came to his
notice that the latter offences were
alleged to have been committed
while the Prosecutor was out on Bail
pending the imposition of sentence
for a similar charge in relation to
which he had pleaded guilty.
In the present case, the Court, citing
Section 2(2)(a) of the Criminal Justice
Act 1951 which provides:
"The District Court may try
summarily a person charged with a
scheduled offence if:
(i) The Court is of the opinion that the
facts proved or alleged constitute a minor
offence fit to be so tried," held, in relation
to the first point that despite the fact that
a District Justice has previously formed
an opinion in relation to jurisdiction, he is
entitled to subsequently decline jurisdic-
tion and discontinue the summary Trial.
Furthermore, in a case where a Trial has
never commenced a Justice will not be
precluded from taking the same course by
reason of the fact that he had previously
indicated an intention to allow the matter
be dealt with summarily and had actually
fixed a date for those proceedings.
In relation to whether a Justice is
entitled to decline jurisdiction on the
basis that the accused man was on Bail on
a similar charge when the latter offence
was alleged to have been committed, the
Court held that such a circumstance
could be taken into consideration by a
District Justice because where such a
situation arose a sentencing Court would
be entitled to regard the second offence as
a more serious offence and this fact would
have a material bearing on the severity of
sentence which a Court would impose. In
the present case, the Court cited the
relevant Statutory Provisions in relation
to penalty, Section 62 of the Offences
against the Person Act, 1861, which
provides for a maximum penalty of ten
years penal servitude or alternatively a
sentence of two years imprisonment for
the misdemeanour of indecent assault on
any male person by a Court trying the
charge on indictment while the maximum
sentence the District Court could impose
would be one of 12 months imprison-
ment. It concluded that the Respondent
took the view that a situation had arisen
where the Court imposing sentence
should not be circumscribed by the
limited sentencing powers of the District
Court, and therefore it was not a fit case
to be tried summarily. In the opinion of
the Court, the Respondent was entitled to
decline jurisdiction in this case and
therefore it allowed the cause shown
against the making absolute of the
Conditional Order of Certiorari already
granted.
The State (at the Prosecution of Gerard
O'Hagan) and District Justice Delap. High
Court (per O'Hanlon. J.), 18 October.
1982 - unreported.
Felicity Hogan
SALE BY PERSONAL REPRESEN-
TATIVE — Personal representative —
trust for sale — power of sale —delay —
purchaser on enquiry — Section 51,
Succession Act, 1965.
A Contract for the sale of property was
entered into on 7 August, 1979. The
leasehold interest in the property was
vested in Maud Robb at the date of her
death on 15 May, 1946. Under her Will,
she bequeathed this interest to her
Executor and trustee, upon trust for sale
and to hold the proceeds of sale in trust
for himself and her two daughters in
specified proportions. The executor
obtained a Grant of Probate on 11 July,
1946, and himself died on 11 August,
1979. A Grant of Administration
de bonis
non
was taken out by the Testatrix's
daughters in 1981.
The only evidence given as to the
reason for the delay in selling the
property was a letter dated 11 June, 1980,
suggesting that the administration of the
estate was deliberately postponed by the
Executor with the consent of the bene-
ficiaries. However, the letter also showed
that the rents received from the property
were being divided between the persons
entitled under the Will trust, which
prima
facie
suggested that the trust for sale was
being operated.
The Purchaser refused
accept title
from the administratrices
de bonis non,
contending:
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