The Gazette 1984

GAZETTE

JANUARY/FEBRUARY 1984

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. 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: Felicity Hogan

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

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