Supreme Court allows appeal on s.4 Summary Jurisdiction Act 1857 constitutionality, dismissing other points as premature.

[2003] IESC 46

THE SUPREME COURT

289/01

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Between:

BRIAN FITZGERALD

Applicant/Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTION, IRELAND AND THE ATTORNEY GENERAL

Respondents/Appellants

JUDGMENT of Mr. Justice Hardiman delivered on the 25th day of July, 2003.

1. I agree with the judgment of the learned Chief Justice in which he finds that s.4 of the Summary Jurisdiction Act 1857 is not

inconsistent with the Constitution and has, therefore, been carried forward by Article 50 of the Constitution.

2. In the course of the hearing of this appeal, however, certain points arose as to the true construction of the Act of 1857. They do

not determine the Constitutional issue, but are nonetheless important. To summarise my findings in relation to them: I consider,

firstly, that the established existence of a “question of law” as opposed to fact, as a ground of a District Judge’s decision against

which it is desired to appeal by Case Stated, is a condition precedent to the power of such judge to state a Case. It is not an aspect

of the issue which may subsequently arise as to whether the request for a Case Stated is “merely frivolous”.

3. Secondly, no Case has yet been stated by the learned District Judge in this instance. Only the prosecutions draft case stated

exists. I consider that it is inappropriate in these circumstances to express any view at all on the questions of whether the learned

District Judge’s decision did or did not involve a question of law, and whether the request for the Case Stated can be regarded as

“merely frivolous”, in the statutory phrase.

4. In my view, the Constitutional issue raised in this case only escapes being moot only by reason of the fact that, by s.2 of the Act

of 1857, the service of a notice requiring a case stated “suspends” the District Court decision. It is unnecessary and premature to

express any conclusions, even very limited ones, on the assumption that the recitals contained in the draft case stated prepared by

the prosecution are correct or will be adopted by the learned District Judge. I believe that the draft document has no status

whatever.

5. I regard these issues as important, as they relate to the circumstances in which an acquittal by a court of competent jurisdiction

can be suspended and perhaps overturned. Since agreement that the impugned provisions are consistent with the Constitution does

not necessarily imply agreement on the issues mentioned, I have ventured to prepare this separate judgment.

6. This is an appeal against the judgment and order of the High Court (Kearns J.) delivered the 4th day of May, 2001 whereby it was

declared that a portion of s.4 of the Summary Jurisdiction Act, 1857 was inconsistent with the provisions of Article 34(1) of the

Constitution and was, therefore, not carried forward by Article 50. It was also declared that portion of Order 102 Rule 15 of the

District Court Rules 1997 was ultra vires the powers vested in the District Court Rule Committee.

7. Each of these provisions relate to the power, and in certain circumstances the obligation, of a district justice to state a Case

pursuant to s.2 of the Act of 1857. In each case, the portion invalidated related to the proviso that (in the words of the 1857 Act):-

“The justice or justices shall not refuse to state a case where application for that purpose is made to them by or under

the direction of his Majesty’s Attorney General.”

8. The persons now entitled to require a district judge to state a case in circumstances where he has no option but to do so under

the Statute and the Rules are the Attorney General, The DPP, a minister of the Government or a minister of State or the Revenue

Commissioners.

The factual background.

9. On the 12th February, 1998 the applicant, Mr. Fitzgerald, was acquitted in the District Court of the offence of driving with excess

alcohol in his urine contrary to s.49(3) and (6)(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act, 1994.

10. On the 25th February, 1998 Mr. Fitzgerald’s solicitors were served with two documents. The first was addressed to the learned

district judge who had acquitted the defendant and said:-

“Take notice that the above-named complainant being dissatisfied with your determination of the above proceedings on

the 12th day of February, 1998 as being erroneous in point of law, DOES HEREBY APPLY to you to state and sign a Case

setting forth the facts and grounds of such determination for the opinion thereon of the High Court”.

11. This was accompanied by an unsigned copy of a document entitled “Appeal by way of Case Stated”. The contents of this

document sets out a version of the evidence which was before the District Court. It then contains a statement that the learned

District Judge regarded the prosecuting garda as a witness on whose evidence he could rely. It recited the acquittal of the defendant

and ended as follows:-

“(7) The opinion of the High Court is sought as to whether I was correct in law in dismissing the said charge brought

against the respondent, under Article 49(3) and (6)(a) of the Road Traffic Act, 1961, as inserted by s.10 of the Road

Traffic Act, 1994, on the grounds that the prosecuting garda had given evidence that the respondent had been given a

large alcoholic beverage after the driving complained of and before the specimen was subsequently taken from him”.

12. This document was prepared for the signature of the learned District Judge but was not signed by him.

13. The service on Mr. Fitzgerald of the document entitled “Appeal by Way of Case Stated” seems to have given rise to confusion. By

Order 62 of the Rules of the Superior Courts, a party who is appealing by way of case stated must give notice of this appeal to the

party who succeeded in the District Court “immediately before transmitting the case to the Central Office”. By Order 62 Rule 1

transmission to the Central Office is to occur within three days of receiving the case as actually stated by the District Judge.

Normally, the fact that the judge has stated the case is signified simply by his signature on the original of the case stated. The

service of the document on the defendant would imply to anyone familiar with the Rules that the case was about to be transmitted to

the Central Office which in turn implies that it had been signed within the preceding three days by the District Judge. It was

presumably on that basis that the applicant sought relief by way of judicial review. There is no requirement to serve the party who is

successful in the District Court until after the case has been stated.

14. This point was not raised on either side and I do not regard it is as critical to the outcome of the case. However I think it is a

significant feature of the procedural history which, perhaps, casts some light on the question of whether these proceedings are

premature, which is considered below. In my view the grounds on which the Constitutional issue avoids being moot are narrow ones. I

do not believe the Court should pronounce or imply any view beyond the scope of the immediate issues.

15. On the 20th July, 1998 the applicant obtained leave to seek judicial review by way of prohibition and declaration. He sought an

Order of Prohibition prohibiting the Director from bringing an appeal by way of Case stated in the manner intimated by the service of

documents on the applicant. This relief might more appropriately have been sought by way of injunction. He then sought five

declarations, all attacking the validity of Order 102 Rule 15 of the District Court Rules.

16. After a very long interval, on the 13th March, 2001 the applicant was granted leave to amend his statement grounding the

application for judicial review so as to add the following reliefs:-

“(a) A declaration that s.4 of the Summary Jurisdiction Act, 1857 is invalid having regard to the provisions of Article 34 of

the Constitution of Ireland, 1937.

(b) A declaration that s.4 of the Summary Jurisdiction Act, 1857 is inconsistent with the provisions of the Constitution of

Ireland 1937 and was not carried over by Article 50 of Constitution of 1937.

(c) In the alternative a declaration that s.4 of the Summary Jurisdiction Act, 1857 was repealed by s.83 of the Courts of

Justice Act, 1924”.

17. At page 3 of the judgment of the learned trial judge it is recited that:-

“In the course of the hearing before this Court the various reliefs sought and the grounds relied upon boiled down to the

net issue as to whether s.4 of the Summary Jurisdiction Act, 1857 was incompatible with the provisions of the

Constitution”.

Statutory provisions.

18. The statutory provision for a case stated pursuant to the Act of 1857 is set out in the judgment of the learned High Court Judge,

which also records that the applicant’s original contention that the provision for such case stated had been impliedly repealed was

withdrawn. The central feature of the jurisdiction is set out in s.2 of the 1857 Act:-

“After the hearing and determination by a justice or justices of the peace of any information or complaint which he or

they have power to determine in a summary way, by any law now in force or hereafter to be made, either party to the

proceedings before the said justice or justices may, if dissatisfied with the said determination as being erroneous in

point of law, apply in writing within three days after the same to the said justice or justices to state and sign a case

setting forth the facts and the grounds of such determination, for the opinion thereon of [The High Court]”. (Emphasis

added).

19. Section 4 of the same Act, provides that a justice may refuse to state a case if he is “of opinion that the application is merely

frivolous, but not otherwise”. There then follows the words quoted earlier in this judgment prohibiting such justice from refusing to

state a case when the application to do so comes from official quarters. There follows at s.5 a provision for a disappointed applicant

for a case stated to apply to the High Court for an order requiring a case to be stated.

20. Apart from incidental changes, such as that in the nomenclature of the judges who exercise summary jurisdiction, the substantive

amendment to the above provisions was brought about by s.51 of the Courts (Supplemental Provisions) Act, 1961. That measure

firstly “extended” s.2 so as to enable a case to be stated in any proceedings heard in the District Court except proceedings relating

to the non-summary trial of an indictable offence. It continued the requirement that a party seeking a case stated had to be

“dissatisfied with such determination as being erroneous in point of law”. It extended the time for applying for a case stated to

fourteen days. In general, this measure mirrors the language of the 1857 Act.

21. It is then provided that once an application pursuant to s.2 of the 1857 Act is made the determination of the District Court in

which it applies “shall be suspended”, until the case stated has been heard and determined or, if the application is refused, until such

refusal.

22. It was common case that s.4 of the Act of 1857 was the statutory basis for Order 102 Rule 15 of the District Court Rules.

Developments on the hearing of the appeal.

23. The points argued in the High Court raised the question of whether s.4 of the Act of 1857, and the Rules deriving from it, were

constitutionally objectionable either as an interference with a judicial discretion in a matter relating to the exercise by a judge of his

jurisdiction, and/or as an unlawful discrimination between a defendant on the one hand and the Director of Public Prosecutions on the

other.

24. However, on the hearing of this appeal other issues arose. After the initial hearing the Court relisted the case for the purpose of

hearing argument on the following four points:-

(i) Whether a district judge who was asked to state a case pursuant to s.2 of the Summary Jurisdiction Act, 1857 must

first satisfy himself whether a point of law within the meaning of the Section has arisen; and

(ii) if so, whether the provisions of s.4 of the Act enabling the judge to refuse to state a case where he is of the opinion

that the application is merely frivolous do not come into operation in a case where the judge is satisfied that such a point

of law arises; and

(iii) if so, whether the determination by the District Judge in the present case involves the resolution by him of a question

of fact only; and

(iv) if so, whether the jurisdiction of the judge to state a case pursuant to s.2 of the Act became operative at any stage

of this case.

25. The parties subsequently made further oral and written submissions on these questions.

Significance of the Court’s questions.

26. It appears to me that the questions raised by the Court, or at least some of them, logically arise prior to addressing the question

of the constitutional status of s.4 of the Act 1857. That Section follows s.2 in the statutory scheme. The latter section provides for

the circumstances in which a person may apply for a case stated. Section 4, on the other hand creates the power to refuse to state

a case in particular circumstances and further provides that this power does not apply when the application is made by a relevant

official person. Section 4, in other words, assumes the existence of a valid application.

27. The most salient limitation on the right to apply for a case stated is that one must be dissatisfied with the District Court decision

“as being erroneous in point of law”. This is emphasised throughout the original statutory scheme. The recital at the commencement

of the Act of 1857 is in these terms:-

“Whereas it is expedient that provision should be made for obtaining the opinion of a superior court on Questions of Law

which arise in the exercise of summary jurisdiction by Justices of the Peace”.

28. Section 2 contains the phrase “erroneous in point of law” quoted above.

29. Section 6 of the Act provides that:-

“The Court to which a case is transmitted under this Act shall hear and determine the Question or Questions of Law

arising thereon, and shall thereupon reverse, affirm, or amend the Determination in respect of which the Case has been

stated”.

30. Moreover, the Judge on whom an application for a case stated on the basis set out has been served is obliged (unless one of the

exceptions applies) “to state and sign a Case setting forth the Facts and the Grounds of such Determination, for the opinion thereon

of [The High Court]”.

31. It therefore appears that the text and structure of the Acts plainly indicate that an application for a case stated may only be

made and granted in the first instance if it concerns a question or questions of law. This view is confirmed by a consideration of the

authorities. From Attorney General v. McLoughlin [1931] I.R. 480, a case dealing with the power to state a consultative case under

s.83 of the Courts of Justice Act, 1924, to DPP v. Nangle [1984] ILRM 171, these are uniformly supportive of the view that the

jurisdiction to state a case as to alleged error or difficulty in point of law “is exclusively confined to correcting errors of law by an

inferior court in the determination of proceedings before it”, to quote the words of Finlay P. (as he then was) in the last mentioned

case. That case, indeed, is not without parallel to the present one. It was a case stated by way of appeal against acquittal on an

assault charge. Finlay P. observed that:-

“Whilst the reported decisions on this matter and the experience of the Court is that it [the jurisdiction to state a case

under the 1857 Act] has almost universally been confined to cases of appeals against conviction by a district justice,

there can be no valid distinction in principle which could make it inapplicable to a like appeal against an acquittal. That

statement can be said to be subject to the qualification that in the case of an appeal against an acquittal the onus of

proof beyond a reasonable doubt rests upon the prosecution and that includes, as occurred in this case, the onus of

negativing by a standard of proof beyond a reasonable doubt, a defence such as self defence”.

32. Later in the judgment, the passage first quoted above appears. Having asserted that the jurisdiction is confined to correcting

errors of law, the learned judge went on to say that:-

“It would constitute an unwarranted interference by me to hold that the evidence so summarised could not have raised a

reasonable doubt in the mind of the District Justice. He had the opportunity of hearing the witnesses in this case and of

listening to their answers to questions both in direct and cross-examination dealing no doubt in significant detail with the

incidents which occurred”.

33. It appears to me that the effect of ss. 2 – 6 of the Act of 1857, as amended, is to create a special statutory jurisdiction in the

Superior Courts. This jurisdiction is of a limited nature. Firstly, it is appellate: this appears from the latter part of s.2 where a party

seeking the case is designated “the appellant”. Secondly, the right to seek a case stated by way of appeal is confined to a party who

is “dissatisfied with the said determination as being erroneous in point of law” (emphasis added). It is not available, therefore, to a

party dissatisfied with the decision of the District Court on the grounds that the District Judge has taken one view rather than

another of the evidence or has accorded credence to one witness and withheld it from another. If a defendant is dissatisfied on those

grounds, he may appeal, by way of rehearing, to the Circuit Court. Thirdly, the mode of appeal under the procedure laid down in 1857

is by way of a written statement “setting forth the facts and the grounds of such determination” and not by way of rehearing. Where

the Court of First Instance hears the evidence and sees the witnesses, and the appeal is by way of a written statement of the facts

and grounds, it appears to me that such appeal must be limited to points of law and principle: see DPP v. Francis Cunningham,

(Supreme Court unreported 8th October, 2002). Thus, in Nangle cited above Finlay P. declined to interfere with an acquittal even

though he felt that the respondent’s evidence had “a clear air of implausibility” about it, because that did not constitute a point of

law.

34. In my view, the jurisdiction to entertain a case stated by way of appeal against acquittal requires to be strictly construed. In DPP

v. O’Shea [1982] IR 384, Henchy J. and Finlay P. (as he then was) embarked on analysis of remarkable depth and thoroughness of the

nature of an acquittal. The former said:-

“So far as I can ascertain, the authoritative Irish decisions in both the pre-Constitution and the post-Constitution eras

show that a plea of previous acquittal will always prevail (save in a statutorily allowed acquittal by case stated) to defeat

any appeal or other proceeding in which it is sought to make a person liable for any offence in respect of which he has

already been acquitted within jurisdiction by a court of competent jurisdiction”.

35. The reason for this, and its deep roots in fundamental principle, appear clearly from the cases analysed by the learned judges. In

the leading (and very remarkable) case The Queen v. the Justices of Antrim [1885] 2IR 603 O’Brien J., in a passage cited and

commented upon by Finlay P., said:-

“But the matter does not rest merely upon the technical nature of certiorari nor is the principle exhausted by the rule

nemo bis vexari debet, because that is common to civil cases. Another element comes in – the ground of constitutional

law, following the necessity of natural law. An acquittal by a tribunal of whatever degree is a judgment in rem, a

judgment of personal status”.

36. I agree with the passage cited and would therefore have difficulty in agreeing with the Director’s submission that acceding to an

application for a case stated, which will continue the suspension of the judgment of acquittal, and which can have the result of

reversing it (see s.6 of the Act of 1857) is not to be regarded as judicial Act, but as “an administrative or a ministerial one only”. But

that is not the issue at present. The status of near inviolability classically afforded to an acquittal emphasises the need to construe

the permitted scope of an attack on such acquittal strictly. I have no hesitation in finding that the scope of such challenge is strictly

limited to a question of law.

The first question.

37. It is now possible to address the first question raised by the Court:

“Whether a district justice who is asked to state a case pursuant to s.2 of the Summary Jurisdiction Act, 1857 must first

satisfy himself whether a point of law within the meaning of the Section has arisen?”

38. The respective parties advocate different answers to this question, the applicant contending that it should be answered in the

affirmative and the Director and the other State Authorities that it should be answered in the negative.

39. In contending for a negative answer, the Director puts the nub of his case as follows:-

“Section 4 does not require the Justice to refuse to state a case where in his opinion the application for it is frivolous

but it empowers him to do so. If the Justice fails to consider whether or not the application is frivolous he will

presumably state the case with the almost certain result for the appellant on an application bound to be frivolous not only

to have the determination of the Justice confirmed by the Superior Court but also to have an order for the costs of the

hearing imposed on him. It would appear therefore that the Justice asked to state a case is not obliged to satisfy himself

whether a point of law has or has not arisen or whether the applicant may or may not be entitled to think that the

Justice’s determination has been erroneous in point of law”. (Emphasis added)

40. This amounts to saying that, since a district judge need not refuse to state a case where he thinks the application is frivolous,

but is merely empowered to refuse to do so, he is not obliged to consider whether or not it is frivolous, but may do so if he wishes.

Since one of the reasons why it might be thought to be frivolous is that it does not raise any legal point at all, or that none arose in

the original determination, therefore the District Judge does not have to consider the question of whether any ground of

dissatisfaction “in point of law” is raised at all.

41. I cannot agree with this somewhat tortured logic. The issue of whether a decision of the District Court is “erroneous in point of

law” or whether a particular decision is one on which “any question or questions of law” arise, is quite different to the question of

whether an application for a case stated is frivolous. An application for a case stated might undoubtedly raise a point of law and yet

be frivolous. For example, if a case were adjourned pending a decision of the Superior Courts on some relevant issue which was

eventually decided against the contention of one party, it would be merely frivolous in an indistinguishable case to ask that the same

question of law be raised for the opinion of the High Court.

42. Section 2 of the 1857 Act, and its extension by s.51 of the Courts (Supplemental Provisions) Act, 1961, contain a number of

statutory pre-conditions for a valid application for a case stated. These include:-

(a) It must be made in a case “heard and determined” by the District Court,

(b) It must however arise in proceedings “other than proceedings relating to an indictable offence which was not dealt

with summarily by the Court”,

(c) There must have been a request for a case to be stated within fourteen days of the determination and

(d) It must appear that one of the parties is dissatisfied with the decision as being erroneous in point of law.

43. If, for example, it appears that a request for a case stated was not made within time this would clearly invalidate it. But no-one

could rationally describe this invalidity as being an aspect of “frivolity”, as the Director seeks to do here. On the contrary, the

question of whether the request is or is not frivolous will only arise if the statutory preconditions of a valid application for a case

stated are met. One of these is that it should be made within time: another is that it should relate to dissatisfaction with the decision

“in point of law”.

44. The Director also relies on the proposition that “the appellant is not required to state in his application why he thinks that the

determination is erroneous in point of law”. It seems more than reasonable that a person alleging that he is dissatisfied with a decision

is being erroneous in point of law should specify the grounds of this view. One must remember, however, that this a mid-Victorian

statute which, it may be, had to have regard to the position of unrepresented defendants and of magistrates who were not trained

lawyers. It may have been felt that such persons might be incapable of articulating a question of law with precision. This, however, is

not an entirely satisfactory explanation since s.14 of the 1857 Act provides that any person who availed of the provisions of s.2 “shall

be taken to have abandoned finally and conclusively, and to all intents and purposes”, his right to an appeal by way of rehearing at

Quarter Sessions. But the existence of this last mentioned provision itself demonstrates the clear division in the mind of the draftsman

between the appeal by way of rehearing at Quarter Sessions at which all issues would be open, and the more limited appeal to the

Superior Courts on a point of law.

45. In the case of an acquitted person whose acquittal is challenged by way of case stated, the decision to state the case has the

following effects: it “suspends” the determination of acquittal until the case stated is heard and determined; in practice it compels

him to become a participant in High Court proceedings (if he does not do so the decision in his favour will be unsupported); it exposes

him to the risks of the costs of these proceedings and it exposes him to the risk of conviction where he has been acquitted. Since

these consequences follow merely from the stating of the case, which is done without any reference to the party who has been

successful in the District Court, it seems extraordinary to suggest, as the Director does, that the District Judge need not concern

himself at all with the question of the validity of the application for the case stated, or with the question of whether the application is

frivolous.

46. Considering the provisions of s.83 of the Courts of Justice Act, 1924 (now replaced by s.52 of the Act of 1961) in Attorney

General v. McLoughlin [1931] 480, Sullivan P. pointed that they, too, were strictly limited:-

“The power conferred upon a district justice by the Section is limited in express terms, presumably because the legislature

recognised that without such limitation, an intolerable burden might be cast not only upon this Court but upon the parties

bearing the costs of the proceedings”.

47. Finally, it was submitted that there is no very rigid distinction between fact and law so that a grave error in the assessment of

fact would be regarded as “erroneous in point of law”. A number of cases were cited by both sides on this question. I do not regard

any of them as supporting the proposition contended for.

48. In Bracegirdle v. Oxley [1947] 1 AER 126, a divisional court in England heard a case stated from magistrates who had acquitted

on the basis that a charge of dangerous driving required actual, and not merely potential, danger to the public. In fact, this point has

been decided adversely to the defendant in two previous High Court decisions. In the judgment of Lord Goddard C.J. it is stated:-

“If justices persist in disregarding decisions given previously by this Court on a set of facts which cannot be distinguished

from the facts which are before the Justices in any particular case, they are guilty of a grave dereliction of duty, because

it is their duty to obey the rulings of this Court”.

49. The case, therefore, seems to have been one of deliberate refusal to apply binding decisions of the Superior Courts, which is

unquestionably an error of law.

50. Many cases establish the proposition that a decision which is come to wholly without evidence to support it may be quashed by

certiorari. A classic Irish decision in this area is State (Creedon) v. Criminal Injuries Compensations Tribunals [1988] IR 51. As

appears from that case, the test is whether the decision impugned was at variance with reason and commonsense. That such a

decision is invalid is undoubtedly a legal proposition, and a true one. But the question of whether in any particular case a decision to

acquit is of that nature is a factual one which does not give rise to any “question of law”. In this respect it is to be distinguished from

a decision to convict because, as was held in The State (Turley) v. O’Floinn [1968] IR 245, per O’Dálaigh J. “The question of whether

there is sufficient evidence in law to support a conviction is not a question of fact but a question of law”. This is so because the

ingredients of an offence are always known as ascertainable and the question of whether there is evidence to support the existence

of each of them is a wholly legal question. But if the question raised related not to the existence of evidence, but to its credibility or

to inferences of fact which could reliably be drawn from it, that would be a question of fact.

51. A useful method of approaching the question of whether a particular issue, in a criminal case, is a matter of fact or of law, is to

ask whether, if the case were being tried by judge and jury, the issue would be one for the judge or for the jury. In this case, it is

hard to deny that the question of whether the defendant had drunk alcohol after driving but before the urine test, and what the

effect of that alcohol was or might have been, would have been one for the jury. Moreover, since the evidence that he had drunk

alcohol emerged in the course of the prosecution case and was not “evidence given by or on behalf of the defendant” the

presumptions provided in s.20 of the Road Traffic Act, 1994 are not triggered. Accordingly the defendant had no onus to discharge.

Decision on the first question.

52. It therefore appears to me that the learned District Justice was indeed obliged, on being asked to state a case, first to satisfy

himself as to whether a point of law within the meaning of s.2 of the Act of 1857 arose as a ground of his decision in the case. It

appears that this issue was not addressed, though the contrary impression may have been created by the service on the respondent

of the notice requiring the case stated and the case itself in unsigned form, for the reasons discussed above.

The Constitutional Issue – mootness of other questions.

53. Since there is no evidence that the learned District Judge has considered whether any question of law arises in his decision to

acquit, it might be thought moot or premature to consider the other questions raised. It may be, indeed, that he has had no sufficient

opportunity to do so, since it seems that Mr. Fitzgerald’s proceedings were issued before any case was in fact stated in the

circumstances just mentioned. I have concluded, however, that since the service of the notice requiring a Case Stated in itself has a

statutory effect, that of “suspending” the determination of the District Court in favour of Mr. Fitzgerald, such service is sufficient to

confer upon him locus standi to raise the issue as to whether there are relevant provisions of the Act of 1857, which the notice

invokes, have been carried forward by Article 50 of the Constitution. For the reasons given by the learned Chief Justice I would

conclude that those provisions have indeed been carried forward. I do not believe it is appropriate to express any other opinion on

this case at this time, in the absence of a case actually stated by the learned District Judge, or a refusal by him to state a case. I

regard the three remaining questions which arose during the hearing as moot or premature.

54. No point of law appears in the draft case stated as part of the “grounds” of the decision. If the acquittal was based wholly on

factual matters – for example the failure of the prosecution to prove the elements of the offence beyond reasonable doubt – the

learned District Judge will no doubt decline to state a Case. If his decision is grounded on a point of law he will no doubt say so, and

state a case. I have found that it is a necessary precondition to a Case being validly stated that the District Judge must consider the

issue of whether a “question of law” arises at all and this does not seem to have occurred. Until a case is properly stated the

remaining points, other than the Constitutional point, in this litigation appear moot. In particular I would regard it as premature to

express any view at all on the issue of whether the questions which would arise out of the draft Case Stated are “questions of law”,

or are capable of being regarded as frivolous. It is for the District Judge to say whether his decision involved a question of law and if

so to “set forth the facts and grounds of [his] determination”. It is not possible to infer or imply what those grounds were from an ex

parte draft document.

Conclusion.

55. For the reasons set out above I would consider and determine the first issue raised by the Court and the Constitutional issue

raised in these proceedings, and those only.

56. For the reasons given by the learned Chief Justice I would allow the appeal and set aside the order of the learned trial Judge.