Taking a ‘Preliminary Point’ upon an Appeal
| DOI | 10.1177/002201834901300106 |
| Published date | 01 January 1949 |
| Date | 01 January 1949 |
| Subject Matter | Article |
Taking a'Preliminary Point'
upon an Appeal
ANappeal to
Quarter
Sessions in England (and to
the
Circuit Court in Eire) is an appeal by way of a re-
hearing on
the
merits, so
that
a decision upon a
point
preliminary to
the
jurisdiction is
not
an adjudication of
the
appeal,
but,
on
the
contrary, adeclining of jurisdiction.
But
it
is, of course, permissible on appeal to raise a point
of law as to form,
and
in such a case
it
is often difficult to
determine whether aconsequent decision on this point is
one upon
the
merits (and
thus
incapable of review), or
whether
it
is
tantamount
to a refusal to hear
the
case
at
all
(and is
thus
subject to mandamus
and
certiorari). Such a
problem recently arose in
the
High Court in Eire in The
State (A.-G.) v. Judge Connolly (1948
l.R.
176), where one
H. took
the
objection in law before
any
evidence was led,
upon his appeal to
the
Circuit Court from his conviction of
larceny in
the
District Court,
that
the
order of conviction
made by
the
District Justice in
the
terms "C. 1 C.M.H.L."
was
bad
ex facie.
The
solicitor for
the
prosecution, stating
that
the
Justice's order
meant
"Convict. One Calendar
Month's
Hard
Labour", requested
the
Judge
to hear
the
evidence and, if satisfied
that
the
accused was guilty of
the
acts alleged, to affirm
the
conviction
and
to alter
the
order
to make
it
appear plainer. The learned
Judge
reversed
the
order of conviction, however,
and
dismissed
the
charge,
but,
upon an application being made to
the
High Court for
writs of mandamus
and
certiorari,
it
was held
that
an
appeal from a
justice's
decision
must
be
by
way of a re-
hearing
and
that
there is no jurisdiction to quash a con-
viction without such re-hearing, which step
can
be
taken
in
the
High Court only.
For
the
prosecutor in The State (A.-G.) v. Judge
Connolly (supra), it was conceded
that
the
order of conviction
was irregular, although
it
was urged
that
it
was
not
a
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