22-APR-1991 17:41
CONSTITUTIONAL AFFAIRS BR
852 840 1976
P.16
Cawthorne
down any decision when the validity of his first appointment was questioned, old add that had Mr. already handed down his decision "other considerations may well
have applied". I will have to return to this point later when applying such principles as I fing to exist co the facts of the present case.
Mr. Keane, in submitting that the doctrine no. longer existed or that it did not apply to criminai. cases, referred to a number of cases which would or should have been decided differently had the doctrine in fact existeu. To a great exveńt, this suumission involves contenusng that the principle has been rejected sub silentio even though it was never argued. If that, indeed, is the submission then it cannot stand to the light of R. v. Hughes (1865] L.R. 1 P.C. 81 at 92, Privy Council decision binging upon ine.
•
as
ween,
Mr. Keane relied heavily on R. v. Cronin [1940] 1 AER 618 & 56 T.L.R. 457. In that case, the Municipal Corporation's Act 1882 permitted a Recorder, who was unable to attend, to appoint a barrister of Eive years standing to act as his deputy. Cronin was convicted at quarter sessions presided over by a person appointed to act deputy Recorder by writing under the hand of the Recorder, but unfortunately, that person was not, and never had a barrister The court of criminal appeal consisting Charles, Humphreys, and Tucker, JJ, held that the proceeings were void ad initio that the convicción shoula be set aside and annulled, and that the
the appellant should be ordered to appear at the next quarter sessions to answer the indictment against him. It is clear from both reporte that counsel for the Crown referred the court to the case of Margate Pier Co. v. Hannam (1819) 3 B & Ald. 266. was a case which certainly supported the de facto doctrine. However,
"it is the judgment of Charles, J. simply states
that error having been made, the perfectly clear that, court of quarter sessions was
so constituted as to be empowered to try anyone at all for anything, and the proceedinys were void ad initio. The rest of the judgment is taken up with a consideration of the proper course that should be taken in order to remedy the unfortunate mistake. In none of the reports does the court give any consideration to the de facto doctrine out Nr. Keane suys that if such a doctrine existed, then surely it would nave
sufficient to dispose of the matter in that case.
heen
never
it
1
+
484
ana
That
Mr. Keane goes on to cite three Privy Council decisions which he says ought to have gone the other way is this doctrine existed. These cases are Ganan v. Lafitte (1842 13 .R. 155; Butler v. R. (19391 A.C. 3rivery Commissioner v. Ranasingne (196) A.C. 142.
also the Hign Court of Australia geçision in Presley V Geravaty (1921) 29 C.L.R. 15.
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