Brennan v The Governor of Castlerea Prison, Maguire v Governor Dochas Centre
 IESC 5
THE SUPREME COURT
O'Malley Iseult J.
Finlay Geoghegan J.
[Appeal No. S:AP:IE:2017:000121]
[Appeal No. S:AP:IE:2017:000117]
Failure to appear – Re-hearing – Committal warrant – Appellants seeking leave to appeal to the Supreme Court – Whether an appeal from a criminal conviction and/or a sentence in the District Court to the Circuit Court requires a full re-hearing in the Circuit Court in circumstances where the appellant fails to appear, or for other reason does not prosecute his appeal
The above entitled proceedings were part of a series of cases which were unrelated in themselves but in which the same legal issues arose for consideration. Apart from the two cases named in the title of this judgment, a further three cases were the subject of the judgment which is under appeal in these proceedings and those three cases involving, John O'Hagan and The Director of Public Prosecutions and finally John O'Hagan and The Director of Public Prosecutions are also the subject of appeals to this Court and await the decision of this Court in the appeal of these two cases which were heard together by this Court.
A single determination was made in respect of the applications for leave to appeal to this Court in all five cases and the issues in relation to which leave to appeal can be summarised as follows:
• Whether an appeal from a criminal conviction and/or a sentence in the District Court to the Circuit Court requires a full re-hearing in the Circuit Court in circumstances where the appellant fails to appear, or for other reason does not prosecute his appeal.
• Whether the committal warrant issued by the Circuit Court following the imposition of, or affirmation of, a prison sentence in an appeal from the District Court need necessarily record that the Circuit Court judge considered making a community service order prior to, or as an alternative to, the imposition of a prison sentence of twelve months or less, pursuant to s. 3 of the Criminal Justice (Community Service) (Amendment) Act 2011, and whether a committal warrant is invalidated because it omits a reference to the sentencing judge having considered the suitability of a community service order prior to imposition of a sentence.
In order to explain the context of the legal issues that arise in these cases, it would be useful to set out the backgrounds of the cases involving Ms. Maguire and Mr. Brennan. Ms. Maguire was convicted of stealing clothing, valued at €23.50 contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001. She was sentenced to three months imprisonment on the 11th September, 2015. On the same day, Ms. Maguire lodged a notice of appeal against the order of the District Court and she duly signed a recognisance in respect of the appeal in the sum of her own bond of €500. On the 16th October, 2015, Ms. Maguire was present in court and represented by counsel. Legal aid was assigned to Mr. Collier, solicitor. The case was adjourned to the 7th December, 2015 to allow full instructions to be taken and for consideration as to whether Ms. Maguire would appeal against severity of conviction and sentence, or against severity of sentence only. On the 7th December, 2015, Mr. Collier appeared in court but neither Ms. Maguire nor the prosecuting garda were present on that day. It was indicated to the court that the appeal was against severity of sentence only and the case was adjourned to the 11th January, 2016.
On the 11th January, 2016, counsel appeared for Ms. Maguire but she herself did not appear on that date. Counsel did not have instructions as to her whereabouts and asked for the matter to be put back to second calling. That was done. When the matter was reached at second calling Ms. Maguire was still not present in court and despite an application for a further adjournment, the Circuit Court judge refused to adjourn the matter further and affirmed the District Court order. It appears that no evidence was tendered to the court in respect of the particulars of the charge or Ms. Maguire's circumstances and previous convictions. It further appears that on the 11th January, 2016 Ms. Maguire was in fact an in-patient at Connolly Hospital, Blanchardstown. That was something which was not known to her solicitor, to the prosecuting garda or to the Circuit Court. Finally, it was noted in the judgment of the learned High Court judge, (Eager J.) in his judgment of the 30th June, 2016:
‘There is no evidence before the court as to whether (a) the applicant contacted Mr. Collier with a view to finding out when her appeal was listed, or (b) whether Mr. Collier wrote to the applicant informing her of the date to which the case had been adjourned.’
Mr. Collier in an affidavit sworn in these proceedings sought an inquiry under Article 40.4.2° of the Constitution in respect of the warrant entitled ‘Committal Warrant after appeal’ issued by the Dublin Circuit Court on the 11th January, 2016 on the basis that the warrant contained an error on its face, in that it stated there had been a hearing of the appeal in circumstances where there was no actual hearing on the appeal, as the order of the Circuit Court judge recited:
‘No appearance, strike out appeal, affirm conviction and order of the District Court and ordered that the accused be imprisoned for a period of three months.’
It might be said at this point it is unfortunate, given that Ms. Maguire was in hospital at the relevant time, that no application was made to re-instate her appeal as soon as that fact became known. Such an application might well have been open to favourable consideration by the Circuit Court although such an application would necessarily depend on the circumstances in any given case. (See.)
The following are the facts in relation to Mr. Brennan. He was convicted on the 16th May, 2016 at Galway District Court of a number of road traffic offences and was sentenced to a total of nine months imprisonment. He appealed his conviction having filed recognisances. On the day for the hearing of the appeal which seems to have been an appeal against sentence only, Mr. Brennan did not appear. The learned High Court judge (Donnelly J.) commented that:
‘On the day in question, it appears that the Circuit Court judge behaved impeccably, giving him plenty of time to appear on the day.’
She quoted from the grounding affidavit of Mr. Chris Hogan, solicitor of Poe Kiely Hogan Lanigan, solicitors for the applicant, in the affidavit grounding the application for an inquiry pursuant to the provisions of Article 40.4.2° of the Constitution where it is stated:
‘I say and believe and am so informed by counsel that when the case was called for the third time on the 22nd July, 2016, and it was apparent that the applicant had not appeared, the State solicitor informed the Court that the applicant had not appeared for his appeal the previous week and that the matter had been marked for entry ( sic) against the applicant and that the learned Circuit Court judge then struck out the appeal and affirmed the District Court orders.’
I presume that the reference to the matter having been marked ‘for entry’ is a mis-transcription of the word ‘peremptory’.
It appears that in the hearing before the High Court, four points were made in seeking to challenge the legality of the detention of Mr. Brennan, namely that:
‘It was contrary to fair procedures to make an order imposing a sentence without any hearing at all; secondly, the Court was under an obligation at law to consider whether or not to impose community service; thirdly, there should have been an express statement on the warrant that community service was rejected; and finally that there was an error on the face of the record in which it was stated that this had been imposed after an appeal, but there was no such appeal.’
In that case, Donnelly J. concluded that the warrant detaining Mr. Brennan was defective. She said:
‘In fairness I don't think it has even been suggested that it can be reasonably assumed by reference to the information contained in the warrant. What was being referred to was the information contained in the affidavit as to how the matter took place. So what we have on the face of this warrant is in fact the exact opposite. We have a statement that there was a hearing of the appeal and that the order was affirmed. So we don't have a statement by which that situation that there was a hearing or indeed a truncated hearing took place because of the absence of the appellant. In my view, that is a fatal omission. Jurisdiction has not been shown on this particular warrant in these particular circumstances.’
As a result of her conclusions, it was directed that Mr. Brennan be released from custody. There are in total some seven warrants in respect of Mr. Brennan and the critical part of the warrants is identical in each case and recites as follows:
‘And whereas on the hearing of an appeal by the said accused against the said order, the Circuit Court judge for the County of Galway on the 2nd July 2016 ordered as follows:
“Affirm conviction and order of the District Court and ordered...
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