Cahill v Judge Reilly

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1994
• Docket Number: [1991 No. 281 J.R.]
• Date: 01 January 1994

High Court

[1991 No. 281 J.R.]

Cahill v. Judge Reilly

John Cahill

Applicant

and

District Court Judge Michael Reilly and The Director of Public Prosecutions, Respondent

Case mentioned in this report:—

The State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110 I.L.T.R. 9; (1976) 112 I.L.T.R. 27.

Criminal law - Legal aid - Custodial sentence - Immediate prospect - Conviction or plea of guilty - District Court Judge - Right to legal aid - Duty to advise - Accused - Entitlement - Ignorance - Certiorari - No evidence of ignorance shown - Criminal Justice (Legal Aid) Act, 1962 (No. 12), s. 2.

Constitution - Courts - Legal aid - Custodial sentence - Accused - Legal aid entitlement - Duty to advise accused - When operable - Criminal Justice (Legal Aid) Act, 1962 (No. 12), s. 2 - Constitution of Ireland, 1937, Articles 34, 38 and 40.

Judicial review.

The facts are set out in the judgment of Denham J., post.

On the 19th December, 1991, the applicant obtained leave in the High Court to apply for an order of certiorari by way of judicial review quashing the conviction and sentence imposed on him by the first respondent. Pursuant to originating notice of motion and a statement of grounds of opposition filed, the matter was heard by the High Court (Denham J.) on the 23rd March, 1992.

Section 2 of the Criminal Justice (Legal Aid) Act, 1962, provides that if it appears to the District Court that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid and that, by reason of the gravity of the charge or of exceptional circumstances, it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence, the court shall "on application being made to it in that behalf" grant him a certificate enabling him to obtain free legal aid and to have a solicitor assigned to him for that purpose.

A District Court Judge is obliged to inform an accused of his right to legal aid as soon as it becomes apparent, whether from the gravity of the circumstances of the offence or a plea of guilty or conviction or other evidence, that a custodial sentence is imminent or likely; and such a conviction and sentence may be quashed on review by the High Court for being in violation of the accused's constitutional rights notwithstanding that there is no evidence before the High Court that the accused was unaware of his legal rights by reason of illiteracy, lack of education or otherwise.

So held by Denham J.

The State (Healy) v. Donoghue [1976] I.R. 325 applied.

Cur. adv. vult.

Denham J.

This is an application by way of judicial review for an order of certiorari in respect of an order of the first respondent made on the 13th September, 1991, at Portlaoise District Court in proceedings entitled Garda James Holden, complainant and John Cahill, accused.

The grounds for the said application are:—

• 1. The first respondent failed to act in accordance with the principles of basic fairness of procedures and of natural and constitutional justice. The applicant was not asked whether he was aware of the charge against him and whether he was pleading guilty or not guilty and was not in a position to defend himself against the charges.

• 2. The first respondent failed to act in accordance with...