Callaghan v Governor of Mountjoy Prison & DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 29 June 2007
• Neutral Citation: [2007] IEHC 294
• Docket Number: Record Number: No. 820 SS/2007
• Court: High Court
• Date: 29 June 2007

[2007] IEHC 294

THE HIGH COURT

Record Number: No. 820 SS/2007

CALLAGHAN v GOVERNOR OF MOUNTJOY PRISON

Between:

Paul Callaghan

Applicant

And

The Governor of Mountjoy Prison

Respondent

And

The Learned Judge Presiding at Court 51

And

The Director of Public Prosecutions

Notice Parties

CONSTITUTION ART 40.4.2

BRENNAN v WINDLE & ORS 2003 3 IR 494

COURTS ACT 1991 S22(4)

ROCK v GOVERNOR ST PATRICK'S INSTITUTION UNREP SUPREME 22.3.1993 1993/5/1383

LAWLOR v HOGAN 1993 ILRM 606

CRIMINAL LAW

Trial

Notice of trial - Whether accused adequately informed of trial date - Applicant convicted and sentenced to prison in absentia - Whether duty on District Court to secure attendance of accused prior to imposing sentence of imprisonment - Whether bench warrant should have issued to secure attendance of applicant at trial - Whether applicant unlawfully detained - Brennan v Windle [2003] 3 IR 494 distinguished; Rock v Governor of St. Patrick's Institution (Unreported, Supreme Court, 22nd March, 1993) and Lawlor v Hogan [1993] ILRM 606 applied - Constitution of Ireland 1937, Article 40.4.2 - Release refused (2007/820SS - Peart J - 29/6/2007) [2007] IEHC 294

Callaghan v Governor of Mountjoy Prison

This was an application pursuant to Article 40.4.2 of the Constitution. The applicant contended that in the particular circumstances the District Judge should not have proceeded to sentence the applicant in his absence.

Held by Peart J. in refusing the application that the detention of the applicant was lawful. The District Judge did everything which was reasonably required of him in order to ensure that the applicant’s rights to due process, fair procedures and natural and constitutional justice were afforded to him.

Reporter: R.W.

Judgment of

Mr Justice Michael Peart

1 The background to the present application of the release of the applicant pursuant to Article 40.4.2 of the Constitution is that certain summonses arising out of alleged motoring offences, including that he drove a mechanically propelled vehicle without insurance, were served on the applicant "by way of letter box service", requiring the applicant to appear in the District Court to answer the allegations contained therein on the 2nd April 2007.

2 He failed to appear in the District Court on that date. According to an affidavit sworn by Garda McCann who was the prosecuting garda in respect of these alleged offences, and who was present in Court 51 on the 2nd April 2007 when these summonses were called, the District Judge made enquiry as to how the applicant had been served with the summonses and was informed that it had been by way of "letter-box service" at his home address, being that stated in the summonses themselves.

3 The judge in these circumstances adjourned the summonses to the 4th May 2007. In his affidavit Garda McCann states that"the judge remanded the case for this deponent to caution the defendant as to the new remand date which was fixed for the 4th of May 2007". He goes on to aver that on the 28th April 2007 at 21.00 hours he personally called to the applicant's address for the purposes of cautioning the applicant to attend Court and informing him of the adjourned date, the 4th May 2007. He says that when he called to the front door of the house he was met by "a male", and that he requested to speak to the applicant. However the applicant's mother came to the door to speak to him. He states then that "the applicant himself personally walked by the front door and stood behind the door. Same was indicated to me by Mrs Callaghan." He proceeds to aver that he then informed both the applicant and his mother of the new date for hearing of the summonses and that they would be heard at 10.30 on that date in Court 51. He also gave his calling card with these details written on the back thereof to the applicant's mother.

4 There is no reference to this visit to the applicant's house by Garda McCann in the grounding affidavit sworn by the applicant's solicitor, Declan Fahy. The contents of this affidavit presumably represent the totality of the relevant instructions taken from the applicant for the purpose of this application, and the Court must therefore act on the presumption that the applicant did not instruct his solicitor about this very relevant piece of information about Garda McCann calling to the house. I make that comment since at the hearing before me Garda McCann was cross-examined by Michael O'Higgins SC in relation to his replying affidavit, and in particular about exactly what happened when he visited the applicant's house on the 28th April 2007. The affidavit sworn by Mr Fahy states, inter alia, that he has been instructed and informed by the applicant that he had no notice of the proceedings leading to his conviction and sentence, and that he was never served with the summonses nor made aware by any person of his requirement to attend court.

5 During that cross-examination Garda McCann confirmed that he was in no doubt that it was the applicant who walked past the open hall door and that he remained behind the door while his conversation with the applicant's mother took place. He stated also that his mother had told her that it was the applicant behind the door. He did concede however that he had not spokendirectly with the applicant and this concession was made in answer to questioning by Mr O'Higgins about the note written at the foot of the copy summonses before the District court which states "Cautioned in person". Mr O'Higgins sought to rely on the inaccuracy of what the District Judge had been told in that regard, given that Garda McCann accepted that he had not cautioned the applicant in person, but through his mother only. However, Garda McCann stated that he was satisfied at the time of the caution that the applicant was present at the time and heard what was being said, albeit from behind the front door. Garda McCann believes that in these circumstances it was correct to inform the District Judge, as he did, on the 4th May 2007 that the applicant had been cautioned in person to appear.

6 Garda McCann deposed in his said affidavit that on the 4th May 2007, having told the District Judge that he had informed the applicant in person of the adjourned date, he applied for a bench warrant, but that the District Judge stated that every effort had been made to have the applicant before the Court, and that if the applicant did not wish to attend Court the matter would proceed in his absence. Accordingly evidence was given as to the offences in question, and the applicant was convicted. The judge then called for evidence of previous convictions, upon which evidence was given that there were nine previous convictions, including three convictions for driving without insurance in July 2002, September 2002 and in April 2005. A sentence of three months' imprisonment was then imposed on the summonses related to driving without insurance, and he was disqualified from driving for seven years. Other summonses appear to have been taken into account.

7 Mr O'Higgins relies on the...