O'Connor v DPP & Governer of Curragh Prison

JurisdictionIreland
JudgeLynch J.
Judgment Date03 December 1999
Neutral Citation[1999] IESC 7
CourtSupreme Court
Date03 December 1999
Docket NumberRecord No. 327/98

[1999] IESC 7

THE SUPREME COURT

Hamilton C.J.

Barrington, J.

Lynch, J.

Record No. 327/98
O'CONNOR v. DPP & GOVERNER OF CURRAGH PRISON
IN THE MATTER OF AN INQUIRY UNDER
ARTICLE 40 SECTION 4(2) OF THE CONSTITUTION

BETWEEN

STEPHEN O'CONNOR
APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE GOVERNOR OF CURRANGE PRISON
RESPONDENTS
Abstract:

Abstract to follow

1

JUDGEMENT delivered the 3rd day of December 1999 byLynch J. [NEM DISS]

Lynch J.
2

This is an Appeal from an Order of the High Court (Geoghegan J.) made on the 18th of November 1998 refusing an application by the Applicant/Appellant for an Order under Article 40 section 4(2) of the Constitution for his release from prison.

3

The matter has had a very long history and owing to the absence of information in the Appellant's papers as to the reason for the length of time that has elapsed this Court had to make its own enquiries through the Court Office to ascertain facts which explained the delay which has occurred.

4

The Applicant was served with a District Court Summons requiring him to attend in Court at Bray in the County of Wicklow on the 19th March 1993 to answer a charge that he did:

"on a unknown in the year 1989 indecently assault one (L.M.) a female child under the age of 15 years contrary to common law as provided for in section 10 Criminal Law(Rape) Act1981.'"

5

The Applicant included in his papers a copy of an Order of the High Court (Flood J.) made on the 29th October 1993 giving leave to the Applicant to apply by way of judicial review for an Order to prohibit trial on the foregoing charge and to stay the further prosecution thereof pending the determination of the said application. The Applicant duly served a motion seeking the foregoing relief and a statement of opposition was served and filed on behalf of the Director of Public Prosecutions on the 4th of July 1994. No information appears from the Appellant's papers as to what happened the foregoing judicial review proceedings at the substantive trial thereof. This Court obtained from the Supreme Court Office a copy of an Order of the Supreme Court (O'Flaherty, J., Barrington, J. and Keane, J.) made on the 24th January 1997 as follows:-

"The motion on the part of the Applicant pursuant to Notice of Appeal dated the 20th day of December 1994 by way of appeal from the judgment and Order of the High Court (Mr Justice Barr) given and made on the 17th day of November 1994 (whereby the application by the Applicant by way of judicial review for an Order of prohibition and other reliefs was refused) on the grounds and as set forth in the said Notice of Appeal coming on for hearing before this Court this day."

6

Whereupon and on reading the said Notice of Appeal the said Order of the High Court the documents referred to therein the judgment in the High Court, the submissions herein and on hearing Counsel for the Applicant and Counsel for the Respondents.

7

IT IS ORDERED AND ADJUDGED that the Appeal herein be dismissed and that the said judgment and Order of the High Court do stand affirmed accordingly."

8

It will be seen from that Order of the Supreme Court that the substantive proceedings by way of judicial review for an Order of Prohibition came before the High Court (Barr J.) on the 17th November refused but the Appellant herein appealed to the Supreme Court which affirmed the Order of the High Court on the 24th January 1997. The judgment of the Supreme Court was deliveredex tempore by O'Flaherty J. (the other members of the Court concurring) and concludes as follows;-

"I must that I regard this application both as sought in the first instance, as well as on appeal, as being totally merit less. I would dismiss the Appeal."

9

Thereafter the charge against the Appellant of indecent assault took its normal course. A Book of Evidence was served: the Appellant was returned for trial to Wicklow Circuit Court: and an indictment was laid to which the Appellant pleaded not guilty. Following a trial of a few days before a Circuit Court and jury at Wicklow Circuit Court the Appellant was found guilty of the said offence on the 1st of April 1998 and was ultimately sentenced to 3½ years imprisonment. In November 1998 the Appellant commenced these proceedings for an enquiry as to the lawfulness of otherwise of his detention pursuant to Article 40 Section 4 of the Constitution. The Applicant commenced such proceedings by way of an Notice dated the 3rd of November 1998 in which he set out as the grounds upon which he sought relief under Article 40 as follows:-

10

2 "1. That the indictment on which I stood trial and the subsequent conviction were bad in law. Thereby depriving me of my right under Article 38 of the Constitution.

11

2. That the sentence I received was bad in law. Thereby depriving me of my rights under Article 40 Section 4 of the Constitution of Ireland."

12

The Appellant supported his application for relief under Article 40 of the Constitution by an affidavit sworn also on the 3rd of November 1998. In paragraph 7 of that affidavit the Appellant says as follows;-

"I say that the said summons and subsequent indictment were bad in law and deprived me of rights under Article 38 of the Constitution for the follows reasons:"

13

“that Section 10 of the Criminal Law (Rape) Act1981was repealed by Section 21 and schedule of the Criminal Law (Rape) (Amendment) Act 1990”.

14

a A. that the Summons containing the offence provided for in Section 10 of the Criminal law (rape) Act 1998 was served two years after Section 10 of the Criminal law (Rape) Act1981was repealed.

15

b B. That the indictment was preferred against me seven years after the repeal of Section 10 of the Criminal law (Rape) Act1981.

16

c C. That I was convicted on the said indictment and remanded for a Victim impact Report under the provision of Section 5 (1) of the Criminal Justice Act1993.

17

d D. That on the 22nd of June 1998 I was sentenced to 3½ years imprisonment under Section 5(1) of the Criminal justice Act1993for an offence within the meaning of the Criminal Evidence Act1992as stated in Section 5(2)(A) of the Criminal Justice Act1993.

18

e E. I say that Section 2(1) of the Criminal Evidence Act1992related to offences within the meaning of the Criminal Law (Rape) (Amendment) Act 1990.

19

f F. I beg to refer to the Committal Warrant marked with the letter C. I have...

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