Dunne v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 25 January 2008
• Neutral Citation: [2008] IEHC 16
• Court: High Court
• Date: 25 January 2008

[2008] IEHC 16

THE HIGH COURT

8SS/[2008]

Dunne v Governor of Cloverhill Prison

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE

CONSTITUTION OF IRELAND

BETWEEN

EAMONN DUNNE

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

CONSTITUTION ART 40.4.2

CRIMINAL PROCEDURE ACT 1967 S4B(1)

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL PROCEDURE ACT 1967 S4B(3)

CRIMINAL PROCEDURE ACT 1967 S4B(4)

CRIMINAL PROCEDURE ACT 1967 S4B(5)

CRIMINAL PROCEDURE ACT 1967 S4B(6)

CRIMINAL PROCEDURE ACT 1967 S6(1)

DCR O.24 r10(1)

DPP v KELLY UNREP SUPREME 14.4.2006 2006 IESC 20

BLACK'S LAW DICTIONARY 5ED 1979

SMITH v JUDGE O'DONNELL & DPP UNREP O'NEILL 27.4.2004 2004/47/10795

FIREARMS ACT 1964

EXPLOSIVE SUBSTANCES ACT 1883

CLARKE v MEMBER IN CHARGE OF TERENURE GARDA STATION 2001 4 IR 171 2002 2 ILRM 11 2001/3/751

CRIMINAL JUSTICE ACT 1984 S4

KIBERD v HAMILTON 1992 2 IR 257

RSC O.84 r21(1)

O'FLYNN v MID WESTERN HEALTH BOARD 1991 2 IR 223

DPP v KEMMY 1980 IR 160

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

C (P) v DPP UNREP HIGH COURT FINLAY GEOGHEGAN 11.3.2005 2005/8/1709 2005 IEHC 103

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381 1982 ILRM 590

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

RYAN v COMPENSATION TRIBUNAL 1997 1 ILRM 194

MATRIMONIAL CAUSES ACT 1950 S4(2) (UK)

BLYTH v BLYTH 1996 1 AER 524

PHIPSON ON EVIDENCE 15ED 2000 PARA 1.03

CRIMINAL LAW

Procedure

Extension of time for delivery of book of evidence - Nature of evidence grounding application - Whether extension of time for delivery of book of evidence properly grounded - Whether subsequent detention lawful - Blyth v Blyth [1966] AC 643 followed - Criminal Procedure Act 1967 (No 12), s 4B(1) - Criminal Justice Act 1999 (No 10), s 9 - Release of applicant ordered (2008/8SS - Edwards J - 25/1/2008) [2008] IEHC 16

Dunne v Governor of Cloverhill Prison

1 JUDGMENT of Mr Justice Edwards delivered on the 25th day of January, 2008

Introduction

2 On Monday 7th January, 2008 this court sat at 11.00am for the purposes of a vacation sitting. At the sitting of the court an application was made to it on behalf of the applicant, a prisoner then on remand at Cloverhill Prison, for an order pursuant to Article 40.4.2 of the Constitution of Ireland opening an enquiry into the lawfulness of his detention. The application was grounded upon the affidavit of John O'Donohoe, Solicitor, sworn on the 7th day of January, 2008 and was moved by Mr Alan Toale, of counsel. I was satisfied upon reading the said affidavit, and upon hearing the submissions urged upon me by Mr Toale, that the applicant had raised a serious issue, and that it was appropriate to open an enquiry into the lawfulness of his detention. Accordingly, I made an order pursuant to Article 40.4.2 opening an enquiry into the lawfulness of the applicant's detention at Cloverhill Prison and made the matter returnable for 2.00pm on the same day. When the court sat again at 2.00pm, the respondent was represented by Ms. Sunniva McDonagh, of counsel, instructed by the Chief State Solicitor. A certificate was presented to the court on behalf of the respondent certifying in writing the grounds of the detention of the applicant. Predictably, the respondent sought to rely upon a remand committal warrant. The said warrant, dated 3rd January, 2008 was issued under the signature of Judge William Hamill, a Judge of the District Court, and was addressed to the respondent commanding him to lodge the accused in Cloverhill Prison, and detain him there until a sitting of the District Court to be held at Cloverhill Courthouse, Clondalkin, Dublin 22 on the 17th January, 2008 at 10.30am. On the face of it, the said remand committal warrant appeared to be good. However, as the issue raised by the applicant, and to which I will refer in some detail later in this judgment, would, if the applicant was correct, vitiate the jurisdiction of the learned District Judge to remand the applicant at all, the production of the remand committal warrant could not be regarded as being dispositive of the matter. I therefore indicated to the parties that I would require detailed arguments from each side in support of their respective positions and that to facilitate them in researching and preparing their submissions I would adjourn the matter until Friday 11th January, 2008, the first day of Hilary Term. The matter came on before me on Friday 11th January, 2008 and I received outline written submissions from both parties together with oral submissions. I then retired to consider the arguments that had been presented to me and, having done so, found that I was not satisfied as to the legality of the applicant's detention. Accordingly, I ordered his release from detention and I indicated that I would give reasons for my decision in a written judgment on today's date. I now give those reasons.

The Legal Issue raised by the Applicant

3 The evidence that was before me established that the applicant was first arrested on the 2nd November, 2007 and was subsequently charged with conspiracy to commit a crime punishable by law, namely, the theft of cash in an amount of upwards of €900,000. The alleged co-conspirators were co-accused with the applicant. The charge of conspiracy to commit theft was preferred in accordance with a direction received from the Director of Public Prosecutions issued by him on the basis of a preliminary report on the case received from An Garda Siochana. However, he did not at that time have the full Garda file. The applicant, along with his co-accused, was held in custody and they were subsequently brought before the District Court in Kilmainham on the 5th November, 2007, at which time they were remanded in custody to Cloverhill Prison.

4 Thereafter the accused appeared before the District Court from time to time and on each such occasion he was further remanded. In that regard the evidence is that when the applicant was before the District Court on the 5th of November, 2007, and again on the 8th of November, 2007, the State sought further remands on the basis that directions in the matter were awaited from the Director of Public Prosecutions. When the matter was again before the District Court on the 22nd November, 2007 the court was told that directions from the office of the DPP were still awaited. On this particular date the presiding District Judge, of his own motion, refused jurisdiction and further remanded the accused to the sitting of the District Court in Cloverhill on the 20th December, 2007 pending the preparation and service of a Book of Evidence.

5 It should be noted that by virtue of s. 4B (1) of the Criminal Procedure Act, 1967 as amended by s. 9 of the Criminal Justice Act, 1999, the documents listed in that provision (which are collectively commonly referred to as the "Book of Evidence" by judges and lawyers, although the legislation does use that label) are required to be served within forty two days of the accused first appearing in the District Court. However, there is provision in s. 4B (3) of the said Act for the District Court to extend the period within which the Book of Evidence may be served if it is satisfied that (a) there is good reason for doing so, and (b) it would be in the interests of justice to do so. Accordingly, in the absence of any extension granted by the District Court the State were obliged to cause a Book of Evidence to be served on the applicant not later than the 17th December, 2007, that date being forty two days from the date on which the applicant first appeared in the District Court.

6 No Book of Evidence was served by the 17th December, 2007. When the matter came before the District Court on the 20th December, 2007 the prosecutor's representative informed the court that directions were still awaited from the DPP and sought an extension of time for delivery of the Book of Evidence. It should also be stated that even though the State were already out of time at that stage they were nevertheless entitled to seek an extension. They may do so because s. 4B (4) of the aforementioned legislation provides that an application may be made and an extension may be granted under subs. 3 before or after (my emphasis) the expiry of (a) the period of forty two days mentioned in subs. (1), or (b) any extension of the period granted under subs. 3.

7 The prosecution's application for an extension of time was opposed by counsel on behalf of the applicant who pointed out that no directions were necessary as the court had, on an earlier occasion, refused jurisdiction and in the circumstances his client was entitled to be served with a Book of Evidence forthwith.

8 By way of rejoinder the DPP's representative informed the court that the file in question was large and complex and that several issues arose including CCTV analysis, telephone analysis and the consideration of a large body of statements. No evidence was put before the court and the District Judge dealt with the application on the basis of the parties respective submissions. No objection was raised on behalf of the applicant on this occasion to the matter being dealt with on that basis. The District Judge acceded to the prosecution's application and extended the time for service of the Book of Evidence, but in doing so indicated that he was "marking time as running" as against the State. The applicant was remanded in custody to the sitting of the court in Cloverhill on the 3rd January, 2008. The evidence does not make clear to what date the District Court Judge extended the time for service of the Book of Evidence but I infer that it was also to the 3rd of January, 2008.

9 In any event on the 3rd January, 2008 the case came up again in the District Court list in Cloverhill....