Dunne v Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 21 May 2009
• Neutral Citation: [2009] IESC 43
• Court: Supreme Court
• Date: 21 May 2009

[2009] IESC 43

THE SUPREME COURT

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

[Appeal No: 50/2008]

Dunne v Governor of Cloverhill Prison

Between/

Eamonn Dunne

Applicant/Respondent

and

The Governor of Cloverhill Prison

Respondent/Appellant

CONSTITUTION ART 40.4.2

CRIMINAL PROCEDURE ACT 1967 S4B

CRIMINAL JUSTICE ACT 1999 S9

DUNNE v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 18.2.2009 2009 IESC 11

PRACTICE AND PROCEDURE

Appeal

Moot - No live issue - Release of applicant ordered from custody after inquiry - Applicant re-arrested and charged with new charge - High Court subsequently ordered applicant's release on the new charge - Appeal from decision of High Court ordering release of applicant - Applicant no longer in custody on foot of new charge - Charge inoperative - No live issue remaining - Whether issue of new charge justiciable - Whether matter moot - Dunne v Governor of Cloverhill Prison [2009] IESC 11, (Unrep, SC, 18/2/2009) considered - Criminal Procedure Act 1967 (No 12), s 4B - Criminal Justice Act 1999 (No 10), s 9 - Appeal dismissed (50/2008 -SC - 21/5/2009) [2009] IESC 43

Dunne v Governor of Cloverhill Prison

Facts: the applicant had been charged with an offence of conspiracy to commit a theft and remanded in custody therefor. His application for habeus corpus succeeded before the High Court. The respondent’s appeal of that decision was ultimately successful before the Supreme Court. In the meantime, he had been re-arrested immediately following his release by the High Court on a new charge which was in identical terms as the original. He was on bail pending trial on the original charge. His application for habeus corpus in relation to his detention under the new arrest succeeded before the High Court. The respondent appealed that subsequent decision to the Supreme Court.

Held by the Supreme Court (Denham J; and Hardiman, Geoghegan, Fennelly and Kearns JJ concurring) in dismissing the appeal on the grounds that it was a moot that the issue of the new charge was not justiciable and scarce judicial resources should not be used to advance an academic analysis.

Reporter: P.C.

1 Judgment delivered the 21st day of May, 2009 by Denham J.

2 Judgment delivered by Denham J [nem diss]

3 1. The circumstances of this appeal raise the issue as to whether or not the matter is moot.

4 2. On the 2 ^nd November, 2007, Eamonn Dunne, "the applicant", was charged with conspiracy to commit a theft contrary to common law. I will refer to this as "the original charge".

5 3. On the 3 ^rd January, 2008, the applicant was before Cloverhill District Court, an adjourned date, on the original charge, charged with a co-accused of conspiring to commit the crime of theft of cash of an amount of in excess of €900,000. A further extension of time was sought by the prosecution for the service of the Book of Evidence. After hearing submissions the District Judge remanded the applicant in custody for two weeks.

6 4. On the 7 ^th January, 2008, the applicant sought an inquiry pursuant to Article 40.4.2° of the Constitution.

7 5. On the 11 ^th January, 2008, the High Court (Edwards J.) ordered the release of the applicant.

8 6. On the 25 ^th January, 2008 Edwards J. gave his reasons for determining that the applicant was in unlawful detention. These related to s.4B of the Criminal Procedure Act, 1967, as inserted by s.9 of the Criminal Justice Act, 1999, as to the extending of time by the District Court for the service of the Book of Evidence.

9 7. The Governor of Cloverhill Prison appealed that decision.

10 8. On the 18 ^th February, 2009, in Dunne v. The...