Dutton v District Justice O'Donnell

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 06 February 1989
• Neutral Citation: 1989 WJSC-HC 228
• Docket Number: 172 JR/1988
• Court: High Court
• Date: 06 February 1989

1989 WJSC-HC 228

THE HIGH COURT

172 JR/1988

DUTTON v. O'DONNELL

STEPHEN DUTTON

APPLICANT

AND

AIDAN O'DONNELL & OTHERS

RESPONDENTS

Citations:

DCR 1948 r198

BRENNAN, STATE V CONNELLAN UNREP HAMILTON 17.06.86 1987/1/110

CUNNINGHAM V GOV OF MOUNTJOY 1987 ILRM 33

MCCORMACK, STATE V GOV OF MOUNTJOY UNREP BARRON 06.05.87 1987/2/6 53

CRIMINAL JUSTICE ACT 1960 S2

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Conviction - Warrant - Issue - Delay - Injustice - ~See~ Criminal Law, arrest - (1988/172 JR - Barron J. - 6/2/89) [1989] IR 218

|Dutton v. O'Donnell|

NATURAL JUSTICE

Fair procedures

Warrant - Issue - Delay - Injustice - Applicant sentence to nine monthsdetention - Appeal to Circuit Court abandoned - Warrant in execution ofsentence not issued by Circuit Court - Warrant for arrest of applicantissued by District Court four and a half months later - Applicantserving other sentences in the interval - ~See~ Criminal Law, arrest -(1988/172 JR - Barron J. - 6/2/89) [1989] IR 218

|Dutton v. O'Donnell]

CRIMINAL LAW

Arrest

Warrant - Issue - Delay - Four Months - Excessive period - Youthful offender sentenced to nine months detention - Appeal to Circuit Court abandoned - Warrant not issued by Circuit Court - Applicant serving other sentences of detention in the interval - Warrant for arrest issued by District Court - Subsequent arrest lawful - Arrest deemed to have taken place on abandonment of appeal - On 22/6/87 the applicant, a youthful offender, was convicted in the District Court of an offence and sentenced to nine months detention - He appealed to the Circuit Court against his conviction - He was subsequently sentenced to six months detention in respect of an offence committed by him on 13/9 and to four months detention in respect of an offence committed on 8/9 - On 18/1/88 the applicant withdrew his said appeal but the Circuit Court did not issue a warrant in execution of the first conviction - The periods of detention specified in the subsequent convictions ended on 26/4/88 when the applicant was released from detention - A warrant for the arrest of the applicant in execution of the first conviction was issued by the District Court on 14/4/88 and the applicant was arrested pursuant to that warrant on 30/5/88 being four and a half months after the abandonment of his said appeal - The applicant applied to the High Court for judicial review and claimed that his said arrest was unlawful - The applicant contended that the delay in issuing the said warrant of arrest constituted a breach of r. 198 of the rules of 1948 and constituted a failure to vindicate the applicant's constitutional right to fair procedures - Held that the Circuit Court had not issued the required warrant on 18/1/88 when it affirmed the first conviction, and that it would appear that the District Court had not been informed of that fact and that, therefore, the latter court had failed to "forthwith issue the necessary warrant or warrants and take all further steps requisite for the execution of the conviction", as required by r. 198 of the rules of 1948 - Held that the constitutional guarantee of fair procedures required the prosecuting authority to inform the court of trial promptly of the facts that the conviction had been affirmed on appeal and that the appellate court had not issued its warrant in execution of the conviction - Held that the delay in issuing the said warrant was inordinate and had not been explained: ~Cunningham v. Governor of Mountjoy Prison~ [1987] ILRM 33 and ~The State (McCormack) v. Governor of Mountjoy Prison~ (Barron J. - 6/5/87) considered - Held that the Circuit Court judge should have been informed on 18/1/88 that the applicant was then in custody and serving sentences of detention and that, on receipt of that information, the said judge should have issued the necessary warrant authorising the applicant's detention pursuant to the first conviction - Held that the arrest of the applicant had been lawful but that, in the said circumstances, justice required that the said arrest must be deemed to have been effected on I8/1/88 and that the applicant must be deemed to have been in custody pursuant to that arrest from that date - Rules of the District Court, l948. r. l98 - (l988/172 JR - Barron J. - 6/2/89) [1989] IR 214

|Dutton v. O'Donnell|

1 Judgment of Mr. Justice Barrondelivered the 6th day of February 1989.

2 The Applicant was convicted on the 22nd June 1987 at the Metropolitan Children's Court in Dublin of four offences committed on the 10th April 1987. He was sentenced to detention in St. Patrick's Institution for a period of nine months in respect of three of the convictions and a period of six months in respect of the fourth all such convictions to run concurrently. The Applicant appealed each of thoseconvictions. On the 11th December 1987 the Applicant was convicted of an offence committed on the 13th September 1987 and sentenced to six months detention in St. Patrick's Institution. The detention on foot of that conviction commenced on the date upon which it was imposed. On the 22nd December 1987 in respect of a further offence committed on the 8th September 1987 the Applicant was sentenced to be detained in St. Patrick's Institution for a period of four months. Prior to his conviction on the 11th of December 1987 the Applicant had been on bail pending his appeal of the four convictions dated the 22nd June 1987. The appeals came on for hearing on the 18th January 1988. On that date the Applicant withdrew his appeals. On the 25th January 1988 his then Solicitor wrote to the Warrants Officer, Ballyfermot Garda Station asfollows:

"Re: Stephen Dutton 57 Cherry Orchard Avenue

Bellyfermot Dublin 10.

Dear Sir,

We have been requested by Mr. Stephen Dutton to ask you to check your records and see do you have any outstanding warrants in respect of Stephen Dutton in Ballyfermot Garda Station. If there are any outstanding warrants in respect of Mr. Dutton please advise us accordingly and we will arrange in due course to have the outstanding matters dealt with. We look forward to hearing from you.

Yours faithfully."

3 The warrant officer stationed at Ballyfermot Garda Station replied to the Applicant's Solicitors to the effect that there were no such warrants at that Garda Station. It is significantthat the Applicant's Solicitors failed to refer to the fact that there were four outstanding convictions of the 22nd June 1987 and that warrants in respect thereof would be issuing from the DistrictCourt.

4 On the 11th March 1988 the Applicant was released from St. Patrick's Institution on temporary release. The term of his detention on foot of the convictions dated the 11th December and 22nd December 1987 respectively ended on the 26th of April 1988. Following the withdrawal of his appeals the issue of the appropriate warrants was not directed by the Circuit Court Judge. Accordingly the matter had to go...