Karl O'Brien v DPP and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 22 October 2014 |
| Neutral Citation | [2014] IEHC 461 |
| Court | High Court |
| Date | 22 October 2014 |
[2014] IEHC 461
THE HIGH COURT
BETWEEN
AND
CONSTITUTION ART 40.4.2
ROCHE (AKA DUMBRELL) v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 31.7.2014 2014 IESC 53
RYAN v GOVERNOR OF MIDLANDS PRISON UNREP SUPREME 22.8.2014 2014 IESC 54
JOYCE v GOVERNOR OF THE DOCHAS CENTRE 2012 2 IR 666 2013 2 ILRM 366 2012/19/5564 2012 IEHC 326
X (F) v CLINICAL DIRECTOR OF THE CENTRAL MENTAL HOSPITAL & ANOR 2014 2 ILRM 378 2014 IESC 1
CIRPACI v GOVERNOR OF MOUNTJOY PRISON UNREP HOGAN 25.2.2013 2014 IEHC 76
CONSTITUTION ART 40
MCCABE v AG & ANOR UNREP HOGAN 29.9.2014 2014 IEHC 435
Attempted Robbery – Practice and Procedure – Detention – Legality – Criminal Act - Appeal
Facts: This application for an inquiry into the legality of the applicant”s detention pursuant to Article 40.4.2 arose from the circumstances in which the District Court imposed a six months” sentence upon the applicant, Mr. O”Brien. The sentence itself followed a plea of guilty to the attempted robbery of a schoolboy. The fundamental contention of the applicant was that the sentence was imposed in a manner which was not consistent with fair procedures. At the sentence hearing, which lasted approximately five to six minutes, the prosecuting Garda, Garda Dowling, gave evidence of the circumstances of the attempted robbery which occurred when the applicant (who was apparently under the influence of alcohol at the time of the offence) confronted a 17 year-old school student on his way back from school and endeavoured to rob him of his belongings. Garda Dowling outlined the applicant”s past history of offending which included 77 previous convictions, including a litany of offences committed over the past few years. Counsel for the applicant asked for the sentence to be put back and he endeavoured to summarise the type of evidence which he would like to call in aid of that mitigation argument. He indicated that he would adduce evidence that the applicant had engaged in a full time training programme run by FÁS; that he had also completed a 6 week course run by the Health Service Executive; that he had received assistance from Alcoholics Anonymous and that he was in stable relationship with twin daughters.
Held by Justice Hogan in light of the digital audio recording of the hearing that, he could not accept the submission that the District Judge had unfairly impeded defence counsel from making appropriate submissions. He reasoned that the substance of the applicant”s case was adequately conveyed by counsel. Acknowledging the exigencies of a busy district court and accepting that the sentence hearing was not absolutely perfect or ideal, it was determined that allowances had to be made. Relying on the judgement of Roche v. Governor of Mountjoy Prison [2014] IESC 53 and Ryan v. Governor of Limerick Prison [2014] IEHC 54 amongst others, it was acknowledged that regardless of the scope of the Article 40.4.2, an order providing for the release of an applicant who had been convicted of an offence could only be made where: (a) either the warrant was seriously defective or; (b) the order displayed a lack of jurisdiction on its face or; (c) the convicting court lacked jurisdiction to impose a conviction in the first place or: (d)where there had been a material breach of the applicant”s constitutional rights. Thus, in applying these tests, Justice Hogan was of the opinion that as no fundamental breach of the applicants constitutional rights had been identified and on account of the fact that the order of conviction was sound, that he could not bring himself within the proper scope of the Article 40.4.2 jurisdiction. The court concluded that the...
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Croake v District Judge Michael Coughlan
...that this applicant provide an independent surety? As it happens, my own decision in O'Brien v. Director of Public Prosecutions [2014] IEHC 461 touched on that very question. In O'Brien the applicant had sought release from a six month sentence by way of an Article 40 application following ......