O'Keeffe v Governor of St. Patrick's Institution

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date13 December 2005
Neutral Citation[2005] IEHC 430
CourtHigh Court
Docket Number[2005 No. 1799 SS]
Date13 December 2005
O'KEEFFE v GOVERNOR OF ST PATRICK'S INSTITUTION
IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40 OF THE CONSTITUTION OF
IRELAND 1937

Between:

Kevin O'Keeffe
Applicant

And

The Governor of Saint Patrick's Institution
Respondent

[2005] IEHC 430

Record Number: No. 1799 SS/2005

THE HIGH COURT

CRIMINAL LAW

District court

Jurisdiction - Fair procedures - Habeas corpus - Unlawful detention - Validity - Estoppel - Whether absence of fair procedures - Whether judge had jurisdiction to impose sentence - Whether conviction and sentencing severable events - District Court Rules 1948 (SI 431/1948), O 59 - District Court (Criminal Justice) Rules 2001 (SI 194/2001), O 24, r 2 - Courts of Justice Act 1924 (No 10), s 77(B) - Criminal Procedure Act 1967 (No 12), s 13(2) - Criminal Justice Act 1951 (No 2), s 2 - Criminal Justice Act 1999 (No 10), s 10(3) - Constitution of Ireland 1937, Article 40 - Relief refused (2005/1799SS - Peart J - 13/12/2005) [2005] IEHC 430

O'KEEFFE v GOVERNOR OF ST PATRICK'S INSTITUTION

Facts: The applicant submitted that his detention was unlawful. The applicant pleaded guilty and having considered matters District Judge Brophy directed that the Probation and Welfare Service prepare a report. When the case next appeared at the District Court, District Judge Fitzpatrick was sitting. The applicant submitted that it was appropriate that the matter be put back to a date on which District Judge Brophy could dispose of the matter. However, District Judge Fitzpatrick refused and having heard facts in relation to the offences and a plea in mitigation, which included the Probation report, the judge imposed a term of imprisonment.

Held by Peart J. in refusing the relief sought that the District Court had jurisdiction to dispose of the matter once the report was available. Once fair procedures were observed by way of the facts being outlined to the sitting judge and the appropriate and necessary opportunity to be heard in mitigation being afforded to the applicant and his legal team, there was no obstacle to the matter being disposed of by District Judge Fitzpatrick. The detention of the applicant was made within jurisdiction and was lawful.

Reporter: R.W.

CONSTITUTION ART 40

BURNS v GOVERNOR OF ST PATRICK'S INSTITUTION DUBLIN UNREP HIGH COURT KINLEN 3.2.1995 1998/12/4072

MCDONAGH, STATE v FRAWLEY 1978 IR 131

CRIMINAL JUSTICE ACT 1951 S2

DE BURCA, STATE v O HUADHAIGH 1976 IR 85

FEENEY v DISTRICT JUSTICE CLIFFORD 1989 IR 668

ROYLE, STATE v KELLY 1974 IR 259

WOODS, IN RE 1970 IR 154

O'CONNOR IRISH JUSTICE OF THE PEACE 1915 206

COURTS ACT 1971 S13

R v KIELY 1989 11 CR APP R (S) 273

CRIMINAL JUSTICE ACT 1951 S1

CRIMINAL JUSTICE ACT 1951 S3

COURTS OF JUSTICE ACT 1924 S77(B)

HASTINGS, STATE v REDDIN 1953 IR 134

DCR 1948 O.59

CRIMINAL PROCEDURE ACT 1967 S13(2)

CRIMINAL JUSTICE ACT 1999 S10(3)

DISTRICT COURT (CRIMINAL JUSTICE ) RULES 2001 SI 194/2001

DCR O.24(2)

CRIMINAL JUSTICE ACT 1951 S2(2)(a)

1

Mr Justice Michael Peart delivered on the 13th day of December 2005:

2

The applicant submits that his detention is unlawful. The circumstances alleged to constitute this illegality are that having been charged with eight offences as set forth on certain Balbriggan Garda Charge Sheets as exhibited herein, he appeared before Judge Brophy in District Court 44 on the 5th August 2005 when evidence of arrest, charge and caution were given, and he was remanded in custody to appear again in Court 44 on the 12th August 2005. Legal aid was granted and the Director of Public Prosecution gave an indication to the Court that he was directing summary disposal of the charges. On that date also, the applicant was admitted to bail in his own bond of €100 and was remanded to Balbriggan District Court on the 29th September 2005.

3

He appeared on that date before Judge Brophy, with his solicitor and counsel, and elected to be tried summarily in the District Court, and pleaded guilty to all charges.

4

It is averred in the affidavit of his solicitor, John Quinn, and this is uncontested before me, that on that date, the 29th September 2005, following the plea of guilty, Judge Brophy was given an outline of the facts of the case, and a plea in mitigation of sentence was given on behalf of the applicant by his counsel. It is averred also that having heard these matters, the District Judge "having duly considered matters felt it appropriate to direct that the Probation and Welfare Service prepare a report", and that the Judge remanded the applicant on continuing bail to appear again in Balbriggan District Court on the Thursday the 1st December 2005.

5

On that date, the 1st December 2005 he again appeared at Balbriggan District Court to find that a different judge was sitting, namely Judge Fitzpatrick. The Probation report which Judge Brophy had directed was available. Counsel on behalf of the applicant submitted to Judge Fitzpatrick that as pleas of guilty had been made to Judge Brophy and that he had heard the facts and called for a Probation Report to be prepared, that it was appropriate that the matter be put back to a date on which Judge Brophy could finally dispose of the matter. It is averred also that upon this application being made, Judge Fitzpatrick stated that Judge Brophy would not be back to that Court in the foreseeable future and that he would deal with the matter himself. This course of action was not something to which the applicant or his legal team consented. In fact they objected to that course of action. It is averred that the prosecution made no submissions in that regard.

6

Mr Quinn then avers that that despite the objection raised to Judge Fitzpatrick disposing of the matter, the judge proceeded to hear facts in relation to the offences, a plea in mitigation was made by the applicant's counsel, including by reference to the Probation report. It is averred that this report recommended that should the applicant remain at liberty that he should be returned to court after a short period so that he might be in a position to demonstrate that he has cooperated with, and acted upon the advice of the Probation and Welfare Service on a number of issues, and the officer indicated in that report that she would be happy to provide any further report on any other date set by the court.

7

In the event the District Judge imposed consecutive sentences amounting to a total of twenty two months, in circumstances where, it is averred, the District Judge could not have imposed sentences totalling more than twenty four months. The sentence can therefore be viewed as being at the top end of the range of sentencing available to the Court. It is averred that Judge Fitzpatrick himself did not at any stage consider jurisdiction, nor place the applicant on his election before sentencing, and that therefore he acted without jurisdiction.

8

Feichín McDonagh SC on the applicant's behalf has submitted that in circumstances where one judge has received the pleas of guilty, decided upon jurisdiction, and entered upon the sentencing/punishment process by hearing the facts of the case and a plea in mitigation, and has furthermore directed that a Probation report be obtained, it is a necessary fair procedure that the same judge consider the report and decide on the appropriate sanction. This is the argument based purely on fair procedures.

9

Mr McDonagh submits that as a matter of fair procedures alone the applicant is entitled to expect that he will be punished by the judge before whom he entered his pleas of guilty and who commenced the punishment process by hearing a plea in mitigation and thereafter requesting a Probation report. He submits that in the present case justice cannot be seen to be done and that a patent unfairness has occurred, the more so where objection was taken to the course taken. Mr McDonagh has referred the Court to a judgment of Kinlen J. in Burns v. The Governor of St. Patrick's Institution Dublin, unreported, 3rd February 1995. Appearing from that judgment, the facts were that the applicant pleaded guilty to certain offences before Judge Hussey who remanded him to another date on bail informing him that reports were to be obtained, and informed him also that if the reports were favourable she proposed to impose some community service by way of punishment, and if not she would impose a sentence of two months imprisonment. On the adjourned date the applicant appeared before Judge Windle who, not being impressed by the answers the applicant gave to certain questions designed to elicit from the applicant the extent of his knowledge of what community service entailed, proceeded to remand the applicant in custody so that he during that time learn what was the meaning of community service. In that regard, Kinlen J. stated the following:

"...It seems to me that this order was fatally flawed for a number of reasons. Firstly I think it a reprehensible practice for one judge to try the case and indicate the punishment and for another judge, who has not heard the case, to proceed to deal with the case by remanding the accused in custody to learn the meaning of words.........I am quite satisfied that Judge Windle should have adjourned the matter to Judge Hussey."

10

There are clearly some important factual distinctions between the facts of that case and the present one. Firstly, Judge Brophy gave no indication of what he proposed to do in the light of any report which he might receive. Secondly Judge Fitzpatrick certainly cannot be accused of acting towards the present applicant in the same unfair or "reprehensible" manner as was found to be the case in respect of Judge Windle. As I read the judgment of Kinlen J. what was reprehensible was the remanding in custody to learn about community service, as opposed to entering upon a case commenced...

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2 cases
  • D v The Director of Public Prosecutions
    • Ireland
    • Court of Appeal (Ireland)
    • 16 November 2023
    ...a new fact, gave rise to what the respondent terms a “ flip-fop effect” such that while O'Keefe v. Governor of St. Patrick's Institution [2006] I.R. 228 makes clear that a decision to accept jurisdiction to try a hybrid offence summarily is not ascribed to any Judge of the District Court bu......
  • Corcoran v Director of Public Prosecutons, Doherty v Director of Public Prosecutons, Rooney v Director of Public Prosecutons
    • Ireland
    • High Court
    • 8 July 2022
    ...the offence is minor, any District Court judge is entitled to proceed with the case ( O'Keeffe v. Governor of St. Patrick's Institution [2006] 1 I.R. 228) without revisiting the question of jurisdiction. It is common case, however, that the fact that summary jurisdiction was accepted by one......

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