Kli v Governor of Cloverhill Prison & Anther
| Jurisdiction | Ireland |
| Judge | MR JUSTICE MICHEAL PEART |
| Judgment Date | 16 October 2010 |
| Neutral Citation | [2010] IEHC 399 |
| Docket Number | 1817 |
| Court | High Court |
| Date | 16 October 2010 |
[2010] IEHC 399
THE HIGH COURT
BETWEEN:
AND
KILLEEN v DPP & ORS 1997 3 IR 218 1998 1 ILRM 1 1998/23/8845
DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907
DPP (MCTIERNAN) v BRADLEY 2000 1 IR 420 1999/6/1506
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2(1)(B)
MIN FOR JUSTICE v FALLON AKA O FALLUIN UNREP FINLAY-GEOGHEGAN 14.10.2005 2005/38/7986 2005 IEHC 322
EXTRADITION ACT 1965 PART III
DPP, PEOPLE v KENNY 1990 2 IR 110
CRIMINAL LAW
Sentence
Arrest - Bench warrant - Execution of warrant - Failure to appear at sentencing while on bail - Direction by Circuit Court Judge - Previous production at District Court - Warrant endorsed - Whether bench warrant still valid - Whether warrant was spent - Whether arrest unlawful - Whether applicant should have been brought before District Court in Dublin - Whether applicant in lawful custody - Killeen v DPP [1997] IR 218; DPP (Garda John Ivers) v Murphy [1999] 1 IR 98; DPP (McTiernan) v Bradley [2000] 1 IR 420; Minister for Justice, Equality and Law Reform v O'Fallúin [2005] IEHC 322, (Unrep, Finlay Geoghegan J, 14/10/2005) and People (DPP) v Kenny [1990] 2 IR 110 considered - Habeas Corpus Act 1781 (21 & 22 Geo 3, c 11) - Constitution of Ireland 1937, art 40.4 - Application refused (2010/1817SS - Peart J - 16/10/2010) [2010] IEHC 399
Klier v Governor of Cloverhill
Facts The applicant, who was detained on foot of a remand warrant dated 7 October 2010 signed by Her Honour Judge Delahunt at the Circuit Criminal Court after the applicant had been brought before her on foot of a bench warrant which had issued from that Court on 16 October 2009 (when the applicant failed to appear for sentencing) submitted that he was being detained unlawfully as the aforementioned bench warrant was 'spent' by the time he was arrested and brought before the Circuit Court on 7 October 2010. The applicant had previously been arrested on foot of that same bench warrant on 27 September 2010 and was brought before Gort District Court on the following day. However, the District Judge refused to deal with the matter as the warrant ought to have been brought before a Judge of the District Court of the County of Dublin. The applicant was then brought in custody to Tallaght District Court on foot of the same warrant. However, on that date the applicant was with the agreement of the notice party released from custody and the Judge made no order. It was submitted by counsel on behalf of the respondent that the warrant was not spent as it was not fully executed. It was further submitted that in any event, the law was clear that once the accused person was actually before the Court, it mattered not whether the person was brought before the Court by some illegal process, and the learned Circuit Court Judge had jurisdiction to deal with the matter by remanding the applicant in custody for sentencing, as she did.
Held by Peart J. in dismissing the application: That the bench warrant was not as a matter of law executed either at Gort District Court or at Tallaght District Court as on neither occasion did the Judge fully deal with the matter. Consequently, the warrant was not spent. Therefore, the Circuit Court Judge was entitled to decide that the warrant was still extant and unexecuted, and that the applicant should be arrested again on foot of same. She was also correct in remanding the applicant in custody. Even if the foregoing is incorrect, on the basis of the authorities submitted by counsel for the respondent, the presence of the applicant before the Circuit Court on 7 October 2010 was sufficient for the learned Circuit Judge to deal with the matter the way she did.
Reporter: L.O'S.
MR JUSTICE MICHEAL PEART DELIVERED ON THE 16TH DAY OF OCTOBER 2010:
The applicant is currently detained by the respondent on foot of a Remand warrant dated 7 th October 2010 signed by Her Honour Judge Katherine Delahunt at the Circuit Criminal Court, after the applicant had been brought before her having been arrested on the 6 th October 2010 on foot of a Bench Warrant which had issued from that Court on the 16 th October 2009, when the applicant failed to answer his bail and appear before that Court on the said date, being the date on which, following a plea of guilty on the 20 th May 2009 in relation to certain theft offences, he was due to be sentenced.
The applicant has argued that the Bench warrant which was issued on the 16 th October 2009 was 'spent' by the time he was arrested on the 6 th October 2010, and that his arrest was therefore unlawful, and therefore that he had been brought unlawfully before the Court on the 7 th October 2010, and that the learned Circuit Court Judge had no basis in law to further remand him in custody, and that she was in error in determining on that date that the Bench warrant dated 16 th October 2009 was still valid on the basis that it had not previously been lawfully executed.
The applicant has submitted on the evidence before this Court that it is the case that the Bench warrant was spent by the time the applicant was arrested on the 6 th October 2010, since he had previously been arrested on foot of same on the 27 th September 2010 and the warrant was fully executed when the applicant was brought before the District Court at Tallaght on the 29 th September 2010, following which the District Judge indicated that he was making no order, and following which, also, the applicant was with the agreement of the Notice Party released and remained at liberty until his re-arrest on the same warrant on the 6 th October 2010. The applicant is of the view that the agreement to his release on that date was because the Notice Party was also of the view that by the 6 th October 2010 the bench warrant was spent, or at least that there was some doubt in that regard given the events up to that point.
I have had the benefit of a grounding affidavit sworn by the applicant's solicitor, Pádraig O'Donovan, as well as oral evidence from both Garda Francis Brennan who effected the arrest of the applicant on the 27 th September 2010 and the later arrest on the 6 th October 2010, and Detective Garda David Jennings, the investigating Garda in respect of the charges to which the applicant has pleaded guilty, and who gave evidence before the learned Circuit Court Judge on the 7 th October 2010.
From that evidence I can arrive at the following findings of fact in relation to the events leading up to the granting of the Remand Warrant dated 7 th October 2010 on foot of which the applicant is currently held, and thereafter consider the submissions which have been made by Counsel for both sides.
Having been charged with three theft offences the applicant was returned for trial at the Circuit Criminal Court on the 20 th May 2001 on which date he pleaded guilty to the offences charged in Bill Number 140/2009, and thereafter he was remanded on bail to appear again on the 16 th October 2009. On that date he in fact was present in Court, but that before his case was called he left Court and was not present when his case was called thereafter. This led to bench warrant being issued on that date.
That bench warrant commanded that the applicant be apprehended and directed that he be brought "before The Presiding Judge at this present Sittings of the Circuit Court aforesaid if the same be then and there sitting, or if he cannot be taken during this present Sittings of said Court, but shall be taken during any adjournment of this present Court or future Sittings thereof that then as soon after as he shall be taken you bring or cause him to be brought before the Presiding Judge, or if he shall be taken at a time when the Circuit Court shall not be sitting that then as soon after as he shall be taken you bring or cause him to be brought before a Judge of the District Court of the said County to be sent to the next sittings of the Circuit Court in custody or to admit him to bail conditioned for his personal appearance at the sittings of the Circuit Court at the Law Courts, Four Courts, Dublin 7 aforesaid to answer as aforesaid and further to be dealt with according to law." (emphasis added)
In relation to the underlined direction above, it is relevant on this application to note that the warrant is headed "Dublin Circuit - County of the City of Dublin". In other words the direction was that he be brought before a District Court in the County of the City of Dublin.
It was not until Monday 27 th September 2010 at about 5pm that the applicant was arrested at his home in Ennis, Co. Clare by Garda Brennan, following which he was brought to Ennis Garda Station where he was processed as an arrested person. Garda Brennan made enquiries from the Courts Service as to which District Court he could bring the applicant before and according to his evidence he was informed that he could bring the applicant to any District Court. The District Court at Ennis was not then sitting and having held the applicant overnight at Ennis Garda Station, he brought the applicant to Gort District Court on the following day, the 28 th September 2010 at 10.30am, for the purposes of executing the warrant. At that stage he endorsed the warrant as follows: "Executed in (sic) warrant by arresting the defendant and bringing him before Gort District Court on the 29/9/10". He handed the warrant to the District Court Clerk. The matter was not called during the morning and at about 2.30pm. that day the District Judge called Garda Brennan towards the Bench and handed him back the warrant and...
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