O'Neill v Butler

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 26 November 1979
• Neutral Citation: 1978 WJSC-HC 3863
• Docket Number: No. 477 S.S./1979
• Court: High Court
• Date: 26 November 1979

1978 WJSC-HC 3863

THE HIGH COURT

No. 477 S.S./1979

O'NEILL v. BUTLER

BETWEEN:

GARDA DERMOT O'NEILL

and

CHRISTOPHER BUTLER

and

BETWEEN:

SERGEANT EAMON COFFEY

and

MICHAEL McDONAGH AND MARTIN JOYCE

and

BETWEEN:

GARDA JAMES R. McGRATH

and

HUGH GERARD WALKER

1 Judgment of Mr. Justice McMahondelivered the 26th day of November 1979.

2 These are three cases which have been stated by District Justice Robert O hUadhaigh in the Dublin Metropolitan District Court on his own initiative under Section 52 (1) Courts (Supplemental Provisions) Act 1961. The issues raised by the three cases are substantially identical and relate to the manner in which the District Justice should exercise the power of granting or refusing Legal Aid Certificates under the provisions of theCriminal Justice (Legal Aid) Act 1962.

3 The cases were stated by the District Justice before he had heard any evidence in the proceedings and contain no findings of fact in relation to any of the offences charged. In the case of Hugh Gerard Walker the charge is unlawful assault on one Ian Gallagher contrary to common law and the High Court is asked to say:

4 (a) What is meant by the words "gravity of the charge" and "exceptional circumstances" in Section 2 (1) (b) Criminal Justice Legal Aid Act 1962.

5 (b) Whether having regard to the particulars contained in the charge and the sentence provided by Section 11 (2) Criminal Justice Act 1961 for persons convicted of common assault the District Justice is entitled to hold that the offence charged is a minor offence which does not require in the interests of justice that the defendant should have Legal Aid in the preparation and conduct of his defence.

6 (c) If Legal Aid is not required by the gravity of the offence whether the onus is on the defendant to show that it is required by some exceptional circumstances.

7 (d) Should the Justice inform the Defendant of his right toapplyfor Legal Aid under the provisions of the 1962 Act where it appears to the Justice that the defendant's means are sufficient to enable him to obtain Legal Aid.

8 The questions asked in the other cases are substantially the same.

9 The power of a District Justice under Section 52 of the Courts (supplemental Provisions) Act 1961is to refer to the High Court a question of law arising in proceedings before him by reference to the facts found by him. He can not ask the High Court to define generally and without reference to...