Olafusi v Governor of Cloverhill Prison and DPP

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 11 December 2009
• Neutral Citation: [2009] IEHC 558
• Court: High Court
• Date: 11 December 2009

[2009] IEHC 558

THE HIGH COURT

[No. 1727 S.S./2009]

Olafusi v Governor of Cloverhill Prison & DPP

[2009] IEHC 558

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND, 1937

Frederick Olafusi

Applicant

And

The Governor of Cloverhill Prison

And

The Director of Public Prosecutions

Respondents

CONSTITUTION ART 40.4.2

IMMIGRATION ACT 2004 S12(1)(A)

IMMIGRATION ACT 2004 S12(2)

IMMIGRATION ACT 2004 S13

DPP v REDMOND 2006 3 IR 188 2006 2 ILRM 182 2006/21/4322 2006 IESC 25

DEAN v DPP UNREP HEDIGAN 22.2.2008 2008/11/2328 2008 IEHC 87

CONSTITUTION ART 40

REFUGEE ACT 1996 S9(8)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4(1)

CONSTITUTION ART 38.1

IMMIGRATION LAW

Evidence of identity

Failure to produce - Failure to provide adequate explanation -- Concern regarding identity - Guilty plea - Jurisdiction to refuse guilty plea -Accused legally represented - Subsequent remand in custody - Whether exceptional circumstances - Whether unfair procedures - People (DPP) v Redmond [2006] IESC 25, [2006] 3 I.R. 188 applied; Dean v DPP [2008] IEHC 87, (Unrep, HC, 22/02/2008) considered - Immigration Act 2004 (No 38), s 12(1), (2) and s 13 - Refugee Act 1996 (No. 17) 1996, s 9(8) - Constitution of Ireland, Article 38 and 40.4.2 - Detention declared illegal and release of prisoner ordered - (2009/1727 - O Neill J - 11/12/2009) [2009] IEHC 558

Olafusi v Governor of Cloverhill Prison

Facts The applicant was arrested and charged with offences contrary to ss.12(1)(a) and (2) and s.13 of the Immigration Act, 2004 for failure to produce no demand to a member of an Garda Siochana evidence of his identity and nationality and satisfactory explanation of the circumstances that prevented him from doing so. Having been brought before the Dublin Metropolitan District Court where evidence of arrest, charge and caution was given and having been remanded, he then entered a plea of guilty before District Judge Watkins in Cloverhill District Court. The court inquired if the applicant was giving evidence regarding lack of documentation as she did not accept instructions as being good enough for her court. On second calling, she was informed that the applicant was not giving evidence, she then remanded the applicant in custody having refused to accept the plea of guilty because of a concern as to the true identity of the applicant. These habeas corpus proceedings were instituted and the applicant was released from custody upon the High Court finding that his detention was unlawful.

Held by O'Neill J. in finding for the applicant, that the detention of the applicant on foot of a decision to refuse a plea in the absence of appropriate exceptional circumstances was unquestionably illegal detention. It is only in the most exceptional circumstances can there be a refusal to accept a plea. Without doubt, the refusal of a guilty plea for the purposes of enabling for the purposes of enabling an adjournment to facilitate further enquiries concerning the identification of an accused is not a proper basis for refusing a plea.

Reporter: C. O'C

1. The Facts

2 1.1 On the 8 ^th October, 2009, the applicant was arrested and charged with offences contrary to ss. 12 (1) (a) and (2) and s.13 of the Immigration Act 2004for failure to produce on demand to a member of An Garda Síochána evidence of his identity and nationality and for failure to provide a satisfactory explanation of the circumstances that prevented him from doing so. On the same day the applicant was brought before the Dublin Metropolitan District Court where evidence of arrest, charge and caution was given by the prosecuting garda, Garda O'Meara, in respect of the single charge sheet before the Court. The applicant was legally represented. On foot of the application of Garda O'Meara the applicant was remanded in custody to appear before Cloverhill District Court on the 15 ^th October, 2009. Counsel for the applicant indicated to the Court that the applicant was not consenting to the remand.

3 1.2 On the 15 ^th October, 2009, the applicant appeared in Cloverhill District Court, where again he was legally represented. A plea of guilty was entered on his behalf. This was not accepted by the District Court Judge. Paragraph 5 of the affidavit of the applicant's solicitor, Michelle Sheeran, sets out what occurred on that date in Court based on the applicant's instructions which were confirmed to her by counsel, as Ms. Sheeran was not in Court herself on that date. This account of events was not disputed by the second named respondent, apart from the averment that the applicant had given a false name to Garda O'Meara. The Court was told that Garda O'Meara's recollection was that the applicant had given no details to him whatsoever. This dispute, however, is not central to these habeas corpus proceedings. The relevant portion of the aforementioned affidavit reads as follows:-

"…

When the case was called the prosecuting Garda told the District Court that the Gardai were not satisfied as to the true identity of the Applicant and that he was seeking a remand in custody. Counsel had received instructions from the Applicant that he was pleading guilty to the offence and he informed the Court that there was a plea of guilty. At that juncture the District Judge said that she could not take a plea of guilty where there was an issue about the Applicant's identity. Counsel told the District Judge that the Applicant had applied for asylum and that the letter acknowledging receipt of the application from the relevant authorities had been shown to the prosecuting Garda. Counsel proffered the letter to the District Judge but she said that the application for Asylum was irrelevant. When asked by the District Judge Garda O'Meara told the Court that the Applicant had initially given a different name and had not given the Gardai any assistance and that the Applicant had been observed working in the shop where he had been arrested. In response to a question from the District Judge Garda O'Meara further told the Court the Applicant had not been asked to fill out a Bio Data form and had not been asked to provide fingerprints. Counsel informed the District Judge he was instructed that the Applicant was not in a position to provide any further documents and reiterated that he wished to plead guilty. Further that it was his understanding that where Applicants had successfully brought Habeas Corpus Applications when a District Judge has refused to accept a guilty plea. The District Judge asked if there were written Judgments and Counsel said not to his knowledge. District Judge Watkins then inquired if the Applicant was willing to give evidence regarding the lack of documentation as she did not accept instructions as being good enough for her Court. Counsel on behalf of the Applicant asked that the matter be put to second calling so that could [sic.] take instructions as to...