Re Tynan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1969
• Date: 01 January 1969
• Docket Number: [1963. No. 87 SS.]
• Court: Supreme Court

Supreme Court

[1963. No. 87 SS.]

In re Tynan

In re Tynan

On the 5th December, 1961, Richard Tynan was convicted at Naas Circuit Court of the larceny of cattle and was sentenced by His Honour Judge Deale to 18 months imprisonment. Tynan was also convicted of larceny of cattle on another occasion and was sentenced by Mr. Justice Henchy in the Central Criminal Court on the 15th March, 1962, to 18 months imprisonment which was to commence on the legal expiration of the sentence imposed on the 5th December, 1961. On the 2nd April, 1962, the Court of Criminal Appeal set aside the conviction of the 5th December, 1961, and ordered a retrial of the relevant charge of larceny; thus the sentence imposed by Mr. Justice Henchy on the 15th March, 1962, became operative on the 2nd April, 1962, and that sentence expired on the 17th May, 1963. On the 4th June, 1962, the Court of Criminal Appeal refused an application by Tynan for leave to appeal against his conviction in the Central Criminal Court.

On the 20th July, 1962, Tynan was convicted at the retrial which had been ordered by the Court of Criminal Appeal on the 2nd April, 1962, and he was sentenced by His Honour Judge Deale to a term of 15 months imprisonment with hard labour and that sentence was expressed to take effect upon the expiration or sooner determination of the sentence imposed by Mr. Justice Henchy in the Central Criminal Court on the 15th March, 1962. On the 30th November, 1962, the Court of Criminal Appeal refused an application by Tynan for leave to appeal against his conviction at the said retrial.

The warrant in execution dated the 23rd July, 1962, was on Form P.25 and is described in the judgment of the Chief Justice,post. It was issued by the Naas Circuit Court on foot of Tynan's conviction at the said retrial.

Tynan applied ex parte to the High Court for a conditional order of habeas corpus and the application was refused by the High Court (Budd, Teevan and Kenny JJ.) on the 3rd September, 1963. Tynan then renewed his ex parte application to the Supreme Court in person by way of appeal on the 14th November, 1963, when judgment was reserved. The judgments, post, were delivered on the 20th December, 1963.

Ó Dálaigh C.J. ó dálaigh :—

This appeal is against an order of a divisional court of the High Court, dated the 3rd September, 1963, refusing the applicant's application for a conditional order of habeas corpus. The application was moved on the 27th August, 1963, and the High Court reserved its judgment until the 3rd September, 1963.

The applicant, on the 8th August, 1963, was transferred from Mountjoy Prison to Portlaoise Prison. This transfer was effected on the purported authority of a transfer order dated the 25th July, 1963, and made by the Minister for Justice under the powers conferred on him by s. 17 of the Criminal Justice Administration Act, 1914. The applicant says, in the affirmation filed in support of his application, that the Governor of Portlaoise Prison informed him that he was holding him on the authority of that transfer order. The transfer order is in the following terms:—"The Minister for Justice in exercise of the powers conferred on him by sub-section (3) of section 17 of the Criminal Justice (Administration) Act, 1914, as modified by section 43 of that Act and as adapted by section 11 of the Adaptation of Enactments Act, 1922, directs that Richard Tynan who pursuant to warrant dated 23rd day of July, 1962, issued by Naas Circuit Court is detained in Mountjoy Prison for a period of 15 months from the date of expiry of the sentence imposed by the Central Criminal Court be removed from said Mountjoy Prison to Portlaoise Prison, there to be imprisoned until the expiration of the said period. Dated this 25th day of July, 1963—For the Minister for Justice (Signed)J. J. McCarthy (A person authorised in this behalf by the said Minister)."

The warrant referred to in the transfer order is in these terms:—

"WARRANT

To the Governor of Mountjoy Prison, Dublin.

Receive into your Custody the bodies of the above-mentioned Persons, tried and convicted at a Circuit Court held at Naas in the County of Kildare on the 17th day of July and following days, before Judge Deale and cause said Persons so convicted severally to undergo the Sentence opposite to their respective names, and transmit above returns and this Warrant to the Secretary, Department of Justice.

Dated this 23rd day of July, 1962. By Order of the Court (Sgd.) Patrick J. O'Neill. County Registrar for County Kildare."

This warrant which bore an official seal is at the foot of a document bearing the caption:—"County of Kildare. A return of prisoners under rule, order, or sentence at a Circuit Court held in and for said County commencing on Tuesday the 17th day of July, 1962." The form contains a number of headings with, under them, the following information:—

"Name—Richard Tynan.

Crime—Larceny contrary to Section 3 Larceny Act, 1916.

Sentence—15 months hard labour to take effect from date of expiry or sooner determination of the sentence now serving for offence imposed by Mr. Justice Henchy in Central Criminal Court.

Date of...