State (Ahearne) v Governor Limerick Prison

• Jurisdiction: Ireland
• Judge: Henchy J.,Walsh J.
• Judgment Date: 20 April 1982
• Neutral Citation: 1982 WJSC-SC 59
• Court: Supreme Court
• Date: 20 April 1982
• Docket Number: (323/80)

STATE (Aherne) v. GOVERNOR OF LIMERICK PRISON

THE STATE AT THE PROSECUTION OF CHRISTOPHERAHERNE

v.

THE GOVERNOR OF LIMERICK PRISON

1982 WJSC-SC 59

(323/80)

THE SUPREME COURT

1 JUDGMENT delivered the 20th day of April 1982by O'HIGGINS C.J.

2 I have read the three Judgments about to be delivered. Subject to one matter, I agree with the Judgment of Mr. Justice Walsh and with the conclusions reached by Mr. Justice Henchy and Mr. Justice Griffin. It seems to me, however, that the question whether or not relief by way of conditional order of habeas corpus or bail ought or ought not to have been granted to the Respondent was not directly an issue on this appeal and on that account has not, in my view, been fully considered. For that reason I do not propose to express any opinion on this question.

3 JUDGMENT delivered on the 20th day of April 1982by Walsh J.

4 The question to be decided in this appeal is whether the Circuit Court in an appeal against a conviction imposed by the District Court in the exercise of its summary criminal jurisdiction has power to increase the sentence pronounced by the District Justice against whose conviction the appeal has been taken.

5 The prosecutor was convicted at Cork District Court on 15 April 1980 of the offence of unlawfully assaulting one Aiden Hegarty which is an indictable offence. The District Court being of opinion that the facts proved against the prosecutor constituted a minor offence fit to be tried summarily and the prosecutor on being informed by the District Court of his right to be tried with a jury not objecting to being tried summarily the complaint was tried summarily. The prosecutor was found guilty and sentenced to nine months imprisonment.

6 Against this conviction he took an appeal to the Circuit Court sitting at Cork "against the conviction made by the Justice of the District Court in the abovementioned proceedings on 15 April 1980". The notice of appeal made no reference to sentence. In the Circuit Court the conviction was affirmed and the sentence was increased to one of twelve months imprisonment.

7 Subsequently the prosecutor obtained an order from the High Court on 25 July 1980 under Article 40 section 4 subsection 2° of the Constitution directing the Governor of Limerick Prison to produce the prosecutor before the High Court and to certify in writing the grounds of his detention. The Governor of the Prison made a return to the order by relying upon the District Court and Circuit Court orders. On the hearing of the return the High Court quashed the order of the Circuit Court on the grounds that the Circuit Judge had no jurisdiction to increase the sentence and upheld the order of the District Court and directed the arrest of the prosecutor, who had been released on bail, to serve the sentence imposed by the District Court.

8 This latter procedure appears to me to be somewhat unusual. The initial order made by the High Court was one for habeas corpus not for certiorari to quash the Circuit Court order. At the date the conditional order was made the plaintiff was in lawful custody and in reality the only question which remained was whether the term which he would serve would be nine months or twelve months, subjectto whatever remission for good conduct which might be available. On the return by the Governor of the Prison the High Court appears to have treated the matter as if it were an application for certiorari rather than habeas corpus. This appeal is really an appeal against an order of certiorari made by the High Court rather than against an order of habeascorpus.

9 The appeal to this Court has been taken by the Governor of Limerick Prison. I have very grave doubts as to whether he had any locus standi in the matter because of the nature of the High Court order. He had not yet been called upon to imprison the prosecutor in respect of the extra period of imprisonment imposed by the Circuit Court and the Circuit Judge was not a party to the proceedings. Furthermore, in August 1980 the prosecutor was released on ball pending the outcome of the hearing in the High Court. However, the Court has been informed that he was returned to prison after the High Court decision where he has since served the residue of the nine months sentence. This has now been completed and the prosecutor is no longer imprisoned.

10 Be that as it may, however, there is a substantial point of law to be decided, namely whether a Circuit Court can on an appeal against conviction impose an increase of penalty. The District Court from which is the notice of appeal used by the prosecutor purports to refer to appeals against "decree, dismiss, conviction or order" and then a further point speaks of "or against so much of the ....decree, dismiss, conviction or order as declared ...." In this particular notice of appeal the latter portion was struck out by the appeallant and the notice of appeal reads simply "against the conviction ...."

11 Section 85 of the Courts of Justice Act 1924expressly confers a right of appeal in criminal cases from a Justice of the District Court to a Judge of the Circuit Court "againstany order for the payment of a penal or other sum exceeding twenty shillings or for the doing of anything at greater expense than twenty shillings .... or for any term of imprisonment exceeding one moth" by the person against whom the order shall have been made and provides that the decision of the Judge of the Circuit Court shall be final, conclusive and not appealable. Section 18 of the Courts of Justice Act 1928repealed section 85 of the Act of 1924 and also provided for an appeal in criminal cases from the District Court to the Circuit Court which would lie in respect of any order which imposed any fine or any period of imprisonment. The District Court established by the Act of 1924 was abolished in 1961 and the present District Court was established by the Courts (Establishment and Constitution) Act 1961, section 5. Section 50 of the Courts (Supplemental Provisions) Act 1961provided that when an appeal is taken against an order in a criminal case made by a Justice of the District Court convicting a person and sentencing him .... to undergo a term of imprisonment and either (i) the notice of appeal states that the appeal is against so much only of the order as relates to the sentence or (ii) the appellant, on the hearing of the appeal, indicates that he desires to appeal against so much only of the order as relates to the sentence, then, notwithstanding any rule of law, the Circuit Court shall not, on the hearing of the appeal, re-hear the case except to such extent as shall be necessary to enable the court to adjudicate on the question of sentence. At first sight that would appear to indicate that the "rule of law" in existence at the time the Act was passed was to the effect that an appeal from a District Court conviction on asummary matter was by its nature an appeal against both conviction and sentence and that it was not possible to limit the appeal to one or other of these results. Section 51 of the Act of 1924 transferred to the Circuit Court all jurisdiction not thereinbefore expressly excepted which was vested in or capable of being excercised by Recorders, County Court Judges, and Chairmen and Courts of Quarter Sessions existing before the Act came into force. This jurisdiction was transferred to the present Circuit Court by virtue of section 22 subsection (3) of the Courts (Supplemental Provisions) Act 1961. The jurisdiction of the Circuit Court to hear appeals from the District Court in criminal matters does not stem from section 51 of the Act of 1924 as re-enacted by the 1961 Act but from section 18 of the 1928 Act as re-enacted and amended by the 1961 Act. But as the right of appeal is not expressly Limited it would appear to be, in that respect, of the same character as that which lay from Petty Sessions to QuarterSessions.

12 The procedural aspect and the character of the jurisdiction of the former Quarter Sessions was considered in the case of Ex Parte Rev. James M'Fadden - Habeas Corpus ( Exch. Div, May 17th 188 in which judgement was delivered by Lord Chief Baron Palles who presided in the Court of the Exchequer Division. The statutory section which he had to consider in that case was section 24 of the Petty Sessions Act 1851 where it is provided at subsection (6) that when the right of appeal shall be exercised it shall be lawful for the Court of Quarter Sessions "to entertain the same, and to confirm, vary or reverse the order made by the Justices". He held that the words "to entertain an appeal" meant that the right of appeal was conferred by statute only without any limitation on the powers of the Court of Quarter Sessions and that the appeal was a new trial in every sense of the word, that is to say in the result both conviction and sentence were opento review depending on the outcome of the re-trial. The Court of Quarter Sessions had full discretion to impose a sentence within the statutory limits as to the period of sentence, if it was a sentence of imprisonment. That view of the law was apparently the view of the Oireachtas when it passed the Courts (Supplemental Provisions) Act 1961and made special provision for the possibility of appealing against sentence as distinct from conviction. It did not make any such provision for an appeal against conviction solely. Section 18 of the Courts of Justice Act 1928extended the right of appeal to all cases where any fine or any imprisonment was imposed but made provision for appealing against conviction alone or penalty alone.

13 The learned judge in the High Court took the view that the form of the notice of appeal (Form A1) scheduled to the Rules of the District Court in terms permits an appeal to be taken against the whole or part only of an order of the District Court. He held therefore that in a criminal matter an appeal may be taken to the...