State (Dunne) v Martin

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 05 February 1982
• Neutral Citation: 1982 WJSC-SC 877
• Docket Number: [S.C. No. 56 of 1981]
• Court: Supreme Court
• Date: 05 February 1982

1982 WJSC-SC 877

THE SUPREME COURT

O'Higgins C.J.

Henchy J.

Griffin J.

No. 40 S.S./1981

No. 58/1981

STATE (DUNNE) v. JUDGE MARTIN

THE STATE (MICHAEL DUNNE)

v.

JUDGE MARTIN

1 Judgment of Henchy J. delivered the 5th February 1982 [Nem Diss]

2 On the 6 July 1978 Michael Dunne ("the accused") was convicted in the Dublin District Court on six charges of obtaining goods by virtue of a forged instrument. He was apparently sentenced to six concurrent terms of imprisonment amounting in all to nine months. He appealed to the Dublin Circuit Court, where the matter came before Judge Martin on the 27 February 1980. When the appeals were opened by the accused's solicitor, Judge Martin intimated that he would not impose custodial sentences if the accused paid the sum of £110 by way of compensation and he adjourned the appeals until the 1 December 1980. Such adjournment must have made clear to everybody in court, especially to the accused, that if he did not pay the £110 by the 1st December, he would be liable to serve the whole or, at least, part of the nine months imprisonment imposed in the District Court. One would have expected that, in the light of Judge Martin's indulgence, the accused would have put his solicitors in funds in sufficient time to ensure that the £110 would be paid at the very latest when the cases would be called on the 1 December.

3 Consider then what took place when the adjourned appeals came before Judge Martin on the 1 December. The accused did not appear. His solicitor did not appear. And there was no sign of the £110. At no stage since then has any explanation been given of such off-hand treatment of the Circuit Court, other than the casual and lame statement in the accused's skimpy affidavit in support of his application for a conditional order of certiorari that he "had forgotten the date of the adjournment and had not been notified of the same by the Gardai or by (his) solicitor". One would have thought that a person in his position, with the sword of Damocles hanging over him, would have needed no reminding of the fate that awaited him on the 1 December if he did not respond by then to the Judge's offer. It is not wonder that on that date, finding that the locus poenitentiae which the accused had been so leniently given had been ignored, Judge Martin dismissed the appeals and affirmed the six sentences amounting in all to nine months imprisonment. He obviously and justifiably considered that a person who thus ignored the court without a satisfactory explanation was unworthy of the indulgence of suspended sentences.

4 A warrant or warrants on foot of those six orders of affirmation were apparently issued, for on the 12 December 1980 the accused was arrested and lodged in Mountjoy prison. Judge Martin was now functus as far as the appeals were concerned, but in an access of further indulgence, on an application on that behalf having been made to him by a new solicitor acting for the accused, he purported on the 15 December 1980 to reinstate the appeals and to list them for hearing on the 16 December 1980. I fail to see how the Judge could have...