State (Holland) v Kennedy

• Jurisdiction: Ireland
• Judge: O. HIGGINS C.J.,KENNY J.
• Judgment Date: 26 April 1977
• Neutral Citation: 1977 WJSC-SC 816
• Court: Supreme Court
• Docket Number: [1976 No. 207 SS],No. 207S.S/1976
• Date: 26 April 1977

STATE (HOLLAND) v. KENNEDY

AFFIRMING HIGH-29.7.76

THE STATE (AT THE PROSECUTION OF MARTIN HOLLAND)

v.

DISTRICT JUSTICE EILERN KENNEDY AND THE GOVERNOR OF MOUNTJOYPRISON

1977 WJSC-SC 816

O. HIGGINS C.J.

HENCHY J.

KENNY J.

No. 207S.S/1976

(154-1976)

THE SUPREME COURT

1 Judgment delivered 26th April 1977. KENNY J. O. HIGGINS C.J.concurring

2 The prosecutor, Martin Holland, was born on the 16th of January 1961 so that at the date of the offence charged against him, he was fifteen years and three months old. On the 10th of May 1976 he appeared before the respondent District Justice charged with unlawfully assaulting John McKalvey (charge to which he pleaded guilty) and with assaulting John McKelvey and causing him actual bodily harm. The Director of Public Prosecutions accepted his plea of assault, and the charge of assault and causing actual bodily harm was not proceeded with. Despite this, there were two orders made up in the District Court convicting him of each of these offences and imposing sentence. Mr. McKelvey gave evidence that on the 22nd of April 1976 the prosecutor and two other young men assaulted him, that he was struck on the face and cut by a knife which was used by one of the other two youths.

3 Section 102 sub-s. 3 of the Childrens Act 1908 provides:

"A yound person shall not be sentenced toimprisonment for an offence or committed to prison in default of payment of a fine, damages, or costs, unless the Court certifies that the young person is of so unruly a character that he cannot be detained in a place of detention provided under this part of this Act or that he is of so depraved a character that he is not a fit person to be sodetained."

4 The Guard in charge of the case testified that the accused had no previous convictions relying on what Mr. McKelvey had said about the assault and without giving the prosecutor any opportunity to give evidence of his character, certified "that the defendant is of so unruly a character that he cannot be detained in a place of detention under Part V of the Childrens Acts 1908/1957" and then adjudged be convicted and ordered him to be imprisoned in Mountjoy Prison for onemonth.

5 A conditional order of certiorari was subsequently obtained to quash the conviction of the 10th of May 1976 the prosecutor's advisors were not then aware that there were two convictions on that date on the grounds that no inquiry was made on the basis of which any certification as to the unruliness or otherwise of the said Martin Holland could properly have been made. The affidavit on which the conditional order was made stated that the District Justice "proceeded directly from conviction to sentence without making any inquiry or causingany inquiry to be made as to the character, antecedents temperament, history or domestic circumstances of the said Martin Holland". This is not denied by the District Justice in the affidavit which she filed showing cause. In her affidavit she says: "On the basis of the evidence which I heard in relation to the offence committed I came to the conclusion that the said Martin Holland had committed an unprovoked assault and having regard to the circumstances and nature of the assault I certified that he was of so unruly a character that he could not be detained in a place of detention provided under part V of the Childrens Act 1908 and that the appropriate order was to sentence the said Martin Holland to prison. There was at the material time and still is one place of detention provided under the said Part of the said Act for the Dublin Metropolitan District namely St. Laurence'sInstitution".

6 Mr. Justice Hamilton made the conditional order absolute and the District Justice has now appealed to this Court on the ground that there was some evidence on which she could come to the conclusion which she did and, that as the order is good on its face and as she acted within her jurisdiction, the High Court should not have given an order ofcertiorari.

7 The word "character" in 's. 102 means nature or disposition and the evidence about the assault on the 22nd of April wassome (though very tenuous) evidence of the prosecutor's character. But it is not sufficient for the purposes of s. 102(3) that the evidence establishes that the young person is of an unruly character: many young people are for a short period. It must show that he is so unruly that he cannot be detained in a place of detention provided under the 1908 Act. The evidence given before the District Justice did not establish this. It follows that there was no evidence upon which the District Justice could have been satisfied that the prosecutor was on the 10th of May 1976 a young person of so unruly a character that he could not be detained in a place of detention.

8 The power given to a District Justice by s. 102(3) to sentence a young person to imprisonment arises only after the youth has been convicted of some offence for which a prison sentence may be imposed on an adult. The statute provides that before this...