State (Holland) v Kennedy
| Jurisdiction | Ireland |
| Judge | Justice Hamilton |
| Judgment Date | 29 July 1976 |
| Neutral Citation | 1975 WJSC-HC 1222 |
| Court | High Court |
| Date | 29 July 1976 |
1975 WJSC-HC 1222
THE HIGH COURT
Justice Hamiltonon 29th Julv 1976.
This is an application brought by the prosecutor herein Martin Holland to have made absolute the Conditional Order of Certiorari directed by Mr. Justice McMahon on the 25th day of May 1976 to District Justice Eileen Kennedy to send before the Court for the purpose of being quashed an Order made by her on the 10th day of May 1976 unless cause shown to the contrary.
By that Order the prosecutor was sentenced to one months imprisonment in Mountjoy Prison, the District Justice having certified that the prosecutor was of so unruly a character that he could not be detained in a place of detention provided under part five of the Childrens Act1908/ 1957.
The application to Mr. Justice McMahon was grounded on an affidavit sworn by the prosecutor's brother, Vincent Holland and the exhibits therein referred to.
The prosecutor at the same time applied for a Conditional Order of Habeas Corpus directed to the Governor of MountjoyPrison but no order was made on the said application, the prosecutor being admitted to bail pending the determination of the Certiorariproceedings.
As appears from his order made on the 25th day of May 1976 the ground upon which Mr. Justice McMahon granted the said conditional order was that no enquiry was made by the learned District Justice on the basis of whioh any certification as to the unruliness or otherwise of the prosecutor could properly have been made.
By affidavit sworn herein on the 29th day of June 1976 the learned District Justice purported to show cause and the said affidavit was filed by way of showing cause against making absolute the Conditional order of Certiorari.
In addition an affidavit sworn herein on the 29th day of June 1976 by Garda Sergeant Gabriel O'Malley was also filed by way of showingcause.
It appears from the three affidavits filed in this matter that the following are the relevant facts:-
1. The prosecutor was born on the 16th day of January 1961 and is a "young person" within the meaning of the Children's Act1908.
2. The prosecutor on the 10th day of May 1976 pleaded guilty before District Justice Eileen Kennedy to the following offence viz. that he did on the 22- 4-1976 at Edenmore Shopping Centre, Rahenyin the Dublin Metropolitan District unlawfully assault one John McKelvey contrary to common law.
3. He, in company with Mr. Joseph Reid and Mr. Francis Dwyer had been charged also with unlawfully and maliciously wounding the said John McKelvey and with assaulting the said John McKelvey, thereby causing him actual bodily harm.
The prosecutor and the said Joseph Reid had pleaded not guilty to the said latter charges which pleas were accepted. The said Francis Dwyer pleaded guilty to these charges.
4. The applicant was informed by the learned District Justice of his rights to make application for legal aid but did not avail of thisright.
5. The accused, including the prosecutor, having pleaded guilty as aforesaid, the learned District Justice heard the evidence of John McKelvey with regard to the nature and circumstances of the assault.
6. Det. Sergeant O'Malley gave evidence that the accused had no previous convictions.
7. On the basis of the evidence which the learned District Justice heard in relation to the offence committed, she 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 certified that he was of so unruly acharacter that he could hot be detained in a place of detention provided under Part V of the Children's Act 1908.
8. The learned District Justice did not conduct any enquiry as to or receive any evidence as to the general character of the prosecutor but based her certificate, as appears from her affidavit, solely on the circumstances and nature of the assault.
On these faots the legality of the prosecutor's detention and the validity of the order made the 10th day of May 1976 is challenged on the following grounds:-
2 That no enquiry was made by the District Justice on the basis of which any certification as to the unruliness or otherwise of the said Martin Holland could properly have been made.
2. That the certification that a young person is of so unruly a character that he cannot be detained in a place of detention provided under Part V of the Children's Act 1908 is a judicial act and should only be done...
To continue reading
Request your trial
-
Stokes v O'Donnell
...... 651 COPYRIGHT ACT 1963 S27 TRULOC LTD V MCMENAMIN 1994 1 ILRM 151 KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 O'KEEFFE V BORD PLEANALA 1992 ILRM 237 ROAD TRAFFIC ACT 1961 S56 ROAD TRAFFIC ACT 1961 S66 HOLLAND, STATE V KENNEDY 1977 IR 193 CHILDREN ACT 1908 S102(3) ROAD TRAFFIC (AMDT) ACT 1978 ......
-
Sweeney v District Justice Brophy
......207 |Sweeney v. Brophy| Citations: RSC O.84 r26(4) TYNAN, STATE V KEANE 1968 IR 348 CONLON V PATTERSON 1915 2 IR 169 HOLLAND, STATE V KENNEDY 1977 IR 193 ......
-
Leonard v District Judge Garavan
......, all to the effect that by reason of the circumstances prevailing, including her mental state and condition, her rights as guaranteed under natural and constitutional justice were not adhered ... 1910 2 IR 695 ANISMITIC V FOREIGN COMPENSATION COMMISSION 1969 2 AC 147 HOLLAND, STATE V KENNEDY 1977 IR 193 O'REILLY V MACKMAN 1983 2 AC 237 KILLEEN V DPP ......
-
O'Shea v O'Buachalla
...... AND THE DIRECTOR OF PUBLICPROSECUTIONS RESPONDENTS Citations: DALY, STATE V RUANE 1988 ILRM 117 CRIMINAL PROCEDURE ACT 1967 S7(2) HEALY, STATE V DONOGHUE 1976 IR ... (FITZGIBBON ST STATION) 1986 ILRM 95 KWEDER V MIN FOR JUSTICE 1996 1 IR 381 HOLLAND, STATE V KENNEDY 1977 IR 193 KILLEEN V DPP 1998 ILRM 1 ANISMOUR LTD V FREIGHT ......