State (Murphy) v Kielt

• Jurisdiction: Ireland
• Judgment Date: 01 January 1985
• Date: 01 January 1985
• Docket Number: [1981 No. 427 SS]
• Court: Supreme Court

The State (Murphy) v. Kielt

The State (at the Prosecution of Michael Murphy)

and

William Kielt

[1981 No. 427 SS]

High Court

Supreme Court

Criminal law - Detention - Release on licence - Revocation of licence - Legality - Youthful offender released conditionally from detention - Condition that youth keep the peace - Youth arrested on charge of serious crime during period of release - Licence revoked and accused returned to detention - Absence of enquiry - Natural justice - Certiorari - Delay - Prisoners (Temporary Release) Rules, 1960 (S.I. No. 167), rr. 3, 5, 7 - Criminal Justice Act, 1960 (No. 27), ss. 4, 6.

The prosecutor, a youthful offender, was convicted in the District Court of a certain offence and he was sentenced to 12 months detention in St. Patrick's Institution. Having served part of that sentence, the prosecutor was granted by the respondent, who was the governor of that Institution, a conditional release from detention. One of the conditions was that, during the period of his release, the prosecutor should keep the peace and be of good behaviour. During that period, the prosecutor was arrested by the police and charged in the District Court with attempted murder; he denied the charge and was remanded in custody to St. Patrick's Institution where, on his re-admission, he was treated initially as an accused person on remand. However, on the next day the respondent, because of the gravity of the offence with which the prosecutor had been charged, revoked the prosecutor's conditional release, whereupon he was treated as a detainee who was serving his sentence. The prosecutor obtained in the High Court a conditional order of certiorari quashing the revocation of his release, unless cause were shown to the contrary. He then applied for an order absolute, notwithstanding the cause shown by the respondent.

Held by Barron J. and affirmed by the Supreme Court (O'Higgins C.J., Griffin and McCarthy JJ.), in disallowing the cause shown and making an order absolute, 1, that the only issue to be determined was whether or not there had been a breach of one of the conditions, subject to which the prosecutor's release had been granted, prior to the purported revocation of that release by the respondent.

2. That the facts that the prosecutor had been charged in the District Court with the commission of an act of attempted murder and had been remanded in custody pending his trial on that charge were not sufficient to rebut the presumption of his innocence with regard to the crime so charged or to establish that he had acted in breach of his said condition of release.

3. That, accordingly, the revocation of the prosecutor's release by the respondent had been unlawful.

Semble:

If, to the knowledge of the respondent, there had been any significant indication that the prosecutor had acted during the period of his release in breach of a condition of that release, the requirements of natural justice would have obliged the respondent to have instituted, before considering whether to revoke such release, an informal enquiry for the purpose of determining whether or not there was any evidence of such breach and, if so, to have given the prosecutor an opportunity to be heard at that enquiry.

Cases mentioned in this report__

¹ Morrissey v. Brewer (1972) 408 U.S. 471.

² Gagnon v. Scarpelli (1973) 411 U.S. 778.

³ The State (Duffy) v. Minister for Defence (Supreme Court: 9th May, 1979).

⁴ The State (Cussen) v. Brennan [1981] I.R. 181.

⁵ The State (Gleeson) v. Minister for Defence [1976] I.R. 280.

⁶ The State (Murray) v. McRann [1979] I.R. 133.

Certiorari.

On the 13th January, 1981, Michael Murphy (the prosecutor), was convicted in the District Court of the commission of certain offences and he was sentenced to detention in St. Patrick's Institution for a period of 12 months. On the 19th May, 1981, he was released conditionally from that detention by the governor of that Institution (the respondent) pursuant to the powers conferred on him by r. 3(2) of the Prisoners (Temporary Release) Rules, 1960. One of the conditions of the release was that the prosecutor should "keep the peace and be of good behaviour during the period of your release." On the 15th June, 1981, the prosecutor was arrested and, later that day, re-admitted for detention in St. Patrick's Institution where, on the following day, his release was revoked by the respondent governor in the circumstances described in the judgments,infra.

On the 23rd September, 1981, the prosecutor obtained in the High Court (Finlay P.) a conditional order of certiorari quashing, unless cause were shown to the contrary, the respondent's order which purported to terminate the prosecutor's release from St. Patrick's Institution. The respondent showed cause by affidavit and the prosecutor then applied to the High Court for an order absolute, notwithstanding the cause shown.

Rules 3-7 of the Rules of 1960 provide__

"3.

• (1). The Governor or other officer in charge for the time being of a prison may, subject to the directions of the Minister and subject to any exceptions which may be specified in directions of the Minister, release temporarily for a specified period a person serving a sentence of penal servitude or imprisonment in that prison.

• (2). The Governor or other officer in charge for the time being of Saint Patrick's Institution may, subject to the directions of the Minister and subject to any exceptions which may be specified in directions of the Minister, release temporarily a person serving a sentence of detention in Saint Patrick's Institution.

4. Directions of the Minister under Rule 3 of these Rules may be given in relation to releases generally or in relation to a particular release or series of releases or in relation to the release of any category or class of person.

5. In addition to any other conditions which may be imposed in any particular case, the release of a person under these Rules shall be subject to the following conditions, namely, that—

• (a) the person shall keep the peace and be of good behaviour during the period of release,

• (b) the person shall be of sober habits,

• (c) the person shall not communicate with, or publish or cause to be published any matter by means of newspapers or any other publishing medium or engage in public controversy.

6. Where it is proposed to release a person under these Rules—

• (a) a notice in the form set out in the Schedule to these Rules, or in a form to the like effect, shall be completed, and shall be signed by the person making the release, being the Governor or other person for the time being in charge of the prison or of Saint Patrick's Institution, as the case may be,

• (b) the person whom it is proposed to release shall be given a copy of the notice and shall acknowledge its receipt by signing or placing his mark on the original notice in the presence of a witness who shall also sign the original notice.

7. Where a person is released under these Rules, he shall return to the prison from which he was released or to Saint Patrick's Institution, as the case may be, on or before the expiration of the period for which he was temporarily released and failure to do so or the breach by him of a condition to which his release was made subject shall be deemed to be a breach of the discipline of the prison or of Saint Patrick's Institution, as the case may be."

Sections 4-7 of the Criminal Justice Act, 1960, provide__

"4.

• (1). Where the release of a person under section 2 or section 3 of this Act is made subject to conditions, the conditions shall be communicated to the person at the time of his release by notice in writing.

• (2). A person temporarily released under section 2 or section 3 of this Act shall comply with any conditions to which his release is made subject.

5. The currency of the sentence, if any, of a person temporarily released under section 2 or section 3 of this Act may, at the time of release or at any time during or after the period of release, be suspended by the Minister, if he so thinks fit, in respect of the whole or part of the period.

6.

• (1). A person who, by reason of having been temporarily released under section 2 or section 3 of this Act, is at large shall be deemed to be unlawfully at large if—

  • (a) the period for which he was temporarily released has expired, or

  • (b) a condition to which his release was made subject has been broken.

• (2). A person who is unlawfully at large shall be guilty of an offence under this section and on summary conviction thereof shall be liable to imprisonment for a term not exceeding six months.

• (3). Where, by reason of the breach of a condition to which his release under section 2 or section 3 of this Act was made subject, a person is deemed to be unlawfully at large and is arrested under section 7 of this Act, the period for which he was temporarily released shall thereupon be deemed to have expired.

• (4). The currency of the sentence of a person who is unlawfully at large for any period shall be suspended in respect of the whole of that period.

7. A member of the Garda Síochána may arrest without warrant a person whom he suspects to be unlawfully at large and may take such person to the place in which he is required in accordance with law to be detained."

The prosecutor's motion for an order absolute was heard by the High Court (Barron J.) on the 30th March, 1982.

The respondent appealed to the Supreme Court against the judgment and order of the High Court. The appeal was heard on the 18th April, 1983.

Cur. adv. vult.

Barron J.

The prosecutor is a young man aged 18 years. On the 13th January, 1981, he received a sentence of 12 months detention in St. Patrick's Institution. In May of that year, he was considered suitable for temporary release under the provisions of the Criminal Justice Act, 1960. He was granted full temporary release from the 19th May, 1981, to...