State (P. Woods) v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 30 May 1969
• Date: 30 May 1969
• Docket Number: [1967. No. 199 SS.]
• Court: Supreme Court

Supreme Court

[1967. No. 199 SS.]

The State (P. Woods) v. Attorney General

THE STATE (at the Prosecution of PATRICK WOODS)

and

THE ATTORNEY GENERAL and EDMOND J. KELLY

Criminal Law - Appeal - Abandonment - Effect of notice of abandonment of appeal given to Court of Criminal Appeal - Whether sentence of penal servitude inconsistent with provisions of the Constitution - Selection and imposition of sentence part of administration of justice - Prisoner duly sentenced but released on habeas corpus due to erroneous order and warrant - New warrant in execution directed to be issued - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 86, r. 24 - Courts of Justice Act, 1924 (No. 10 of 1924), ss. 31, 34 - Courts (Supplemental Provisions) Act, 1961 (No. 39 of 1961), s. 12 - Constitution of Ireland, Articles 34, 50.

Habeas Corpus.

On the 6th-8th March, 1967, the prosecutor was tried on indictment in the Central Criminal Court (Butler J.) with having committed the offence of office-breaking contrary to s. 26 (1) of the Larceny Act, 1916. Having been found guilty of the offence, he was sentenced by the trial judge on the 9th March to seven years penal servitude with a proviso allowing for the suspension of the last four years of the sentence in the event of the prosecutor observing prison discipline. The terms of the warrant in execution issued by the Central Criminal Court, referring to the description of the sentence contained in the order of that court, are stated at p. 407, post. The prosecutor was imprisoned in Mountjoy Prison on foot of the warrant of the Central Criminal Court but on the 10th March he was transferred to Portlaoise Prison pursuant to an order of the Minister for Justice; the respondent Edmond J. Kelly was the Governor of Portlaoise Prison. On the 11th May the trial judge refused to grant a certificate that the case was one fit for appeal and on the same day the prosecutor duly served notice of his appeal from such refusal to the Court of Criminal Appeal. On the 12th December the prosecutor obtained a conditional order of habeas corpus in the High Court (Kenny J.) and cause was shown by the respondents by filing affidavits. On the 22nd December the prosecutor served notice of his motion to have the conditional order made absolute, notwithstanding the cause shown.

On the 28th February, 1968, the prosecutor gave notice in the prescribed form of the abandonment of his appeal to the Court of Criminal Appeal but on the 14th March that court (FitzGerald, McLoughlin and Murnaghan JJ.) purported to dismiss his application for leave to appeal against conviction and to direct the substitution of four years penal servitude simpliciterfor the sentence imposed by the trial judge; a warrant in execution was issued by the Court of Criminal Appeal on the 14th March committing the prosecutor to Portlaoise Prison to serve the substituted sentence. The respondents then showed further cause in the habeas corpus proceedings by relying primarily upon the warrant of the Court of Criminal Appeal to justify the prosecutor's detention.

Article 34, ss. 1 and 2, of the Constitution of Ireland provides as follows:—

"1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

2. The Courts shall comprise Courts of First Instance and a Court of Final Appeal."

The prosecutor's motion to have the conditional order of habeas corpus made absolute, notwithstanding the cause shown by the respondents, was heard in the High Court (Henchy J.) on the 2nd, 3rd and 4th April, 1968.

The respondents appealed to the Supreme Court from the judgment and order of the High Court.

The prosecutor was convicted in the Central Criminal Court of an offence contrary to s. 26 (1) of the Larceny Act, 1916, and he was sentenced by the trial judge to seven years penal servitude with a proviso enabling the last four years of the sentence to be suspended if the prosecutor observed prison discipline. The order of the Central Criminal Court and its warrant in execution described the sentence in such terms that the suspension of the balance of the sentence appeared to depend upon a decision of the prison authorities. The trial judge refused to grant a certificate of leave to appeal against the conviction and sentence and the prosecutor appealed to the Court of Criminal Appeal from that refusal. The prosecutor then obtained a conditional order of habeas corpus from the High Court; subsequently he gave notice of the abandonment of his appeal to the Court of Criminal Appeal but that court, nevertheless, purported to hear the appeal and, having varied the sentence to one of four years penal servitude, issued its own warrant in execution to give effect to the altered sentence. At the hearing of the prosecutor's motion to have the conditional order of habeas corpus made absolute, notwithstanding the cause shown by the respondents, it was

Held by Henchy J., in making the order absolute, 1, that the sentence of penal servitude was not inconsistent with any of the provisions of the Constitution.

2. That the warrant issued by the Court of Criminal Appeal was ineffective since that court had no jurisdiction in the matter after it had been given due notice of the abandonment of the appeal.

3. That, accordingly, it was unnecessary to rule upon the question of whether the establishment of a court of criminal appeal was in conflict with any of the provisions of the Constitution.

4. That the warrant of the Central Criminal Court was ineffective as it was based upon an order which allowed persons whose function was outside the administration of justice to determine the duration of the sentence to be served by the prosecutor, contrary to the provisions of Article 34, s.1, of the Constitution.

Deaton v. The Attorney General [1963] I.R. 170 applied.

On appeal by the respondents from the judgment and order of the High Court it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh, Walsh, Budd and Teevan JJ.), in allowing the appeal, 1, that the warrant of the Court of Criminal Appeal was ineffective for the reasons given by Henchy J.

2. That, on examination of the transcript, it was clear that the sentence pronounced by the trial judge in the Central Criminal Court reserved to him alone the determination of the length of sentence to be served by the prosecutor; and that, accordingly, the sentence was a lawful one which was not in conflict with the provisions of the Constitution.

3. That the prosecutor should be re-arrested on foot of a fresh warrant to be drawn in accordance with the sentence in fact pronounced by the trial judge.

Cur. adv. vult.

Henchy J. :—

Patrick Woods (whom I shall call the prisoner) was convicted by a jury in the Central Criminal Court and sentenced on the 9th March, 1967. The charge was office-breaking and larceny, contrary to s. 26 (1) of the Larceny Act, 1916. He was sentenced"to be kept to penal servitude for a period of seven years but upon the completion of 36 months of such sentence order that the residue of such sentence be suspended provided the accused has obeyed prison discipline and enters into a bond himself in the sum of £500 upon the conditions that he will keep the peace and be of good behaviour towards all the People of Ireland for the residue of the sentence." Having got an enlargement of time within which to apply to the trial judge for a certificate giving leave to appeal against conviction and sentence, he applied to the trial judge for such certificate on the 11th May, 1967, and the application was refused. On the same day he served a notice of application for leave to appeal to the Court of Criminal Appeal against such refusal.

In the meantime, upon his conviction and sentence, the prisoner had been lodged in Mountjoy Prison on a warrant made out on foot of the order of the Central Criminal Court. On the 10th May, 1967, the Minister for Justice, in exercise of his statutory powers in that behalf, made an order transferring the prisoner to Portlaoise Prison. He is still being detained in that prison. On the 12th December, 1967, he applied to and obtained from Mr. Justice Kenny a conditional order of habeas corpus on the ground that the warrant of the Central Criminal Court was bad in law and contrary to the Constitution. A notice showing cause was given on behalf of the Governor of Portlaoise Prison and the Attorney General on the 20th December, 1967. The prisoner then served a notice of motion dated the 22nd December, 1967, to have the conditional order made absolute.

The next step was taken by the prisoner. He abandoned his appeal to the Court of Criminal Appeal by a notice of abandonment dated the 28th February, 1968. This he was entitled to do under Order 86, r. 24, of the Rules of the Superior Courts, 1962. If the previous practice of the Court of Criminal Appeal had prevailed, that would have been the end of the appeal except for a formal ruling by that court. The prisoner need not have come to court and need not have made any further submissions to the court. However, as appears from the file of the Court of Criminal Appeal, the assistant registrar of the court wrote on the 11th March, 1968, to the prisoner as follows:—"Your Notice of Abandonment dated 28th February, 1968, has been received in this Office. The matter will be listed for ruling on the Notice of Abandonment on Wednesday, the 13th March at 11 a.m. I am informed that the Attorney General may oppose the dismissal of your application for leave to appeal on foot of the Notice of Abandonment. In these circumstances I am requesting the Governor to make arrangements to bring you before the Court of Criminal Appeal on Wednesday next, if you so wish, to move the dismissal in person." In the light of subsequent events, the intervention of...