State (Pender) v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: McWilliamJ.
• Judgment Date: 27 August 1976
• Neutral Citation: 1976 WJSC-HC 1253
• Date: 27 August 1976
• Court: High Court

1976 WJSC-HC 1253

THE HIGH COURT

230 SS 1976

State (PENDER) v. GOVERNOR OF MOUNTJOY PRISON

THE STATE (GERARD PENDER)

.v.

THE GOVERNOR OF MOUNTJOYPRISON

1 27th August 1976. McWilliamJ.

2 This matter comes before me on an application by the Prosecutor for an Order of Habeas Corpus directed to the Respondent who certified on the 10th day of August, 1976, that he was detaining the Prosecutor pursuant to a warrant of the Central Criminal Court dated 28th July, 1976, and a Committal Warrant of the Metropolitan District Court dated 5th August,1976.

3 I must deal with this application on the basis of the warrants which have been relied upon by the State but the history of the case is complicated and it is impossible to deal with the application at all without trying to understand this history which is set out in a somewhat confusing manner in the affidavit of the Prosecutor.

4 On 18th March, 1976, the Prosecutor was returned for trial in respect of three separate sets of offences identified as Pearse Street Charge Sheet No. 258, Rathmines Charge Sheet No. 48, and Crumlin Charge Sheet No.10.

5 On 19th March, 1976, the Prosecutor was returned for trial in respect of four offences on Dundrum Charge Sheet No. 156.

6 The warrant of the Central Criminal Court which is relied upon by the State is dated 28th July, 1976, and is printed at the foot of Form P.25 entitled "A Return of Prisoners under Rule, Order or Sentence". As amended, it reads as follows:-

"To the Governor of Mountjoy Prison, Dublin, Receive into your custody the body of the above-named person mentioned at a Central Criminal Court held at the Four Courts in the County of the City of Dublin on the 22nd day of June, 1976, and following days, before Mr. Justice Gannon and cause the said person so mentioned to abide the Order opposite to his name, and transmit above returns and this warrant to the Secretary, Department of Justice."

7 The body of the return shows that the Prosecutor was brought before the Court on Bill 39c/76 accused of the crimes of conspiracy contrary to Common Law, Burglary contrary to Section 25(1) of the Larceny Act, 1976, and Robbery contrary to Section 23 of the Larceny Act, 1916, as amended by Section 25 of the Criminal Law (Jurisdiction) Act, 1976, and that the Order made was that the case was adjourned unless he should obtain bail as allowed by the District Court Order dated 19th March, 1976. It alsoappears from this form that the Prosecutor was not arraigned.

8 It appears from paragraph 3 of the Prosecutor's affidavit that an indictment containing one count was submitted to the Circuit Court on 3rd June, 1976, and that, on this date, the trial of the Prosecutor was transferred to the Central Criminal Court. It appears from the Order of Mr. Justice Gannon of 21st July, 1976, that this Indictment was No. 3561/76. This indictment is in manuscript and a copy is on thefile.

9 The Order of Mr. Justice Gannon also shows that a ten count indictment No. 3502/76 was filed on 8th July, 1976, and a twelve count indictment No. 3503/76 was filed on 14th July, 1976, on which last indictment the Prosecutor was arraigned. A plea in bar having been entered to each of the said counts and a legal argument having ensued, the Prosecutor was not put in charge of the jury, and, on an adjournment of the case to 21st July, 1976, a nolle prosequi was entered by the State in respect of all three indictments, and the Prosecutor was discharged of and from each of the three indictments.

10 The Order mentioned in the Return of Prisoners directed the Prosecutor to remain in custody unless he should obtain bail as allowed by the District Court Order of 19th March, 1976, and the reference in this Return of Prisoners is toBill No. 39c/76. Accordingly, I am satisfied that the offences before the Central Criminal Court on 28th July, 1976, were the offences set out in Dundrum Charge Sheet No. 156 on which the Prosecutor was returned for trial on 19th March, 1976.

11 From a draft affidavit handed into Court on 4th August, 1976, it appears that the Prosecutor expected to obtain the bail required by the Return for Trial of 19th March, 1976, and the Order of Mr. Justice Gannon of 28th July, 1976. It does not appear...