State (Rogers) v Galvin

• Jurisdiction: Ireland
• Judge: Henchy J,
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-SC 2618
• Court: Supreme Court
• Docket Number: [S.C. No. 300 of 1980]
• Date: 01 January 1983

STATE (ROGERS) v. GALVIN

THE STATE (ROGERS)

v.

SUPERINTENDENT GALVIN

1982 WJSC-SC 2618

No. 459 S.S/1980

No. 300/1980

THE SUPREME COURT

1 Judgment of Henchy J, delivered the 2nd July 1982[NEM.DISS]

2 Peter Rogers ("the prisoner") appeared before the Special Criminal Court on the morning of Saturday the 18 October 1980. This exceptional sitting on a Saturday morning was to be a preliminary and purely formal sitting. It was for the purpose of charging the prisoner with the capital murder of a member of the Garda Síochána and with an offence contrary to s. 15 of the Firearms Act, 1925(as amended). It was obviously the expectation of the prosecution that, once evidence of arrest and charge had been given, the prisoner would be remanded in custody. The prisoner was represented by solicitor and senior counsel, the prosecution by the Deputy Assistant Chief State Solicitor. The hearing was the sort of routine but necessary step in the prosecution that would normally be over and done with in a matter of minutes.

3 One can easily imagine, therefore, the stir that was caused when, after Superintendent Galvin had given formal evidence of arrest, counsel for the prisoner applied to the presiding Judge, who happened to be a Judge of the High Court, to sit on his own as a Judge of the High Court, to hear an application on behalf of the prisoner for an order of habeas corpus under Art. 4O, s. 4, subs. 2, of the Constitution, on the ground that the prisoner's arrest and consequent detention were unlawful. The Judge acceded to the application for such a hearing.

4 Parol evidence was then given by the prisoner's solicitor and by the prisoner, and they were each cross-examined by the solicitor who was presenting the case for the prosecution. Then the Judge asked the solicitor for the prosecution (that is, for the Director of Public Prosecutions) if he wished to call any evidence in the habeas corpus application. He called Superintendent Galvin, in whose custody the prisoner was then claimed to be by the prosecution. After the Superintendent had been examined and cross-examined, the Judge, without giving the Superintendent, who had no separate legal representation, any opportunity of stating in writing his grounds for the detention of the prisoner, forthwith ordered the absolute release of the prisoner. That is to say, instead of granting under Art. 40, s. 4, subs. 2, what is commonly called a conditional order of habeas corpus, he granted an absolute order of habeas corpus. The question arising in this appeal by the Superintendent is whether the Judge had jurisdiction to make such an order.

5 There is no doubt that, once the complaint of unlawful detention had been made, the Judge was bound to enquire forthwith into the lawfulness of the detention. Art. 40, s, 4 subs. 2, as well as making the enquiry mandatory on the Judge in question, provides that he

6 "may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving...