State (Trimbole) v The Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 26 March 1985
• Docket Number: [1984 No. 659 SS]
• Date: 26 March 1985

[1985]	550
1 I.R.

The State (Trimbole) v. The Governor of Mountjoy Prison

The State (at the Prosecution of Robert Trimbole otherwise known as Michael Hanbury)

and

The Governor of Mountjoy Prison

[1984 No. 659 SS]

High Court

Supreme Court

Constitution - Personal rights - Liberty - Deliberate violation - Invasion by persons on behalf of the Executive - Planned results of such invasion - Inherent jurisdiction - Abuse of process - Scheme of courts within Constitution.

Practice and procedure - Appeal to Supreme Court - Stay on order of High Court - Power of appellate court - Constitution - Liberty - High Court order releasing from detention - Exercise of appellate powers in conflict with Constitution.

Criminal law - Arrest - Suspicion - Arrest without proper suspicion - Detention - Illegal arrest and detention - Legality of subsequent extradition proceedings - Extradition Act, 1965 (Part II) (No. 19) Order, 1984, (S.I. No. 271) - Extradition Act, 1965 (No. 17) - Constitution of Ireland, 1937, Article 40.

At 2.00 p.m. on October 25th, 1984, the prosecutor was arrested in purported pursuance of s. 30 of the Offences Against the State Act, 1939. Early next afternoon the detention period was extended by another twenty-four hours. At about the same time (1.15 p.m.) the Government made an order applying Part II of the Extradition Act, 1965, in relation to the Commonwealth of Australia as and from that date. That same afternoon the prosecutor applied to the High Court to have the legality of his detention ascertained, which hearing was fixed for 7.00 p.m. that evening. At 6.00 p.m. a provisional warrant pursuant to s. 27 of the Extradition

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[1985]	The State (Trimbole) v. The Governor of Mountjoy Prison	551
1 I.R.	H.C.

Act, 1965, was issued by District Justice Ballagh. At the High Court hearing Egan J. found that no genuine suspicion that the prosecutor had committed a firearms offence could have been formed by the arresting Garda; that the arrest and detention were illegal and accordingly ordered the prosecutor's release. A short while later, at approximately 10.00 p.m. outside the immediate precincts of the Four Courts the prosecutor was arrested on foot of the provisional warrant just issued by District Justice Ballagh. He was then brought to the District Court and remanded in custody

On November 2nd, 1984, a habeas corpus application challenging the remand orders was refused by Egan J.

On November 8th the Minister for Justice addressed an order to District Justice Kotsonouris pursuant to s. 26 of the Extradition Act, 1965, signifying that he had received from the Commonwealth of Australia a request for the extradition of the prosecutor. Application was then made on November 17th to District Justice Kotsonouris for orders committing the prosecutor to prison, there to await the order for his extradition or until the High Court or Supreme Court should order his release.

On November 4th the prosecutor applied to the High Court pursuant to Article 40 of the Constitution for an inquiry as to the legality of his detention, at the end of which hearing it was

Held by Egan J., that the object of the arrest, pursuant to s. 30 of the Offences Against the State Act, 1939, of the prosecutor was to ensure that he would be available for the provisional warrant arrest; that such arrest amounted to a deliberate and conscious violation of constitutional rights; that there were no extraordinary excusing circumstances; that his detention in subsequent proceedings was tainted by the illegality of his original arrest and accordingly the prosecutor was to be immediately released.

The respondent then applied to the Supreme Court for a stay on the order of the High Court pending appeal.

Held by the Supreme Court (Finlay C.J., Walsh, Henchy, Hederman and McCarthy JJ.) that whatever powers the court may have to make its ordinary appellate jurisdiction effective, such powers would not be exercised in a manner inconsistent with the Constitution.

On appeal by the respondent from the order of the High Court it was

Held by the Supreme Court (Finlay C.J., Henchy, Griffin, Hederman and McCarthy JJ.) in dismissing the appeal and affirming the judgment of Egan J., 1, the courts have not only an inherent jurisdiction but a positive duty (a) to protect persons against the invasion of their constitutional rights; (b) if invasion has occurred, to restore as far as possible the person so damaged to the position in which he would have been if his rights had not been invaded; and (c) to ensure as far as possible that persons acting on behalf of the executive who consciously and deliberately violate the constitutional rights of citizens do not for themselves or their superiors obtain the planned results of that invasion.

Principles in The State (Quinn) v. Ryan[1965] I.R. 70; The People (Attorney General) v.O'Brien[1965] I.R. 142 and The People v. Lynch[1982] I.R. 64 affirmed.

2. The well recognised jurisdiction of the courts at common law to prevent an abuse of their own process is amplified and reinforced by the position of the courts within the framework of the Constitution and a direct duty arises to prevent such abuse of their process.

R. v. Bow Street Magistrates, ex p. Mackeson (1981) 75 Cr. App. R. 24 considered.

Cases mentioned in this report:—

In re Nielsen [1984] A.C. 606; [1984] 2 W.L.R. 737; [1984] 2 All E.R. 81.

The State (Furlong) v. Kelly [1971] I.R. 132.

Wyatt v. McLoughlin [1974] I.R. 378.

Wilson v. Sheehan [1979] I.R. 423.

R. v. Brailsford [1905] 2 K.B. 730.

Cahill v. Sutton [1980] I.R. 269.

The State (McFadden) v. Governor of Mountjoy Prison [1984] I.L.R.M. 113.

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[1985]	The State (Trimbole) v. The Governor of Mountjoy Prison	552
1 I.R.	H.C.

The People (A.G.) v. O'Brien [1965] I.R. 142.

The People v. Madden [1977] I.R. 336; (1976) 111 I.L.T.R. 117.

The People v. Lynch [1982] I.R. 64; [1981] I.L.R.M. 389.

D.P.P. v. Joyce [1985] I.L.R.M. 206.

The State (Quinn) v. Ryan [1965] I.R. 70; (1964) 100 I.L.T.R. 105.

Application of Woods [1970] I.R. 154.

The State (Browne) v. Feran [1967] I.R. 147.

In re Singer (No. 2) (1964) 98 I.L.T.R. 112.

Egan v. Macready [1921] 1 I.R. 265; (1921) 55 I.L.T.R. 197.

The State (McDonagh) v. Frawley [1978] I.R. 131.

Application of Zwann [1981] I.R. 395; [1981] I.L.R.M. 379.

The State (Rogers) v. Galvin [1983] I.R. 249; [1983] I.L.R.M. 149.

In re Ó Laighléis ó laighléis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.

The People v. Kehoe [1985] I.R. 444.

R. v. Bow Street Magistrates, ex parte Mackeson (1981) 75 Cr. App. R. 24.

The People v. McCann, Pringle and O'Shea (1984) 2 Frewen 57.

R. v. Hartley [1978] 2 N.Z.L.R. 199.

Terry v. Ohio (1968) 392 U.S. 1.

Re Brian Francis (1963) 97 I.L.T.R. 160.

Robert Trimbole v. Commonwealth of Australia (1984) 155 C.L.R. 186.

Stone v. State of California (1964) 376 U.S. 483.

The People v. O'Loughlin [1979] I.R. 85; (1978) 113 I.L.T.R. 109.

The People v. Walsh [1980] I.R. 294.

The People v. Farrell [1978] I.R. 13.

The People v. Shaw [1982] I.R. 1.

Habeas Corpus Proceedings.

The facts are as appear in the judgments of Egan J. and Finlay C.J.

Article 40, s. 4 of the Constitution of Ireland, 1937, provides:—

"1 No citizen shall be deprived of his personal liberty save in accordance with law.

2 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and 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

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[1985]	The State (Trimbole) v. The Governor of Mountjoy Prison	553
1 I.R.	Egan J.	H.C.

Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law

3 Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it.

4 The High Court before which the body of a person alleged to be unlawfully detained is to be produced in pursuance of an order in that behalf made under this section shall, if the President of the High Court or, if he is not available, the senior judge of that Court who is available so directs in respect of any particular case, consist of three judges and shall, in every other case, consist of one judge only."

The matter was heard by Egan J. on the 4th November and 8th December, 1984.

S. MacBride S.C. , P. MacEntee S.C. and Clive Nicholls Q.C. of the Bar of England and Wales (with them J.G. Danaher ) for the prosecutor.

T.K. Liston S.C. , E.F. Comyn S.C. (with them Susan Denham ) for the respondent.

Cur. adv. vult.

Egan J.

I consider the following sequence of events to be relevant:—

1. Some short time after 2 p.m. on the 25th October, 1984, the prosecutor was arrested by Detetive Inspector Cormac Gordon in purported

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[1985] The State (Trimbole) v.

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