State (Tynan) v Governor of Limerick Prison

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MURNAGHAN,MR. JUSTICE McLOUGHLIN
• Judgment Date: 12 December 1967
• Neutral Citation: 1965 WJSC-HC 1674
• Court: High Court
• Date: 12 December 1967

1965 WJSC-HC 1674

State (Tynan) v. Governor of Limerick Prison

THE STATE (RICHARD TYNAN)

v.

GOVERNOR, LIMERICK PRISON.

1 JUDGEMENT OF MR. JUSTICE MURNAGHAN- 12/12/1967.

2 The Prosecutor has moved this Court to make absolute a conditional order of Habeas Corpus, granted by the Supreme Court on 13th October 1967, notwithstanding the Cause Shown.

3 In support of his motion the Prosecutor confined himself to reading to this Court the affidavits of:-

4 1. Garda Oliver Moore

5 2. Superintendent E. McElwain

6 3. Inspector Richard Manning

7 4. Mark J. Walsh

8 5. Michael Kurphy

9 6. William Dunphy

10 7. Gerald Griffin

11 8. District Justice de Burca

12 and two letters, namely:

13 1. dated 10th December 1966 from the Prosecutor to District CourtClerk

14 2. dated 29th December 1966 from his solicitor to the DistrictJustice

15 He presented no argument except to submit that the affidavits which he had read bore out what he had put before the Supreme Court on theapplication (by way of appeal from the High Court) fox a conditional order, without ???query??? ??? what that was.

16 As regards the subject matter of the letters to which I have referred this Court was not informed by the Prosecutor as to whether or not any order of prohibition had in fact been applied for. It appears from the condition ???query??? ??? Precedent to the exorcise of the Justice's jurisdiction would have been already fulfilled and his adjudication might continue to final determination so long as the defendant had the opportunity to appear and participate in the hearing. If he chose not to do so he would adopt that course at his peril but would not oust the jurisdiction to determine the case. " The Pasage to which I wish to draw particular attention is ???query??? ??? "If he alone not to do so he would adopt that course at his peril" This ???query??? ??? has been Prount to the needed of the Prosecutor of he has ???query??? ??? that Judgement delivered as 24 February 1967.

17 This Court was not referred by the Prosecutor to what was referred to by the Prosecutor in paragraph 7 of his letter to the High Court as the "Shivnan Judgment".

18 The Prosecutor was represented in the District Court by Solicitor and Counsel. His defence as presented to that Court on 5th October 1966 was that he was in fact covered by insurance on the occasion in question and he produced what purported to be a current certificate of insurance to support his evidence to that effect. In the result it has been established, and of this the District Justice was satisfied, that the Prosecutor's policy of insurance had been cancelled over a month before the relevant date, and that, notwithstandinghis evidence to the contrary ho was not insured in respect of the driving by him of motor reg.no.212 YDE on 1st April 1966. Notwithstanding the fact that he was satisfied of the foregoing facts, in December 1966 the District Justice allowed four further adjournments, the adjournment of 3rd May being peremptorily to 7th June 1967. Of this fact the Prosecutor was notified by letters addressed to himself and/his solicitor on 4th May. The ???query??? ??? by was on of his knowledge of court practice and produce ???query??????. He did not so submit.

19 The Prosecutor relics on a telephone call made by him personally to Thurles Garda Station on 3rd June 1967 - about this there is some controversy on the affidavits/ Whether or not what was said on the telephones was brought to the attention of the District Justice, this Prosecutor and his solicitor ???query??? ??? to about ???query??? ??? from the course on 7th June 1967 the District justice, is the ???query?????? of this case justice was acting within his powers when he declined further to adjournments the bearing.

20 No appeal would appear to have been brought by the Prosecutor to the Circuit Court.

21 I take the view that the People when they enacted the Constitution did not intend to provide by way of habeas corpus an additional right of appeal to that given by law to persons convicted in the DistrictCourt.

22 The present application is completely devoid of merits

23 The Prosecutor was given an ample opportunity of presenting his defance to the District Court, Morely by phoning the Guards and saying that he is waiting to obtain a judgment in a certain case is not of itself/sufficient ground for the Prosecutor to rely on in support of a submission that theDistrict Justice must thereupon grant an adjournment. If this Court were to uphold that proposition chaos would be introduced into the legal system. The Prosecutor has not even seen fit to attempt to show this Court that the case to which he made reference would have assisted hisdefence.

24 The Prosecutor has totally failed to satisfy me that in any manner dictated by the requirement that justice should not only be done but should be seen to have been done he was prevented from making his defence in the District Court.

25 For these ???query??? ??? the appearance of ???query??? ??? that the ensure ???query??? ??? allowed and that ???query??? ??? by this Supreme Court should be discharged.

26 ???query?????? their court the Prosecutor was on the date ???query?????? said ???query??? ??? order was ???query??? ??? and submit he was released on trail being determined by this ???query??? ??? with the law.

27 JUDGMENT OF MR. JUSTICE McLOUGHLIN- 12/12/1967.

28 On 13th October 1967 the Prosecutor obtained from the Supreme Court a Conditional Order of Habeas Corpus in these terms:

29 "The ex parte Application on the part of the Prosecutor in the title hereof named pursuant to his letter of the 28th day of September 1967 directed to this Court for a Conditional Order of Habeas Corpus herein following upon the refusal of a similar application on his part in the High Court (The President) on the 27th day of September 1967 coming on to be moved before this Court this day by the Prosecutor in person (in custody from Limerick Prison) - said Application being deemed to have been opened to this Court on the receipt of the said letter andadjourned

30 Whereupon and upon reading the said letter the report of the Judgment of the learned President the said Order of refusal of the 27th day of September 1967 and the documents in said Order recited including the letter from the Prosecutor directed to the High Court And the Court not deeming it necessary to hear submissions from the Prosecutor on foot of said Application

31 The Court doth direct that the requirement herein of the Rules of Court (Rules of Superior Courts Order 84 Rule 3) for an Affidavit be dispensedwith

32 And IT IS ORDERED in lieu of the said Refusal that upon the ground set forth in paragraph 7 of the Prosecutor's said letter to the High Court (whereby it is alleged that the Prosecutor was prevented from making his defence in the District Court proceedings herein) an Order of Habeas Corpus ad Subjiciendum do issue directed to the Prison Governor in the title hereof mentioned to have the said Prosecutor before the High Court together with the day and cause of his being taken and detained by whatsoever name he may be called therein to undergo and receive all and singular such matters and things as the High Court shall then and there consider of concerning him in this behalf UNLESS CAUSE SHOWN in the High Court to the contrary within ten days"after service of this Order as hereinafter directed (or within such enlarged time as the High Court may allow)

33 And IT IS ORDERED that this Order be served upon

34 2 the said Prison Governor

35 (2) the District Court Clerk for the District Court Area of Thurles (for and on behalf of the District Justice for said Area, and

36 (3) the Chief State Solicitor for and on behalf of Superintendent E.M. McElwain of the Garda Siochana Thurles

37 And IT IS FURTHER ORDERED that the Prosecutor shall be at...