State (Walsh) v Maguire

JurisdictionIreland
JudgeO'Higgins C.J.,Henchy J.,GRIFFIN J
Judgment Date19 February 1979
Neutral Citation1978 WJSC-SC 2369
CourtSupreme Court
Docket Number198-1978,[1978 No. 111 S.S.]
Date19 February 1979

1978 WJSC-SC 2369

THE SUPREME COURT

O'Higgins C.J.

Henchy J.

Griffin J.

198-1978
STATE (WALSH) v. MAGUIRE
THE STATE (WALSH)
v.
DISTRICT JUSTICE MAGUIRE
1

JUDGMENT delivered the 19th February 1979by O'Higgins C.J.

2

I have had the opportunity of reading the Judgment about to be delivered by Mr Justice Henchy. In the course of this Judgment he deals with the delay on the part of the Prosecutor in bringing this application for certiorari, the failure to observe the provisions of Order 84 Rule 10 and the manner in which, in the circumstances of a case such as this, such failure should be regarded by the Court. I wish to say that I agree with what he says in this respect. For that reason alone this application and appeal, in my view, should be dismissed.

3

This application for a conditional order of certiorari does, nevertheless, raise a question of particular importance in the present situation in our country when a Special Criminal Court is operating. For that reason Ithought it proper to ask for the assistance of counsel on behalf of the Director of Public Prosecutions to enable this matter to be argued fully inter Partes. I wish to acknowledge on behalf of the Court the ready co-operation of the director and the help given by counsel representing him. Again, by reason of the importance in current national circumstances of the question raised I think it proper that the opinion and the Judgment of this Court should deal with the merits of the Prosecutor's application despite his delay in bringing these proceedings. To that end I now turn my attention in this Judgment.

4

It is first of all necessary to state certain facts. At 3.30 p.m. on the 18th March 1976 the Prosecutor herein was charged at Listowel Garda Station with having been involved in an armed robbery at Moyvane Post Office two days previously, on the 16th March 1976. Sergeant Groarke, who charged him with this offence, stated that he then arrested him and gave him the usual and proper caution. The Prosecutor was at that time in Listowel Garda Station because he had been previously arrested anddetainedpursuant to the provisions of Section 30 of the Offences Against the State Act 1939. It appears that a short while before he had been so charged he had been conveyed in a motor car to a place some distance away so that he could point out to two Guards a particular house. Mr. Justice Costello who heard this application in the High Court took the view that this motor car journey ended the Prosector's detention under Section 30 and that, accordingly, when he was subsequently charged by Sergeant Groarke he was validly rearrested at the Garda Station. Because he formed this view Mr. Justice Costello concluded that the question raised by the Prosecutor in his application for certiorari, which question I will shortly set out in some detail, did not arise for consideration. For the reasons about to be stated by Mr. Justice Henchy in his Judgment I think Mr. Justice Costello was wrong in concluding that the motor car journey terminated the Prosecutor's detention under Section 30. It follows, in my view, that no rearrest of the Prosecutor in Listowel Garda Station took place. Being already under arrest hewas simply charged and cautioned by Sergeant Groarke. He was then brought before District Justice Maguire who sat specially for the purpose. Evidence of the charge, the purported arrest and caution having been given, the District Justice remanded the Prosecutor on bail and he was released. Subsequently the District Justice held a preliminary examination pursuant to the provisions of the Criminal Justice Act 1967 of the charge brought against the Prosecutor. On the 14th July 1977 the District Justice returned the Prosecutor for trial on that charge to the Special Criminal Court.

5

In these proceedings the Prosecutor contends that this return for trial was defective and that it was not made in accordance with law and should be quashed. He relies on the provisions of Section 30(4) of the Offences Against the State Act 1939and says that as he was at the time of being charged under detention pursuant to the Section he could not lawfully be charged in the Garda Station. He contends that he could only be charged in the District Court or the Special Criminal Court. Heaccordingly asserts that the subsequent proceedings brought against him, including the return for trial were made without lawful authority and should therefore be quashed.

6

The sub-section in question provides as follows:

"(4) A person detained under the next preceding sub-section of this Section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence or be released by direction of an officer of the Garda Slochana, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section."

7

In support of his submission the Prosecutor through his counsel relied on the decision of the President of the High Court, Mr. Justice Finlay, in State (Brennan) v. District Justice Mahon, at present unreported, in which Judgment was given on the 13th February 1978. This was a decision by the President on an application for certiorari in which the facts were similar to the facts of the present case. The only difference was that Brennan was in custody under the provisions of Section 2 of the Emergency Powers Act 1976, which was then in operation, and not under theprovisions of Section 30 of the Offences Against the State Act 1939. Section 2 sub-section (4) of the Emergency Powers Act 1976provided as follows:

"A person in custody under sub-section (3) of this Section may at any time during such custody be charged before the District Court or a special court established under Article 38.3.1 of the Constitution with an offence or be released by direction of a member of the Garda Slochdna not below the rank of Superintendent and shall if not so charged or released be released at the expiration of the custody."

8

Brennan had been charged in the Garda Station and later brought before the District Justice. He was not again charged nor were the charges read out but evidence of his arrest and charge was given. Having been remanded in custody he was later, following a preliminary examination, returned for trial. The President granted certiorari in respect of the return for trial on the basis that as Brennan had been charged in the Garda Station and not in the District Court the District Justice had no jurisdiction to enter on the preliminary examination or to orderhisreturn for trial. The question now arises as to whether this decision was correct. As the facts are similar and the wording of the two sub-sections for all purposes the same, it follows that if the learned President' s decision is correct then its reasoning would cover the facts of the present case.

9

At this stage I think it might be useful if I made a few general observations on the procedures which, in my view, apply when a person is involved in a criminal investigation and suspected of having committed an offence. I have in mind in this respect indictable offences. A person so involved or suspected is usually charged by a member of the Garda Slochana with having committed the offence in question. This charge even if couched in legal and formal terms, is in itself no more than a verbal accusation of having committed the offence. This charge or accusation generally precedes an arrest. It is, of course, an explanation of and a justification for the arrest. It may be, however, that the arrest takes place first - if so, again, the person so arrested must be told why he has beenarrested and this is done by charging him with the offence for which he has been arrested. The charge itself does not affect the accused person' s legal rights - if it is not accompanied by an arrest the person concerned continues to have whatever rights the law affords him to be exercised by him as he wishes. The arrest is, however, a different matter. As it constitutes an immediate interference with the personal right of liberty it must be justified immediately as being lawful. To this end there are settled principles of the common law and in addition clear statutory provisions. Where a person has been charged with an offence and arrested he must, if not released on bail, be brought without delay before a Justice of the District Court or a Peace Commissioner (See Section 15 of the Criminal Justice Act 1951replacing similar provisions of Section 19 Courts of Justice Act 1928). If a person has been arrested on suspicion without charge he must also be charged and brought before the appropriate Justice or Peace Commissioner. (See Dunne v. Clinton 1930 I. R. 366). Having been so brought before a Court and the arrestjustified by the charge, the person involved as an accused person is remanded by order of the Court either on bail or in custody. Section 5(1) of the Criminal Procedure Act 1967provides for the procedure following remand:

"5 (1) Where an accused person is before the District Court charged with an indictable offence then, unless the case is being tried summarily or the accused pleads guilty, the Justice shall conduct a preliminary examination of the charge in accordance with the provisions of this Fart "

10

Section 8 of the same Act provides:

"8 (1) If the Justice is of opinion that there is a sufficient case to put the accused on trial for the offence with which he has been charged, he shall send him forward for trial."

11

It is in the light of the statutory provisions formerly contained in the Courts of Justice Act 1928and now incorporated in Section 15 of the 1951 Act and of the common law principles referred to in Dunne v. Clinton that the provisions of Section 30 of the Offences Against the State Act 1939should be considered. This Section authorises a member of the Garda SfocMna to arrest and...

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