State (Walsh) v Maguire

• Jurisdiction: Ireland
• Judge: MR. JUSTICE COSTELLO
• Judgment Date: 10 March 1978
• Neutral Citation: 1978 WJSC-HC 1008
• Court: High Court
• Docket Number: No. 111SS/1978
• Date: 10 March 1978

1978 WJSC-HC 1008

THE HIGH COURT

No. 111SS/1978

THE STATE (WALSH) v. MAGUIRE

Affirmed Supreme 19.2.79

BETWEEN:

THE STATE (AT THE PROSECUTION OF JEREMIAH WALSH)

Prosecutor

.v.

DISTRICT JUSTICE CYRIL MAGUIRE

Respondent

1 JUDGMENT OF MR. JUSTICE COSTELLODELIVERED THE 10th OF MARCH 1978.

2 This is an application for a Conditional Order of Certiorari. It relates to the return for trial to the Special Criminal Court by an Order of the District Court of the 14th of July 1977. The return is in respect of an offence under Section 23 of the Larceny Act 1916. The issue in the case turns on the circumstances in which the Prosecutor was charged. It is alleged on his behalf that he was not properly before the District Court and that accordingly the Order made under the Criminal Procedure Act 1967was bad. In support of thisapplication the Prosecutor relies on the Judgment of the Learned President of the High Court (13/2/78) in the case of the State (Brennan) .v. McMahon. Judgment was delivered on the 13th of February 1978. I think it would be helpful if I commenced this Judgment by referring to the principles of law established by the Learned President in the Judgment in Brennan's case. Brennan's case was a case which concerned Section 2 of the Emergency Powers Act 1976. This Section differed in certain particulars which are not relevant to these proceedings to Section 30 of the 1939 Act but the sub-section considered by the Learned President was similar to the sub-section which I have to consider in the present case. Having analysed Section 2 of the 1976 Act the Judgment of the President stated as follows, "it is not lawful to charge a person who has been arrested pursuant to the Provisions of Section 2 of the Emergency Powers Act 1976 otherwise than in the District Court or in a Special Court and specifically it is not lawful to charge him in a Garda Station or other place where he may be detained." Having analysed theprovisions of Section 2, the President considered the legal situation arising in relation to the particular facts of the case before him and the Judgment continues: "Under the Section of the Act which I have just quoted it is clearly not sufficient in order to give the District Justice power or jurisdiction to conduct a preliminary examination, that an accused person should be before the District Court but he must be before the District Court charged with an indictable offence. This can in my view only mean that he must be validly and lawfully charged with an indictable offence before the District Court can enter upon the conduct of the preliminary examination." What the applicant in the case before me urges is that the facts of the case which I have to consider are similar to those in the Brennan case and it is suggested that as the Applicant in this case was charged in a Garda Station it would follow that the District Justice had no jurisdiction to make the return for trial which he made in this case. I now turn to deal with the facts of this case.

3 The Applicant swore an affidavit on the 25th ofFebruary and in this affidavit there are exhibited the matters contained in what is colloquially called the book of evidence. I was referred to the book of evidence in the course of the...