The State (Brien) v Kelly

• Jurisdiction: Ireland
• Judgment Date: 09 May 1970
• Date: 09 May 1970
• Docket Number: [1966. No. 159 SS.]
• Court: Supreme Court

Supreme Court

[1966. No. 159 SS.]

The State (Brien) v. Kelly

THE STATE (at the Prosecution of CHRISTOPHER BRIEN)

and

EDMOND J. KELLY and Others

Criminal Law - Arraignment - Accused pleading guilty to some charges in District Court - Whether other charges may be preferred - Plea - Accused signing plea of guilty in blank - Relevant charges inserted subsequently - Detention - Youthful offender - Report of visiting committee - Order transferring offender to prison - Order made in reliance upon matter not contained in report - Prevention of Crime Act, 1908 (8 Edw. 7, c. 59), s. 7 -Criminal Justice Act, 1951 (No. 2 of 1951), ss. 3, 21.

Circuit Court - Records - Court of record - Use of records to resolve ambiguity - Courts (Supplemental Provisions) Act, 1961 (No. 39 of 1961), s. 21.

District Court - Records - Minute book or charge sheet - Amendment of charges - Whether intermediate directions of District Justice to be recorded - District Court Rules, 1948 (S.R. & O. No. 431 of 1947), r. 84.

Appeal from the High Court.

The prosecutor signed a written plea of guilty (Form No. 194) in the District Court on the 14th March, 1966, and on that date District Justice M. J. C. Keane made an order, pursuant to s. 3, sub-s. 2(b) (ii), of the Criminal Justice Act, 1951, directing that the prosecutor be sent forward for trial1 to the next sitting of the Circuit Court in Wicklow. The prosecutor was sentenced by His Honour Judge Deale on the 22nd April, 1966, and the relevant entries on the warrant of detention (Form P.25) issued by the Circuit Court were as follows:—

Crime	Sentence	Whether pleaded guilty or not guilty
Count 1. Rape. Count 2. Buggery contrary to . s. 61 of the Offences against the Person Act, 1861. Count No. 3. Assault with intent to commit felony contrary to s. 38 of the Offences against the Person Act, 1861.	Three years detention in St. Patrick's Institution in respect of Counts one and two. Two years detention in St. Patrick's Institution in respect of Count No. 3. Both sentences to run concurrently and to date from 22nd Feb., 1966.	Guilty in respect of each count.

On the 17th August, 1966, the visiting committee of St. Patrick's Institution, where the prosecutor was detained, made the following report:—

"St. Patricks, North Circular Road, Dublin 7.

Report of Visiting Committee under Section 7, Prevention of Crime Act, 1908.

We, the members of the Visiting Committee, met to-day at St. Patrick's Institution to consider reports from the Governor and Staff in the cases of the following inmates:—

_________________	_________________
_________________	_________________
_________________	_________________
_________________	Christopher Brien
_________________	_________________

Having interviewed the inmates and considered all the circumstances, we report that the said inmates are exercising a bad influence on the other inmates of the Institution.

Dermot J. O'Flynn, Chairman. John A. Meehan, Member. J. L. Campion, Member. J. Maher, Member.

17th August, 1966."

On the 18th August the following order was made by the Minister for Justice:—

"Department of Justice Upper Merrion Street,

Dublin 2.

The Visiting Committee of St. Patrick's Institution having reported to the Minister for Justice, by communication dated the 17th day of August, 1966, that Christopher Brien who was by warrant dated the 22nd April, 1966, issued by Wicklow Circuit Court directed to be detained in St. Patrick's Institution for a period of three years from the 22nd day of February, 1966, was exercising a bad influence on the other inmates of the Institution and was incorrigible, the Minister for Justice, in exercise of the powers conferred on him2 by Section 7 of the Prevention of Crime

Act, 1908, Section 17 of the Criminal Justice Administration Act, 1914, and the Criminal Justice Act, 1960, commutes the unexpired residue of the said period of detention to a term of imprisonment without hard labour expiring on the 21st day of February, 1969, and directs that the said Christopher Brien be committed to and detained in Portlaoise Prison until the said 21st day of February, 1969.

Dated this 18th day of August, 1966.

For the Minister for Justice.

• (Signed) S. Ó Buachalla ó buachalla.

A person authorised in this behalf

by the said Minister."

At 9 a.m. on the 18th August, 1966, the prosecutor was removed from St. Patrick's Institution and taken to Portlaoise Prison. On the 11th November the prosecutor obtained conditional orders of certiorari and habeas corpus from the High Court (O'Keeffe P.) and those orders were served on Edmond J. Kelly (the Governor of Portlaoise Prison), District Justice M. J. C. Keane, His Honour Judge K. E. L. Deale, the Attorney General and the Minister for Justice who showed cause by filing affidavits. In one of the affidavits so filed it was stated (a) that the said report3 of the visiting committee was received by the Minister for Justice on the 18th August and (b) that subsequently the Minister had received a similar report (also dated the 17th August) containing the names of the same detainees (but in a different order) and signed by the same members of the visiting committee. The second report, like the first report, stated that the named detainees were exercising a bad influence, and did not state that any of them were incorrigible.

The prosecutor's motion to have the conditional orders made absolute notwithstanding the cause shown by the respondents was heard on the 14th and 15th December and, on the 11th January, 1967, the High Court (Murnaghan, Henchy and Butler JJ.) allowed the cause shown by the respondents and discharged the conditional orders, having found that the said report of the visiting committee was the operative one. The prosecutor appealed to the Supreme Court from the judgment and order of the High Court.

Section 3 of the Criminal Justice Act, 1951, provided4 as follows:—

"(1) This section applies to all indictable offences except the

following—an offence under the Treason Act, 1939 (No. 10 of 1939), murder, attempt to murder, conspiracy to murder and piracy, including an offence by an accessory before or after the fact.

(2) Where, before or after taking or completing depositions,—

• (a) the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty, and

• (b) the Court is satisfied that he understands the nature of the offence and the facts alleged,

the Court may—

• (i) if the Attorney General does not object, deal with the offence summarily, or

• (ii) if the accused signs a plea of guilty, send him forward for trial with that plea and any depositions already taken.

  • (3)(a) Where a person sent forward for trial under this section, on being arraigned, expresses the desire to withdraw his written plea and to plead not guilty, the trial judge shall enter a plea of not guilty and fix a date for the trial.

    • (b) If at the trial it is proposed to call as witnesses for the prosecution persons who have not made depositions, the Attorney General shall, not less than seven days before the trial, cause to be served on the accused a notice in writing specifying those persons and giving a statement of the evidence that is to be given by each of them."

Section 21 of the Criminal Justice Act, 1951, provides as follows:—

"(1) In every case of summary jurisdiction the Justice shall enter concisely in his Minute Book the effect of his decision.

(2) He shall sign the entry which shall then be taken to be the decision of the...