The State (Cannon) v Kavanagh

• Jurisdiction: Ireland
• Court: High Court (Irish Free State)
• Judgment Date: 24 June 1937
• Date: 24 June 1937

The State (Cannon) v. Kavanagh

THE STATE (at the prosecution of FELIX CANNON)

and

JOHN KAVANAGH, the Governor of Mountjoy Prison, Dublin, and in the Matter of the CONSTITUTION OF SAORSTÁT saorstátÉIREANN éireann(1)

High Court.

Habeas Corpus - Conviction on indictment in Circuit Court - Legality of detention for execution of sentence - Whether reviewable on habeas corpus - Criminal law - Jurisdiction of Circuit Court in criminal cases - Offences charged which were alleged not to have been committed where tried - Courts of Justice Act, 1924 (No. 10 of 1924), sects, 48, 53 - Conclusion by jury without evidence on fact essential to jurisdiction - Indictment and conviction of an offence with which accused not charged in District Court - Offence properly arising on evidence given in District Court - Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 (No. 1 of 1922), Sch. I, Art. 6.

Sect. 53 of the Courts of Justice Act, 1924, provides:—

"Provided that the jurisdiction hereinbefore vested in and transferred to the Circuit Court in criminal cases shall be exercised by the Circuit Judges severally as follows:—The Circuit Judge having jurisdiction shall be the Judge for the time being assigned to the Circuit in which the crime has been committed or in which the accused person has been arrested or ordinarily resides, . . ."

F. C. and M. C., who were ordinarily resident in Mohill in the County of Leitrim, were arrested at Mohill, taken in custody to Dublin and charged in the Dublin District Court with:—(a) conspiring to and unlawfully obtaining moneys by means of false pretences with intent to defraud; (b) conspiracy to utter and forge a death certificate with intend to defraud, (c) forging a death certificate with intent to defraud; (d) uttering a forged certificate with intent to defraud. The death certificate was delivered by F. C. to M. C. who was an agent of an Assurance Company and who, in accordance with his duty as such agent, forwarded same by post from Mohill to the Company's office in Dublin in connection with a claim under a policy of assurance. A cheque for the amount payable was sent by the Company from Dublin to M. C. who paid the proceeds to F. C., the latter being authorised to receive same by the beneficiary under the policy.

The accused were returned for trial in the Dublin District Court. Both in the District and Circuit Courts it was submitted on behalf of F. C. that there was no jurisdiction to try the offences charged, it being contended that the offences, if committed at all, were not committed in Dublin. In respect of one particular count in the indictment, viz.: "causing money to be paid by means of a forged document knowing same to be forged;"it was further objected that F. C. had not been charged with this offence in the District Court. He was convicted of this offence in the Circuit Court and sentenced. He applied for an absolute order of habeas corpus:

Held 1, that a person detained for execution of sentence after conviction on indictment in the Circuit Court according to the course of the common law as amended by the Courts of Justice Act, 1924, is prima facie detained according to law, and it would require the most exceptional circumstances for the Court to grant even a conditional order of habeas corpus; and, in the present case, there were no such exceptional circumstances.

2, that the facts deposed to in the applicant's affidavit were insufficient to show that there was no evidence on which the jury could find that the offence had been committed in Dublin.

3, that, as it was admitted that the offence of which the applicant was convicted properly arose on the evidence given in the District Court, that he was not prejudiced in his defence, and that there had been no miscarriage of justice during the trial, there was jurisdiction to try and convict the applicant on this offence.

Quaere: Whether habeas corpus is open to a prisoner where a jury trying an indictment had come to a conclusion without evidence on a fact essential to jurisdiction left to them by the Judge.

Habeas Corpus.

On the 11th day of November, 1936, the applicant, Felix Cannon, was arrested with one, Michael Cox, on a...