The State (O'Flaherty) v Martin

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-HC 3380
• Court: High Court
• Date: 01 January 1984
• Docket Number: No. 23 S. S./1980

1983 WJSC-HC 3380

THE HIGH COURT

No. 23 S. S./1980

No. 469 S. S./1980

STATE (O'ROURKE & WHITE) v. MARTIN & STATE (O'FLAHERTY) v. MARTIN

THE STATE (PATRICK O'ROURKE AND JOHN WHITE)

.v.

HIS HONOUR JUDGE FRANK MARTIN

THE STATE (PAUL O'FLAHERTY)

.v.

HIS HONOUR JUDGE FRANK HARTIN

Subject Headings:

CRIMINAL LAW: trial

NATURAL JUSTICE: fair procedures

Subject Headings:

CRIMINAL LAW: trial

NATURAL JUSTICE: fair procedures

1 Judgment of Gannon J. delivered 29th July 1983.

2 On the 31st of October 1980, Mr. Justice Barrington granted a Conditional Order of Certiorari on the application of the prosecutor Paul O'Flaberty, directed to His Honour Judge Frank Martin of the Dublin Circuit Court to send forward to the High Court to be quashed unless cause shown to the contrary, his Order of the 21st of October 1980. By that Order the learned Circuit Court Judge had dismissed an appeal brought by the prosecutor against his conviction in the Dublin District Court of receiving stolen goods knowing them to be stolen and had affirmed that conviction and varied the punishment therefor by imposing a sentence of twelve months imprisonment in lieu of a fine of £10.00 imposed in the District Court. The grounds upon which the Conditional Order of Certiorari was granted are stated to be as set out in paragraphs (a) and (b) and (c) of paragraph 9 of the affidavit of the prosecutor sworn on the 30th of October 1980. These are as follows:-

3 a "(a) that the learned Respondent declined to judicially or at all to consider a compelling view of the evidence, viz. that it went to larceny not receiving, on the grounds that it would have the effect of constraining him to aquit me of the receiving charge.

4 (b) further, or in the alternative, that the learned Respondent appeared to consider the above view of the evidence for the reasons stated.

5 (c) that the increase in sentence from the £10.00 imposed by the learned District Justice to the sentence of twelve months imprisonment imposed by the learned Respondent was imposed unfairly and other than in accordance with natural or constitutional justice."

6 Cause was shown by the Respondent the learned Circuit Court Judge by affidavit on his behalf of an assistant solicitor of the Chief State Solicitor sworn on the 15th of January 1981. The application by the Prosecutor to make absolute the Conditional Order notwithstanding cause shown came before this Court on the 9th of March 1981.

7 On the 18th day of January 1981 Mr. Justice Barrington granted a Conditional Order of Certiorari on the application of the Prosecutors Patrick O'Rourke and John White directed to His Honour Judge Martin of the Dublin Circuit Court to send forward to the High Court to be quashed unless cause shown to the contrary his Orders of the 14th of January 1981. By these Orders the learned Circuit Court Judge had dismissed appeals brought by the Prosecutors against their convictions in the District Court of assaults on one Gerard Hughes and had affirmed the convictions and varied the punishment in each case by imposing a sentence of three months imprisonment on each Prosecutor in lieu of the fine of £50.00 imposed in the District Court. The grounds upon which the Conditional Order of Certiorari was granted are stated to be set out in paragraph 9 of the affidavit of the Prosecutor, John White sworn on the 18th of January 1981. These are as follows:-

"9. I say and believe that the hearing of my said trial was not conducted in due course of law or in accordance with natural or constitutional justice in that:-"

(a) evidence of a criminal offence, other than the offence with which we were charged, was permitted to be given against us on the hearing of the said appeal.

(b) the said evidence was grossly prejudicial and was unwarranted in that it had no probative effect in relation to the charge before the Court.

(c) that the increase in sentence from the £50.00 imposed by the learned District Justice to the sentence of three months imprisonment imposed by the learned Respondent was imposed unfairly and other than in accordance with natural or constitutional justice.

(d) that the sentence imposed by the learned Respondent was not one justified or necessitated by any legal or social consideration and was a negation of, or a failure to vindicate, our constitutional right to liberty.

(e) the omission on the part of the learned Respondent to convey a view of the appropriate sentence on conviction was, in the circumstances, of an appeal and in the context of there being no further appeal on sentence, a failure to vindicate our said constitutional right."

8 Cause was shown by the Respondent the learned Circuit Court Judge by affidavit on his behalf of an assistant solicitor of the Chief State Solicitor sworn on the 2nd of February 1981. The application by the Prosecutors to make absolute the Conditional Order notwithstanding cause shown came before this Court on the 9th of March 1981.

9 As the substantial matter of complaint in each case relates to the variation and increase in severity of punishment in the Circuit Court over that imposed in the District Court both applications have been heard together. In both cases it was claimed that the reason the appeals were taken was to protect and vindicate the good name of the Appellant who did not intend that the punishment imposed by the District Court should be reviewed, but was obliged by the Court forms and rules to seek to appeal without making distinction between conviction and sentence. It was also argued in both cases that the Circuit Court has no jurisdiction on the hearing of an appeal from the District Court to impose a penalty greater than that imposed by the District Court. For the Prosecutors in both applications it was argued that the imposition on appeal of an increased penalty is contrary to the concepts of justice and should not be done without previously warning the Appellant of the Court's intention to consider so doing. In support of the submission that the Appellant to the Circuit Court could limit his appeal to the issue of conviction and preclude the Circuit Court from considering the matter of penalty reference was made to an unreported judgment delivered by Mr. Justice McMahon on the 25th of November 1980 in The State (Aherne) .v. Governor of Limerick Prison. As this decision was the subject of an appeal to the Supreme Court the further hearings of these applications were adjourned to be resumed when the decision of the Supreme Court on that appeal would be known.

10 Upon the...