The State (Glover) v McCarthy

• Jurisdiction: Ireland
• Court: High Court
• Judge: Gannon, J.,
• Judgment Date: 06 March 1981
• Neutral Citation: 1981 WJSC-HC 568
• Date: 06 March 1981
• Docket Number: 392SS/198O and 393SS/198O

State, Glover & Mulligan v McCarthy

STATIC SIDE

THE STATS (ANN GLOVER)

Prosecutrix

and

DISTRICT JUSTICE J.E. McCARTHY

Respondent

and

BETWEEN:

THE STATE (SANDRA MULLIGAN)

Prosecutrix

and

DISTRICT JUSTICE J.E. MCCARTHY

Respondent

1981 WJSC-HC 568

392SS/198O and 393SS/198O

THE HIGH COURT

STATE SIDE

Certiorari

1 Judgment of Gannon, J., delivered the 6th March 1981

2 These two applications to make absolute Conditional Orders of Certiorari came on for hearing on the 9th February 1981 and by consent of the parties were heard together. Each prosecutrix was convicted upon a plea of guilty in the District Court on the 29th August 1980 and was sentenced to one month's imprisonment on foot of a charge of stealing assorted children's clothing and sheets at Penny's shop Mary Street in the City of Dublin on the 28th August 1980. On the 13th October 1980 each procecutrix obtained a Conditional Order directed to the District Justice to send before this Court for the purpose of being quashed the said conviction and Order and all records and entries relating thereto unless cause be shown to the contrary. The grounds on which the Conditional Orders were made are the sane in both cases and are that each order of conviction and sentence was bad in law for the following reasons as expressed in the grounding affidavits

3 a "(a) Is contrary to constitutional and natural justice that I had not the benefit of free legal aid at my trial.

4 (b) I was not afforded the opportunity to engage my own Solicitor.

5 (c) I was not afforded the opportunity of an adjournment.

6 (d) I was not capable of defending myself at the said trial and the case should not have proceeded in the absence of legal representation.

7 (e) Ey trial was not heard in due course of law. It is a denial of my rights under Article 38. 1, Article 40. 3. 1 and 40. 3. 2. of Bunreacht na h-Eireann.

8 (f) I was not afforded a reasonable opportunity to prepare "the case in my defence with or without legal representation.

9 (g) The learned District Justice had no basis on which to certify the charge as a minor offence, fit to be heard summarily, without hearing a summary of the facts from the prosecuting Garda.

10 (h) The learned District Justice did not inform me of my right to make a statement under oath which I could be cross-examined, or an unsworn statement, or of my right to remain silent.

11 (i) The learned District Justice failed to observe usual criminal procedure to wit neither heard nor required the facts of the case, nor any evidence of my circumstances."

12 In each case cause was shown on behalf of the respondent by affidavit sworn by Garda Liam Curtin by whom the charges were preferred in the District Court. Notice of application to the Court on the 19th January 1901 for an order making absolute notwithstanding cause shown the Conditional Order was served in each case. The evidence on affidavit of Garda Curtin is at variance with that of each prosecutrix, and notice of intention to cross-examine each of the deponents was served. An affidavit sworn on the 4th February 1981 by the solicitor for each prosecutrix was read on this application without objection on behalf of the respondent. Both applications were heard together and on the hearing Mrs. Ann Glover, Mrs. Sandra Mulligan, Miss Paula Scully the solicitor for the prosecutrix and Garda Liam Curtin all gave oral evidence and were cross-examined.

13 In the course of the oral evidence it was discovered that each prosecutrix had served a Notice of Appeal to the Circuit Court from the District Court Order, and that in each case the appeal had been adjourned by the Circuit Court Judge at the request of the prosecutrix until after the determination of the application to this Court for an Order absolute of Certiorari. A copy of each Notice of Appeal and recognizance in relation thereto was produced after adjournment for that purpose and forms part of the evidence before this Court. At no stage was any indication given to Garda Curtin or to the District Court or to thin Court that either prosecutrix wished to or had reason to deny the charge against her. The Notice of Appeal in each case is against sentence only.

14 Having seen and heard the several witnesses give oral evidence it is clear to me that the affidavits are incomplete and inaccurate in material respects, and in their oral evidence the witnesses were not entirely reliable. The following arc the facts as I find them to be. Following information he had received from a store detective Garda Liam Curtin arrested both Ann Glover and Sandra Milligan shortly after 3.30 p.m. on the 28th August 1980 outside Penny's shop in Mary Street. He told them he was arresting them for stealing goods from Penny's and took them to Store Street Garda Station. They had a shopping bag with assorted children's clothing and sheets, the estimated value of which is £58. At the Garda Station formal charges were prepared and entered in the Charge Sheet before being put to them. While at the Garda Station, before the charges were read out to them, they had a general conversation with Garda Curtin in which they gave information about themselves and their homes and family circumstances. They were told they would be released on bail and would be required to attend in the District Court the following morning. They were frightened and nervous and informed the Garda they had never been in trouble before. They enquired what would happen in Court and they were told by Garda Curtin that he would tell the District Justice that he had arrested then and what the charges were. He also told each of them that she would be told she could have legal aid if she could not afford a solicitor, and that she should ask for legal aid as it would cost nothing. He also told them that they would be asked if they plead guilty or not...