The State (Williams) v Kelly (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 01 August 1970
• Date: 01 August 1970
• Docket Number: [1969. No. 18 SS.]
• Court: Supreme Court

Supreme Court

[1969. No. 18 SS.]

The State (Williams) v. Kelly [No. 2]

THE STATE (at the Prosecution of JOHN WILLIAMS)

and

EDMOND J. KELLY. [No. 2]

Criminal Law - Indictment - Return for trial required - Plea of guilty in District Court - Return for sentence before Circuit Court - Defendant arraigned on indictment in Circuit Court and sentenced on foot of further plea of guilty - Imprisonment pursuant to sentence not lawful - Habeas corpus - High Court - Jurisdiction to order further detention of defendant - Criminal Procedure Act, 1967 (No. 12 of 1967), s. 13, sub-s. 2 (b) - Constitution of Ireland, 1937, Article 40.

Habeas Corpus.

Certain charges (see p. 274, post) were brought against the prosecutor, John Williams, in the District Court and he pleaded guilty to the charges. On the 8th July, 1968, District Justice Kevin McCourt ordered that Williams "be sent forward for sentence on the aforesaid charge to the next sitting of the Circuit Court at Cork City for criminal business." On the same day the District Court issued a warrant (Form 38—S.I. No. 181 of 1967) directing that Williams be lodged and detained in Limerick Prison "until his sentence for the said offence and his discharge in due course of law." When he was brought before the Circuit Court, Williams was arraigned on an indictment containing two counts (see pp. 274-5, post); he again pleaded guilty and on the 5th November, 1968, he was convicted by His Honour Judge Neylon and sentenced to two concurrent terms of five years penal servitude. On the same day the Circuit Court issued its warrant which was directed to the Governor of Limerick Prison and which authorised him to detain Williams for the term of his sentences. Williams was lodged in Limerick Prison but later he was transferred to Portlaoise Prison pursuant to an order of the Minister for Justice dated the 14th November, 1968. On the 17th December, 1968, the Court of Criminal Appeal (FitzGerald, Murnaghan and Henchy JJ.) refused an application by Williams for leave to appeal against his sentences. On the 24th February, 1969, the High Court (Henchy J.) refused an application by Williams for an order of habeas corpus and Williams appealed to the Supreme Court from that refusal: The State (Williams) v. Kelly.1 The Supreme Court allowed that appeal and on the 29th April, 1969, ordered the respondent Governor of Portlaoise Prison to produce the body of the prosecutor, Williams, before the High Court on the 2nd May, 1969, and to justify to the High Court the detention of the prosecutor on the grounds of detention certified by the respondent to the Supreme Court. The respondent produced the prosecutor before the High Court on the 2nd May when the proceedings were adjourned to the 20th May.

The judgments, post, also governed similar proceedings entitled"The State (Bartholomew Casey) v. Edmond J. Kelly"—Record No. 20 SS of 1969. Casey was represented by solicitor and by counsel (D. P. M. Barrington S.C. and K. J. Haugh) in the High Court before Mr. Justice Butler. The prosecutor, Williams, appeared in person in the High Court and relied on the submissions made by counsel on behalf of Casey.

The order of the High Court made pursuant to the above judgment was in the following terms:—"And the Court doth order that the said prosecutor be brought up before the Circuit Court at Cork on the next available date for the hearing of criminal cases to be dealt with in accordance with the said order of the Cork City District Court (District No. 19) dated the 8th day of July, 1968, and the Court doth order that the prosecutor be detained in custody in Limerick Prison until sentenced in accordance with the said order of the District Court . . ." On the 9th June, 1969, the prosecutor issued notice of his appeal to the Supreme Court from the judgment and order of the High Court of that date. On the 11th June Mr. Justice Butler ordered that all proceedings on foot of his order of the 9th June (other than the detention of the prosecutor in Limerick Prison) be stayed until the appeal of the prosecutor had been determined; and on the same day the prosecutor was brought before the Circuit Court judge who adjourned the matter to the 13th June as the appropriate papers were not in court. On the 13th June the Circuit Court judge was informed of the stay placed on the order of the High Court and he adjourned the matter again, without making any order for the detention of the prosecutor. The prosecutor was then brought back to Limerick Prison. On the 28th July the High Court (Butler J.) refused to make an order of habeas corpus in respect of the detention of the prosecutor by the Governor of Limerick Prison, but that governor agreed to be bound by any order of the Supreme Court made at the hearing of the prosecutor's appeal from the order of Mr. Justice Butler made on the 9th June. The hearing of that appeal commenced on the 30th July, 1969.

The prosecutor had been charged in the District Court with having committed an indictable offence and having pleaded guilty, he was sent forward by order of that court to the Circuit Court for sentence pursuant to s. 13, sub.-s. 2 (b), of the Criminal Procedure Act, 1967. Nevertheless, when brought before the Circuit Court, the prosecutor was arraigned on indictment and, after he had pleaded guilty to the counts in the indictment, he was sentenced to serve a term of penal servitude. The prosecutor was imprisoned in Limerick Prison and then transferred to Portlaoise Prison. The Governor of Portlaoise Prison was the respondent in habeas corpus proceedings brought by the prosecutor in the High Court where it was

Held by Butler J., 1, that the sentence imposed by the Circuit Court had been made without jurisdiction as there had been no power to arraign the prosecutor on indictment in that court in the absence of a valid return for trial; and that the order of the Circuit Court should be quashed by the issue of an absolute order of certiorari.

The People (Attorney General) v. Boggan [1958] I.R. 67 applied.

2. That the High Court had an inherent jurisdiction to ensure that the prosecutor was duly sentenced and that, accordingly, the prosecutor should be detained in custody in Limerick Prison and then he should be brought before the Circuit Court at the next available date for hearing criminal cases for the purpose of being sentenced in accordance with the order of the District Court.

The prosecutor appealed to the Supreme Court and, before the appeal was heard, he was brought in custody before the Circuit Court. The Circuit Court judge was not furnished with the relevant papers and he did not sentence the prosecutor; the judge did not make any order for the detention of the prosecutor who was returned to Limerick Prison in reliance upon the order of Butler J.

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and FitzGerald JJ.), in ordering the release of the prosecutor, 1, that the sentence imposed by the Circuit Court had been imposed without jurisdiction as there had been no return for trial to found an indictment.

2. That, as his detention had not been shown to be in accordance with the law, the prosecutor must be released from detention in accordance with the provisions of Article 40, s. 4, sub-s. 2, of the Constitution.

3. That the order of the High Court did not authorise the detention of the prosecutor in Limerick Prison as that order, even if made within jurisdiction, was spent as an authority for such detention once the prosecutor had been brought before the Circuit Court.

4. That the order of the District Court, sending the prosecutor forward for sentence, was still a valid order; and that the Circuit Court should make any order that was required for the prosecutor's further detention.

In re Singer [No. 2] (1960) 98 I.L.T.R. 112 considered.

Cur. adv. vult.

Butler J. :—

The applicants are prisoners in Portlaoise Prison and have applied to the Court for an enquiry, under Article 40 of the Constitution, as to the legality of their detention. The matter previously came before the High Court and ultimately before the Supreme Court. In response to an order made by the Supreme Court, the respondent, who is the Governor of Portlaoise Prison, produced the bodies of the applicants before the Supreme Court and certified in writing his grounds for detaining them. The Supreme Court thereupon made an order dated the 29th April, 1969, that the applicants be further produced before this Court and that the respondent do justify their detention on the grounds so certified by him. The cases are separate, and in this Court Mr. Casey was represented by solicitor and counsel while Mr. Williams conducted his own case. However, as the circumstances giving rise to the detentions and the points at issue are the same, and as Mr. Williams confined himself to adopting Mr. Barrington's arguments, I can deal with the cases as one.

The respondent has certified that the applicants are being detained by him pursuant to:—

• (i) A warrant of the Circuit Court (County of Cork) dated the 5th November, 1968, which was addressed to the Governor of Limerick Prison and required him to cause Mr. Williams to undergo two concurrent sentences of 5 years penal servitude, and to cause Mr. Casey to undergo two concurrent sentences of 3 years penal servitude imposed on that day.

• (ii) An order of the Minister for Justice in each case, dated the 14th November, 1968, transferring the prisoners to Portlaoise Prison.

• (iii) An order of the Court of Criminal Appeal in each case refusing applications for leave to appeal against the said respective sentences.

No point arises on the orders for transfer or on the orders of the Court of Criminal Appeal but each of them depends upon the validity of the original order and warrant of the Circuit Court; if that order is invalid neither of the former can justify the detention. The main submission of the applicants is that the orders of...