Walsh v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: the Court
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] IESC 54
• Docket Number: Record No. 2017/68
• Court: Supreme Court
• Date: 31 May 2019

[2019] IESC 54

THE SUPREME COURT

The Court

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Finlay Geoghegan J.

Record No. 2017/68

Between:

DAVID WALSH

Appellant

-and-

THE MINISTER FOR JUSTICE AND EQUALITY, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE COURTS SERVICE, JUDGE ALICE DOYLE

AND

THE GOVERNOR OF CORK PRISON

Respondents

Sentencing – Contempt – Proportionality – Appellant seeking to set aside an order of the Court of Appeal – Whether any basis had been established for interfering with the operation of the judgment of the Court of Appeal

Facts: The appellant, Mr Walsh, on 31 May 2016, was found to be in contempt of the Circuit Court and sentenced to two weeks’ imprisonment. On 2 June 2016, an inquiry was commenced under Article 40.4 of the Constitution and, on 3 June 2016, the High Court made an order for the release of Mr Walsh on the grounds that, while he was in contempt, the sentence was disproportionate. The fifth respondent, the Governor of Cork Prison, appealed to the Court of Appeal, which gave judgment on 25 March 2017 and reversed the decision of the High Court. The Court also directed that Mr Walsh be taken into custody to serve the balance of the 14 day sentence imposed, with credit being given for the period already served in prison. The Court also placed a stay on that order for seven days to permit Mr Walsh to purge his contempt. Mr Walsh did not do so and sought leave to appeal to the Supreme Court on a number of grounds. A panel of the Supreme Court did not grant leave to appeal on the grounds advanced by Mr Walsh, but did grant leave on one question, namely the procedures adopted before the order of committal for contempt was made. On 25 February 2019, the Supreme Court unanimously dismissed Mr Walsh’s appeal (Walsh v Minister for Justice and Equality & Anor [2019] IESC 15). By letter of 28 March 2019, solicitors on behalf of Mr Walsh sought directions in relation to certain matters which had been referred to at para. 42 of the first judgment in Walsh, which was a reference to the fact that the Court had invited submissions on the matters. However, the letter also queried “whether the Court would be disposed to hear a motion to set aside the judgment and order of the Court on the grounds that the matters set out at Part B below on foot of a draft notice of motion attached, the affidavit, enclosed herewith, and written submissions unless directed otherwise”. The matters set out at Part B of the letter were described as “[f]actual errors in the judgment and an application to set aside the judgment and reverse the decision on the appeal”. The draft notice of motion contained the relief sought, which, at para. 1 included an order “that the [first] judgment given by this Honourable Court on the 25th of February 2019 herein, dismissing the Appellant’s appeal be varied and the decision of this Honourable Court made on foot of that judgment to dismiss the appeal be rescinded”. Para. 2 sought an order that the appellant’s appeal be upheld and that the order of the Court of Appeal be set aside.

Held by the Supreme Court that if it is apparent that an application does not disclose grounds capable of being argued as justifying the exercise of the jurisdiction in In re Greendale Developments Ltd (No. 3) [2000] 2 IR 514, then it would be a breach of the terms of Article 34.5.6° of the Constitution, and the object of that provision would be defeated if the Court were to entertain such a claim. The Court did not consider that any basis had been established for granting the exceptional relief identified in Greendale.

The Court held that it could not see that any basis had been established for interfering with the operation of the judgment of the Court of Appeal and that it would accordingly affirm the order of the Court of Appeal concerning the reissuance of the warrant of committal, so that Mr Walsh would serve the remaining ten days of the sentence imposed on him on 31 May 2016.

Appeal dismissed.

Judgment of the Court delivered on the 31st May, 2019.

1. Introduction

1.1 On 31 May 2016, the applicant/appellant, Mr. Walsh, was found to be in contempt of the Circuit Court and sentenced to two weeks” imprisonment. Three days later, on 2 June 2016, an inquiry was commenced under Article 40.4 of the Constitution and, on 3 June 2016, the High Court made an order for the release of Mr. Walsh on the grounds that, while he was in contempt, the sentence was disproportionate. The fifth named respondent to the proceedings, the Governor of Cork Prison (‘the Governor’), the only active respondent to this appeal, appealed to the Court of Appeal, which gave judgment on 25 March 2017 and reversed the decision of the High Court. The Court also directed that Mr. Walsh be taken into custody to serve the balance of the 14 day sentence imposed, with credit being given for the period already served in prison. The Court also placed a stay on that order for seven days to permit Mr. Walsh to purge his contempt.

1.2 Mr. Walsh did not do so and sought leave to appeal to this Court on a number of grounds. A panel of this Court did not grant leave to appeal on the grounds advanced by Mr. Walsh, but did grant leave on one question, namely the procedures adopted before the order of committal for contempt was made. The appeal was heard at the same time as the appeal in Tracey v. McCarthy [2019] IESC 14, (Unreported, Supreme Court, 25 February 2019) (‘ Tracey’). The Irish Human Rights and Equality Commission (‘IHREC’) appeared as an amicus curiae in Tracey. The submissions of all parties were exchanged between the parties in both sets of proceedings and judgment was delivered in both matters on the same day, 25 February 2019.

1.3 This court unanimously dismissed Mr. Walsh's appeal. Two judgments were delivered: one by O'Donnell J., with whom Clarke C.J., MacMenamin and Finlay Geoghegan JJ. agreed and a concurring judgment by McKechnie J. (see, Walsh v. Minister for Justice and Equality & Anor [2019] IESC 15). In Tracey, the Court also unanimously allowed Mr. Tracey's appeal. Again, two judgments were delivered: one by O'Donnell J., with whom Clarke C.J. and MacMenamin and Finlay Geoghegan JJ. agreed and a concurring judgment by McKechnie J.

1.4 The concluding portion of the last paragraph (para. 42) of the judgment of O'Donnell J. in Walsh was in the following terms:-

‘…It is quite clear, in my view, that the matter would never have reached the point of a committal to prison if Mr. Walsh had been willing to accept, even at a late stage, that he was wrong, and was in any event obliged to accept the ruling of the judge. It would be desirable, nevertheless, if this matter could now be resolved without the necessity that he should at this stage serve any further time in prison. The order of the Court of Appeal provides a mechanism whereby that might be achieved, depending on the attitude taken by Mr. Walsh at this stage. In any event, there are issues of law which arise, since an order for release was made by the High Court, which was then the subject of appeal to the Court of Appeal and to this court. Furthermore, I would wish to have submissions as to the extent of the powers of an appellate court in these proceedings. I would accordingly dismiss the appeal, but would require further submissions as to the form of the order which may be made at this juncture.’

1.5 By letter of 28 March 2019, solicitors on behalf of Mr. Walsh sought directions in relation to certain matters which had been referred to at para. 42, which was, it appears, a reference to the fact that the Court had invited submissions on the matters set out above. However, the letter also queried ‘whether the Court would be disposed to hear a motion to set aside the judgment and order of the Court on the grounds that the matters set out at Part B below on foot of a draft notice of motion attached, the affidavit, enclosed herewith, and written submissions unless directed otherwise’. The matters set out at Part B of the letter were described as ‘[f]actual errors in the judgment and an application to set aside the judgment and reverse the decision on the appeal’. The draft notice of motion contained the relief sought, which, at para. 1 included an order ‘that the judgment of Mr. Justice O'Donnell given by this Honourable Court on the 25th of February 2019 herein, dismissing the Appellant's appeal be varied and the decision of this Honourable Court made on foot of that judgment to dismiss the appeal be rescinded’. Paragraph 2 sought an order that the appellant's appeal be upheld and that the order of the Court of Appeal be set aside. In essence, therefore, the mooted application would seek not just the setting aside or altering of the judgment of O'Donnell J., but the reversal of the decision of the Court.

1.6 As there was to be a hearing in respect of the matters raised in para. 42 of the judgment in any event, the Court directed that both matters be dealt with together. Since the question of an appropriate order to be made pursuant to the original judgment of the Court would not arise if the reliefs sought at paras. 1 and 2 were granted, and the judgment varied, the order set aside, and the appeal allowed, it is appropriate to consider that issue first.

2. Setting aside a judgment of the Supreme Court

2.1 Mr. Walsh does not, on this application, seek to raise any issue relying on a suggestion that the order of the Court was not finalised or the judgment unapproved. The relief sought is plainly stated to be to set aside the judgment of this Court and, as observed, to reverse the decision. An application to set aside a final judgment of this Court must confront the terms of what is now Article 34.5.6° of the Constitution to the effect that ‘[t]he decision of the Supreme Court shall in all cases be final and conclusive’. This Article is a constitutional obligation binding on this Court,...