The Gazette 1967/71

our Constitution—the provisions of the 1875 Act taking the accused away from the Court's disposal is a great intrusion on judicial proceedings—it is for the Court, and not for the Minister to deter mine whether the accused is insane—consequently the applicant is not lawfully detained—Appeal allowed. Order for Habeas Corpus made absolute and release ordered. (30th July, 1967). 9. State (Michael Brown v. Governor of Limerick Prison and District Justice Feran. Murnaghan J. granted a conditional order of certiorari and habeas corpus, subsequently the order was made absolute by Davitt P. in July, 1966. The applicant was found guilty of breaking and entering and sentenced to six months in March, 1966—applicant subsequently was relea sed. The preliminary objection to the habeas cor pus issue—there is no appeal by the State from an order of release in a habeas corpus "prescribed" means ordered laid down or imposed. It follows that the appellate jurisdiction from the High Court dicisions arise directly from articles 34 of the Constitution and does not depend upon an Act of the Oireachtas; its jurisdiction is almost unlimited—and habeas corpus is no exception thereto—unlike the Supreme Court, The High Court cannot exercise its jurisdiction subject to exceptions prescribed by law. The only Court of final appeal is therefore the Supreme Court. In Burke v. Lennon (1940), the then Supreme Court wrongly assumed that article 34 applied to that Court, save for Cox v. Hakes (1873) the Court would have decided that an appeal for a release from habeas corpus would lie—Appellants cons truction applicable to statutes do not equally apply to the written Constitutions which is the funda mental law and must be construed according to its literal meaning, therefore, a right which can be taken away by legislation can a fortiori be taken away by Constitution. The Constitutional provisions as to appeals must prevail. Under the 1922 Constitution an order for habeas corpus was made by a Judge of the High Court—under the 1937 Constitution the order was made by the High Court itself—the right to freedom from un lawful detention was guaranteed by the Consti tution and is a constitutional right enforceable by civil proceedings. The Constitution in habeas corpus cases lays down its own procedure—all decisions of the High Court are appealable it cannot be inferred otherwise in the 1922 as well as in the 1937 Constitution. The State (Burke v. Lennon) ought not to be followed—order of release in High Court must be granted even if appealable. The facts of the case were that the applicant

was arrested in Dublin and charged with house breaking in County Limerick and with stealing and receiving £327 contrary to section 2 of the Larceny Act, 1916. The applicant was tried at Askeaton Court and indicated that he wished to be tried summarily—he was convicted and senten ced to six months in Limerick prison. Ten days later Murnaghan J. granted a conditional order of certiorari because section 2 of the Larceny Act, 1916 was not the appropriate section in the case. A true copy of the conviction stated that the offence made was under section 26 of the Larceny Act, and a District Court Clerk swore this ac cordingly. After hearing handwriting erperts Davitt P. made a conditional order absolute and the Supreme Court held that there was no evi dence that alterations were made in the entries, However, there was a defect on the face of the order, in the minute book, which does not state that the applicant did not object to being tried summarily. Accordingly the Appeal was dismissed and the conviction quashed. (24th July, 1967). 10. Tomkins and Gilmorc, Infants v. Julia Windie. The defendant appealed against the refusal of Murnaghan J. to grant leave to the defendant to serve a third party notice on the Abbey Garage, Galway under the Civil Liability Act, 1961. A collision between Gilmore Snr.'s car and the defendant's motorcar in which Gilmore Jnr. was injured—defendant alleged accident caused by sudden and total failure of brakes, in a second hand car which had been bought shortly before. Section 27 is intended to ensure that all questions relating to liabilities of wrongdoer should be tried in a single proceeding—Appeal allowed subject to plaintiff not being put to extra expense. (29th July, 1966). 11. People (Attorney-General) v. Nuala Bell and Others. Six accused girls employed in Dunnes Stores in January, 1964—Sergeant Culloty and Garda Mol- loy were asked to investigate complaints by the Manager of the store and statements were taken and confessions signed, allegedly by threat. The Garda alleged statements were made freely. The accused also were charged with conspiracy to steal and were therefore returned for trial to Circuit Court despite the small value of the goods stolen. This case was subsequently transferred to the Central Criminal Court and ultimately heard by McLoughlin J. and jury in April, 1966— McLoughlin J. admitted the statements, but sub sequently discharged the jury. The second trial was held before Mr. Justice Kenny who also ad mitted five of the statements. The case lasted for thirty-nine days and the accused were found not 58