The Gazette 1978

GAZETTE

N O V E M B E R

1978

HABEAS CORPUS — INTERFERENCE WITH RIGHTS OF PRISONERS An interference with a prisoner's right to receive or to send letters does not render the detention unlawful. The Prosecutor (Marie Murray) applied for a Conditional Order of Habeas Corpus or, in the alternative, an enquiry under Article 40 of the Constitution. Both the Prosecutor and her husband were serving sentences in different prisons. Under the Rules for the Government of Prisons 1947 and the Prison Act 1972 (Military Custody) Regulations 1972, the applicant and her husband were permitted to write a certain number of letters to each other and were also allowed to see each other six times a year. In July 1978 the priviliges of the Prosecutor's husband were withdrawn for a month. The Prosecutor contended that the resulting interference with her right to c ommu n i c a te and r e c e i ve communication from her husband amounted to an interference with her rights such as to make her detention illegal. She expressly based her claim on the ground that a convicted person retained all his rights except that to liberty. The High Court (D'Arcy J.) in refusing the application stated that he was bound by the decision in The State (McDonagh) v. Governor of Mountjoy Prison (High Court, July 1978, unreported), (inter alia): "The stipulation in Article 40(1) of the Constitution that a citizen may be deprived of his liberty save 'in accordance with Law' does not mean that a convicted person must be released on Habeas Corpus merely because of some defect or illegality attached to his detention. The phrase 'in accordance with Law' means that there must be such a default of' fundamental requirements that the detention may be said to be wanting in due process of law. For Habeas Corpus purposes, therefore, it is not sufficient for the prisioner to show that there has been a legal error or impropriety or even that jurisdiction has been inadvertently exceeded". Held, accordingly that the alleged interference with the Prosecutor's right to receive and send letters or visit her husband did not render her detention unlawful. The State" (Marie Murray) v. Governor of Limerick Prison — High Court (per D'Arcy J.) — 23 August 1978 — unreported.

the present case. (4) That the Conditional Order of Certiorari was made absolute. The State (at the Prosecution of Seamus Crothers) v. District Justice James A. Kelly, The Lord Mayor, Aldermen and Burgesses of Dublin and the Attorney General — High Court (per Doyle J.) — 2 October 1978 — unreported. PRACTICE Function of Appellate Court in reviewing findings of fact by Inferior Court. The President of the High Court (Finlay, P.) had found that the Plaintiffs had falsely represented to the Defendants that one P.Q. had lodged in the bank the amount of a contribution which it had been agreed he would make to the cost of the takeover of J. G. Mooney & Company Limited by P.Q. Holdings Limited and that the representation was material to the Defendants' participation in the takeover ana that the Defendants were induced, as was intended by that representation, to proceed with the takeover. A question which arose for decision in the Supreme Court was whether, regardl ess of any con t r a ry conclusions which might seem open on a review of the evidence, it was competent for the Supreme Court to set aside any of the findings of fact. The Supreme Court (in separate judgments by O'Higgins CJ., with Butler J. concurring, and by Henchy J. and Griffin J., and Parke J.) referred to the Judgment of Holmes LJ. in the S.S. Galrlock 1899 2 I.R. 1 at p. 18 and to Benmax v. Austin Motor Company 1955 A.C. 370 and (per O'Higgins C.J. with Butler J.) to Coughlan v. Cumberland 1898 1 Ch. D. 704 and to Montgomerie A Company Limited v. Wallace, James 1904 A.C. 73 and to Mersey Docks A Harbour Board v. Proctor 1923 A.C. 253 and (per Henchy & Griffin J J . with Parke J. concurring) drew distinctions, firstly, between the approach of an appellate court to criminal and civil cases and, secondly, to the approach to questions of fact and those of law and, thirdly, to questions of fact the answers to which gave a factual resolution of conflicting oral testimony and the questions of fact — the answers to which do not resolve conflicts but are in the nature

NATURAL JUSTICE — CERTIORARI

Where the Maxim Audi Alteram Partem ("Hear the other party") is disregarded, Certiorari will follow. The Prosecutor (Crothers) and his wife became occupiers of a flat at Countess Markievicz House, City Quai, Dublin in May 1975. This flat was a dwelling provided under the enablement of the Housing Act 1966 by the Dublin Corporation. The Prosecutor's wife offered rent and the Corporation issued receipts bearing the words "Me s ne R a t e s ". Eventually a notice to quit and demand for possession was served by the Corporation and Prosecutor was s ummo n ed to t he Du b l in Metropolitan District Court on 12 December 1975 to show cause why a warrant under Section 62 of the Housing Act 1966 should not issue for delivery by possession of the flat. The Prosecutor alleged that at the hearing the District Justice did not ask him whether he wished to give evidence or cross-examine the witness from the Corporation, and he further alleged that the District Justice stated that the Corporation would fix him up with alternative accommodation. As a result the Prosecutor left the Court quite satisfied and did not appeal the Order made by the District Justice. Subsequently, however, the Prosecutor and his family were evicted. The Prosecutor then applied to the High Court for and obtained a Conditional Order of Certiorari. Held, (Doyle J.), on the application to make the Conditional Order absolute. (1) That in the circumstances the evidence of the Prosecutor as to what happened in the District Court had to be accepted, as neither the Solicitor for the Corporation nor the Corporation rent collector who gave evidence at the District Court hearing had a clear recollection of what actually happened. (2) That, accordingly, the Prosecutor was not given an opportunity to make his case and the failure to observe the maxim of 'Audi Alteram Partem' was fatal to the Order of the District Court. The contention of the Corporation, that the Prosecutor had in fact no case to make, was irrelevant. (3) That the constitutionality or otherwise of Section 2 of the Housing Act 1966 need not be determined in