The Gazette 1980

JULY-AUGUST

1980

GAZETTE

RECENT IRISH CASES CRIMINAL LAW Conviction for larceny quashed by Court of Criminal Appeal because (i) a written statement of accused made while in unlawful detention ought to have been excluded by trial judge, and (ii) the claim of right of the accused to the charge of larceny should have been allowed to go to the jury- The Appellant had been convicted of the larceny of a muck-spreader in the Circuit Court. The muck-spreader had been found by the Gardai on the Appellant's farm and the Appellant had accompanied Gardai to a Garda station at 9.30 a.m. and told them that he had bought it from a dealer. The Gardai checked the Appellant's story and at 2 p.m. he was told that the dealer had denied the story. Sometime after that the Appellant was brought to a different Garda station, and that therefore his relation to an outbreak of cattle steal- ing. At 10 p.m. that evening the Appellant made a written statement admitting that he took the muck- spreader. Counsel for Appellant submitted that the Appellant was never formally arrested despite the fact that he was in custody once he had been brought to the first Garda station and that therefore his detention was unlawful and in breach of his constitutional rights. Held (per O'Higgins, C.J.): (1) That the evidence disclosed that the Appellant had consented to accompany the Gardai to the first Garda station; that the Gardai had been of the opinion that he had committed an offence; that the only delay in charging him had been occasioned by the necessity of check- ing his story; and that the formality which had been lacking could not amount to a conscious and deliberate violation of the Appellant's consti- tutional rights and, that, therefore, his verbal statement was admissible. (2) That the Appellant however, ought to have been charged after his story had failed to check out. Per O'Higgins C.J.: "Apart from the special situation provided for under the Offences Against the State Acts, there is no procedure under our law whereby a person may be held in a Garda

station without charge. In particular our law does not contemplate or permit the holding of a person for questioning". The decision not to charge the Appellant at that time could only have been the result of a deliberate decision by the Gardai; that the concern of the Gardai to continue their investigation into cattle-stealing was not such a special circumstance which could excuse the violation of the Appellant's constitu- tional rights which had taken place; and that accordingly, the Appellant's written statement ought to have been excluded. The trial judge had also decided that the Appellant's claim of right — that he took the muck-spreader in the belief that he was entitled to do so because the owner could not pay for his debts - could not arise. TTie trial judge had felt that, to establish a claim of right, the claim must be one known to the law. Held further (per O'Higgins C.J.): (3) That following AG v. Gray [1944] I.R. 326, the question to be considered was not whether the claim of right being put forward was one known to the law, but rather whether it was one honestly believed in by the accused, and, whether, with that honest belief, what he did could be excused; that this was a matter to be decided on by the jury and that since the trial judge had declined to permit the Appellant to put forward this defence that there had been a mis- carriage of justice; and that accord- ingly, the conviction ought to be quashed. D.P.P. v. John O'Loughlin - Court of Criminal Appeal (per O'Higgins C.J., with Finlay P. and Doyle J.) - 11 December 1978 unreported. The power of the Minister for Justice to transfer a prisoner to the Central Mental Hospital, Dundrum, only authorises the detention of a person where the District Justice has made an Order of remand "for further medical examination", and then only for the specified period of remand Extent of the power of the Minister under Section 13 of Lunatic Asylums (Ireland) Act 1875 as adapted and extended by the Criminal Justice Act, HABEUS CORPUS AND CERTIORARI

1960, considered. Distinction between purely administrative orders and judicial orders of the District Court also considered. The Prosecutor (Caseley) was arrested on 8 May 1975, and on 9 May 1975 was charged before a District Justice (the second Respondent) with the offence of having unlawfully and maliciously set fire on 8 May 1975, to a school. He was then put on remand in custody until 15 May 1975, with consent to bail and a request by the District Justice for a medical report on the Prosecutor, who in the absence of bail, was detained in Mountjoy Prison. On 12 May 1975, he was transferred from Mountjoy to the Central Mental Hospital at Dun- drum, Dublin, pursuant to an order of the Minister for Justice of that date made under Section 13 of the Lunatic Asylums (Ireland) Act 1875, as adapted and extended by the Criminal Justice Act 1960. The Prosecutor was never subsequently brought before the District Court and remained detained in the custody of the first Respondent, the director of the Central Mental Hospital, without any further order of the Minister for Justice. It appeared that on 15 May 1975, in the absence of the Prose- cutor, evidence was given in Court by a doctor to the District Justice that the Prosecutor was unfit to attend court and on that date and on ten subsequent stated dates the District Justice made further orders remand- ing the Prosecutor in custody for stated periods, but the Prosecutor was not informed of any of these matters nor was he given an oppor- tunity of attending in court on any of these occasions. The Prosecutor stated (on affidavit) that he was not suffering from any physical or mental disability and was physically and mentally fit to attend court and to understand proceedings and to instruct a solicitor, and that he believed that his continued detention was on the basis that he was alleged to be unfit to attend court. On 6 November, 1978, in the High Court, the Prosecutor was granted a Conditional Order of Certiorari relating to a particular order of the District Justice of 13 October, 1978 (being the last of a series of similar orders) the terms of which order were as follows: