The Gazette 1993

GAZETTE

APRIL 1993

Gutrani v Governor of Training Unit Mountjoy Prison Supreme Court 2 July 1992 ALIENS - JUDICIAL REVIEW - WHETHER FAIR PROCE- DURES APPLIED - ILLEGAL ALIEN SEEKING REFUGEE STATUS - WHETHER COURTS MAY ALLOW ADDI- TIONAL EVIDENCE ON JUDICIAL REVIEW The applicant, a Libyan national, came to Ireland on a student visa in 1983. The visa expired in 1984, but the applicant did not leave the State and went into hiding. He was found in September 1989 working in a res- taurant without a work permit. The Minister for Justice subsequently ordered the appli- cant to leave the State, in default of which he was liable to deportation. The applicant did not leave the State but applied for permission to remain as a refugee, within the meaning of the 1951 UN Convention on Refugees and the 1967 Protocol, of which Ireland was a signatory. Neither the Convention or the Protocol had loeen incorporated into domes- tic law, but by a letter of 15 DecemJjer 1985, the Minister for Justice had undertaken to the UN High Commissioner for Refugees (UNHCR) to apply the principles of the Con- vention and Protocol in deciding applica- tions for refugee status. The letter also stated that the application of the Convention prin- ciples would not preclude consideration of humanitarian grounds for leave to remain in the State. The Minister refused the appli- cant's case for refugee status after a hearing at which the applicant's legal advisers were present and after the papers in the matter had been transmitted to the UNHCR whose rep- resentative did not consider that the appli- cant had made out a case. The applicant sought judicial review of the Minister's re- fusal, in the course of which he sought to introduce additional evidence. In the High Court, O'Hanlon J refused to admit the addi- tional evidence and dismissed each of the grounds on which relief was sought. On appeal HELD by the Supreme Court (Hederman, McCarthy and O'Flaherty JJ) dis- missing the appeal: (1) the Minister had not contested that he was required to deal with the application under the 1951 UN Conven- tion in accordance with the letter to the UNHCR of 15 December 1985; and, having established such a scheme the Minister was tjound to apply it, not as a matter of legitimate expectation but simply because it was the procedure which the Minister had under- taken to enforce; and the Minister's decision was subject to judicial review; (2) the High Court had correctly refused to admit addi- tional evidence on judicial review since to do so would be to challenge the findings of fact made by the Minister; nor could judicial review h>e a vehicle for reopening the ques- tion of the applicant's status, which had been determined in the procedures adopted by the Minister; (3) there was no basis for the asser- tion that the Minister had failed to take ac- count of any relevant factor, including any humanitarian factor in the applicant's case. Per curiam: it was doubtful if any humanitar-

ian factor was relevant in the instant case, since such would concern matters such as illness, family commitment or personal con- siderations not related to political relation- ships. The People v Quilligan and O'Reilly (No.3) Supreme Court 14 July 1992 CRIMINAL LAW - EVIDENCE - INCRIMINATING STATE- MENT - WHETHER WARNING REQUIRED ON DAN- GER OF CONVICTING WITHOUT CORROBORATIVE EVIDENCE - VOLUNTARINESS - FUNCTION OF TRIAL JUDGE AND JURY - PROCEDURE - SEPARATION OF CHARGES - WHETHER JUSTIFIED - CONSTITUTION - PERSONAL RIGHTS - EQUALITY - CRIMINAL LAW - DETENTION IN GARDA CUSTODY UNDER STATUTE FOR EXTENDED PERIOD - WHETHER PERSONAL RIGHTS INFRINGED - WHETHER CONSTITUTING INVIDIOUS DISCRIMINATION - TRIAL - DELAY - WHETHER PREJUDICIAL - DEATH OF WITNESS - Con- stitution, Article 40.1, 40.3 - Offences against the State Act 1939, s.30 The appellants had been arrested and de- tained in Garda custody under s.30 of the 1939 Act on suspicion of involvement in a burglary. In the course of the burglary in question, the occupier of the property had been killed. The appellants were questioned by the Garda in relation to the burglary and killing, as a result of which the appellants made incriminating statements. TJie appel- lants were charged with burglary and mur- der. At their trial in the Central Criminal Court in 1985, the DPP applied to have the burglary charged postponed and the appel- lants were tried on the murder charge only. The trial judge (Barr J) held that, since the offences in question were non-subversive, the detentions under s.30 of the 1939 Act were invalid. He held that the appellants' statements were thus inadmissible and he directed an acquittal. On appeal by the DPP, the Supreme Court held that this finding was not correct: The People v Quilligan and O'Reilly [1987] ILRM 606; [1986] IR 495. However, the Supreme Court declined to order a retrial on the murder charge: The People v Quilligan and O'Reilly (No.2) [ 1989] ILRM 245. The appellants were then tried on the burglary charge in the Central Criminal Court in 1989. The trial judge (Costello J) held that the trials should be allowed to proceed, and on the voir dire he held, having heard the evidence of the appellants and the Gardai involved in their questioning, that the incriminating statements had been volun- tary. The defendants gave evidence in the substantive trial denying participation in the burglary and stated that the incriminating statements were the result of intimidation and threats. In his charge to the jury, the trial judge dealt with the appellants' allegations and told the jury of their function in relation to the veracity of the incriminating state- ments. However, he declined to give a warn- ing that it would be dangerous to convict on the statements without corrofc>orative evi- dence. On appeal to the Supreme Court, the appellants argued that s.30 of the 1939 Act

was unconstitutional and also appealed on the other grounds which had t>een rejected by the trial judge. HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy,- O'Flaherty and Egan JJ) dismissing the consti- tutional claim: (1) s.30 of the 1939 Act did not infringe Article 40.1 because, although it resulted in a discrimination as between one citizen and another by delaying the time when an arrested person is brought t>efore a court, this did not constitute invidious dis- crimination bearing in mind that a person detained under s.30 enjoyed a range of pro- tections also enjoyed by a person detained at common law (see heading 3, t>elow); (2) the Court would not draw any inference as to the possible invalidity of s.30 of the 1939 Act from the mere fact that a statutory provision allowing for up to seven days detention had been enacted in the 1976 Act under the emergency provisions of Article 28.3.3 of the Constitution. In re the Emergency Powers Bill /976 [1977] IR 159 referred to; (3) s.30 of the 1939 Act did not constitute a failure by the State to protect the personal rights of the citizen under Article 40.3 having regard to the protections enjoyed by a person detained under s.30, which included: that an arrest and detention (or extension of the detention period) be based on a bona fide suspicion; that the person be informed of the offence under which he is arrested or detained; that his rights to legal and medical assistance and access to the courts are respected; that he is informed of his right to silence; that he will not be subjected to oppressive questioning; and that he will have the t>enefit of the Judges' Rules. Dicta in The People vQuilligan and O'Reilly [1987] ILRM 606; [1986J IR 495 approved; (4) having regard to the pro- tections enjoyed by a person detained under s.30 of the 1939 Act, it had not been estab- lished that the section constituted a failure to protect the right to silence, assuming that this right was one protected under Article 40.3. HELD further by the Supreme Court: (5) the first appellant had not been prejudiced by the delay between 1985 and 1989 in having the burglary charge dealt with, and it was there- fore not unfair to try him; (6) there were good grounds for having the burglary and murder charges separated in the 1985 trial and this was in no way unfair to the appellants; (7) the appellants could not plead autrefois acquit or res judicata in relation to the 1985 trial or the findings of law made by the trial judge in 1985, since the 1985 verdict had been set aside by the Supreme Court; (8) the trial judge's determination that the appellants' statements were voluntary could not be chal- lenged since it was based on his assessment of the veracity of the Gardai who had ques- tioned the appellants; (9) (Finlay CJ, Hederman and O'Flaherty JJ; McCarthy and Egan JJ dissenting) there was no rule of law requiring a judge to instruct a jury that, where the only evidence consists of an incriminat-

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