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

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-