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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
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