The Gazette 1976

GAZETTE

E/J

1976

RECENT IRISH CASES

CONTEMPT OF COURT

Conditional Order of sequestrat-

ion made against periodical

company and of attachment

against its editor in respect of

letters criticising Special Criminal

Court.

Appeal against refusal of Finlay

P. to issue a conditional order of

attachment against Hibernia Nat-

ional Review Ltd. and its editor,

John Mulcahy for publishing letters

from Mr. O'Donohoe and Mr.

Henry dealing with the trial and

conviction of Noel and Marie

Murray by the Special Criminal

Court. Mr. O'Donohoe, of the Stu-

dent's Christian Movement in Trin-

ity College, had stated that "they

were tried without jury and virtual-

ly without evidence in circumstances

which, to say the very least, cast

strong doubts on the machinations

of both Gardai and Government to

procure a guilty verdict." Mr. Henry

suggested that the Special Criminal

Court conducted a travesty of a

trial, that they did not give the ac-

cused the benefit of the doubt, and

that the only evidence against the

accused was their own statements.

It is quite valid criticism to de-

bate the retention of the death pen-

alty, any provision of the Offences

against the State Acts, and the es-

tablishment of the Special Criminal

Court. In the prosecution case,

there was evidence fully reported in

the press that a gun was found in

Mr. Murray's house, for which he

accepted responsibility, and that the

bullet which killed the Garda was

fired from this gun. Accordingly

Mr. Henry's statement that the only

evidence against the Murrays was

their statements was a complete

misrepresentation of the evidence,

and thus a contempt of Court.

The Court will make no order

against Mr. O'Donohoe, but will

make a conditional order of seques-

tration against the Hibernia Co.,

and a conditional order of attach-

ment against Mr. Mulcahy. The

company and Mr. Mulcahy will

have 21 days from the date of the

service of the order to show cause

why the conditional order should

not be made absolute.

The State (Director of Public

Prosecutions) v. Hibernia Nat-

ional Review Ltd., Mulcahy and

O'Donohoe — Supreme Court

(O'Higgins C. J., Kenny and Parke

JJ. per Kenny J. — unreported—

14th July, 1976.

CRIMINAL LAW —

PRACTICE

A Circuit Judge, on appeal from

the District Court, may not im-

pose a sentence of detention in

St. Patrick's Institution to fol-

low a sentence of imprisonment.

This appeal is a test case. The

question is whether a Circuit Court

Judge, when hearing an appeal from

a District Court in a criminal case,

is bound by the same sentencing

limitations imposed on the District

Court by S. 5 of the Criminal Jus-

tice Act 1951. The effect of this

Section is that, where two or more

sentences passed by the District

Court are ordered to run consec-

utively, the aggregate term of im-

prisonment shall not exceed twelve

months.

The prosecutor in these Certiorari

proceedings was convicted and sen-

tenced in the District Court on 18th

February, *976 in respect of 14

offences. He was sentenced to 12

months imprisonment in respect of

12 offences, and to 3 months each

in respect of the other 2 offences,

all sentences to run concurrently.

He appealed to the Circuit Court,

which set aside the 2 concurrent

sentences of 12 months imprison-

ment, which were accordingly

affirmed by the Circuit Court on 6th

July, 1976.

Apart from these sentences, White

had been convicted on 25th August,

1975, on a charge of assault, and

sentenced to 12 months detention

in St. Patrick's Institution, as he was

under 17 years of age then. On ap-

peal to the Circuit Court the sen-

tence was affirmed on 12th March,

1976, but Judge Martin ordered

that this sentence was to start to run

from the expiration of the cumul-

ative sentence of 12 months im-

prisonment in Mountjoy Jail impos-

ed on 18th February, 1976.

The applicant applied for an order

of Certiorari to quash the order

made by Circuit Judge Martin, on

the ground that such order was

made without jurisdiction, as being

in breach of the sentencing limitat-

ion set out by S. 5 of the Criminal

Justice Act 1951. McMahon J. duly

granted this order of Certiorari and

quashed the sentence of detention in

St. Patrick's Institution. An appeal

has been taken to try to reverse

McMahon J.'s decision.

There is no doubt that, if Judge

Martin had imposed a sentence of

imprisonment which was to run

from the termination of the cumul-

ative term of 12 months imprison-

ment, it would have breached the

limitation set by S. 5 of the Crim-

inal Justice Act 1951, which applies

as much to District Court Appeals

in the Circuit Court as to proceed-

ings in the District Court.

However a sentence of detention

in St. Patrick's is not classified as

imprisonment but is a separate and

distinct form of penal detention in-

stituted by the Criminal Justice Act

1960. When the offender came be-

fore Judge Martin, he was already

in Mountjoy Prison serving the

concurrent sentences to which he

had been sentenced on 18th Feb-

ruary, '976. In those circumstances,

the overlaping sentence of 12

months detention in St. Patrick's

could not stand, as such a sentence

was allowable only in lieu of im-

prisonment, and the Judge had no

power to make the order he did, as

S. 13 of the Criminal Justice Act

1960 only empowers detention in

St. Patrick's in lieu of penal servit-

ude and imprisonment. The purpose

of St. Patrick's which replaces the

former Borstal is a special unit for

young male offenders between 16

and 21 years, which aims at their

reformation and the prevention of

crime, while prisons exist primarily

for the penal detention of convicted

criminals

Another effect of Judge Martin's

Order was that, having served a

sentence in Mountjoy Prison, the

accused would subsequently be a

fit subject for St. Patrick's. No

Court has jurisdiction to make such

an Order. Accordingly McMahon

J.'s Order that a Certiorari be issued

is affirmed, and the appeal is dis-

missed.

The State (Richard White) v.

Circuit Judge Martin—Supreme

Court (Henchy, Griffin and Parke

JJ.) per Mcnchy J. — unreported—

21st October, 1976.

DAMAGES

Plaintiff living in uninhabitable

house entitled to damages for

inconvenience, and for loss due

to increase in price.

The plaintiff and her family had

gone into occupation of a house

which the defendant had built for

her. This house was shortly after-

wards found to have serious defects,

and subsequently became to all in-

tents and purposes uninhabitable.

The plaintiff then sued the builder

defendant, and a settlement was

reached between the parties on 10th