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GAZETTE
JULY-AUGUST
1980
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.
HABEUS CORPUS AND
CERTIORARI
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,
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: