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GAZETTE
JULY-AUGUST
1980
"And I did adjudge that evidence
of Dr. E. H. that due to illness (the
Prosecutor) could not appear in
court. Might be fit for court in
three months. Remand 12/1/79 at
10.30 a.m."
Also on 6 November, 1978, the
Prosecutor was granted a Condi-
tional Order of Habeas Corpus ad
subjiciendum, directed to the first
Respondent, the director of the
Central mental Hospital.
It was argued on behalf of the
Prosecutor that the confinement
authorised by the Order of the
Minister for Justice of 12 May 1975
was expressed to be for the duration
only of the remand in custody to 15
May 1975, directed by the District
Court Order of 9 May 1975; that in
that respect the order of the Minister
conformed precisely to the terms of
Section 13 of the 1875 Act as
restricted and adapted in accordance
with the judgment of the Supreme
Court in
The State ("C")
v.
The
Minister for Justice,
[1967] I.R.
106, at pp. 113 and 123; that the
order of 13 October 1978, was defec-
tive in that it did not specify the place
of detention for the period of remand,
and was made in excess of jurisdic-
tion insofar as it purported to
authorise the detention to be in the
Central Mental Hospital or any-
where other than in a prison; that the
effect of Section 13 of the 1875 Act,
as construed by the Supreme Court
in
The State ("C") v. The Minister
for Justice
(supra) was that a new and
further order under Section 13 was
necessary in respect of each period of
remand, provided such remand be
"for further examination"; that, on
the authority of
The State ("C") v.
Daly,
11977] I.R. 312, the District
Justice had no authority to commit
the Prosecutor to the Central Mental
Hospital for detention there and that
his order of 13 October 1978 could
not be a sufficient warrant for the
continued detention of the Prose-
cutor in that hospital.
It was argued on behalf of the
Respondents that the District Court
Order of 13 October 1978 and
preceding orders had been made
prusuant to Section 24 of the
Criminal Procedure Act, 1967, the
effect of which section was that the
District Justice, when continuing the
remand in custody of the Prosecutor,
had to adopt as the place of
continued detention the place where
the Prosecutor happened to be when,
because of illness, he could not attend
in court, and that the District Justice
did not need to specify the place of
detention save to effect a change.
Held
(per Gannon J.):
(1) That the District Court Order
of 13 October 1978 was not bad on
its face and was not made without or
in excess of jurisdiction, as that order
of remand made pursuant to Section
24(4) of the Criminal Procedure Act
1967 was not an adjudication of a
judicial nature but was adminis-
trative only and none of the grounds
of objection to that order were
pertinent to such an administrative
order.
Per Gannon J.
"The provision of a place for
detention of a person under an
order of commital by the court,
whether as a convicted person or
as a person awaiting trial follow-
ing a determination that there is,
prima facie, evidence to justify
holding a trial, is a function of the
executive authority of the State. I
do not think an order of the
District Justice is bad merely on
the grounds that it does not
specify the place of detention, but
it may be bad if it should direct the
detention to be in a place not per-
mitted by law."
At no time was the District Justice
required to, nor did he, in fact, either
determine the nature or effect of
evidence in support of the charge, or
determine whether the Prosecutor
was "unfit to plead" under Section
207 of the Mental Treatment Act
1945 — both of which would have
been judicial functions.
Per Gannon
J.
"A decision as to whether a
person is "unfit to plead" is a
judicial decision founded on
medical evidence and is not a
medical decision. The determina-
tion of that issue is a judicial
function which should be per-
formed in a judicial manner upon
proper notice to the Prosecutor
with proper opportunity for him, if
required, to be adequately repre-
sented and should not be post-
poned indefinitely at the instance
initially of the Minister for Justice
and thereafter by medical
officers."
The case shown was allowed and the
conditional order of certiorari was
discharged.
(2) That, as the only warrant for
his authority offered by the director
of the Central Mental Hospital (first
respondent) for the detention there of
the Prosecutor was the order of the
Minister for Justice made on the 12
May 1975, and, as that ministerial
order was effective only for the
limited period (i.e. until the next
remand on 15 May 1975) stated in it,
and, as no further or subsequent
order had been made by the Minister,
there
was no valid or sufficient
warrant of authority for detention by
the director and the continued
detention of the Prosecutor there had
not been justified in law. The pur-
ported cause shown against the
conditional order of Habeas Corpus
was disallowed and an order for the
release of the Prosecutor pursuant to
Article 40.4.2. of the Constitution
issued.
The State (Caseley) v. Daly and
O'Sullivan - High Court (per
Gannon J.) - 19 February 1979—
unreported.
CONTRACT OF EMPLOYMENT
An assurance given as an element in
a "package" settlement of a claim for
increased remuneration dependent on
the outcome of other employees'
negotiations then being determined
by the Labour Court formed part of a
binding Contract between the
employee and the employer through
his Union which negotiated the settle-
ment.
The Plaintiff was an experimental
officer in the employment of the
Defendant and one of a group
classified as "technicians" for the
purposes of his conditions of employ-
ment.
In early 1970 a claim for
increased remuneration for a two
year period up to 1st April, 1972,
was made and negotiated by officers
of the AUEW (TASS) of which
Union the Plaintiff was a member.
When these direct negotiations broke
down the parties met under the
auspices of the conciliation depart-
ment of the Labour Court. Negotia-
tions then proceeded between the
parties by way of correspondence,