The Gazette 1980

248 / 270

GAZETTE JULY-AUGUST 1980
CERTIORARI
A person detained under section 30
of the Offences Against the State Act
1939 may be validly charged at the
place of detention during his period
of detention under that Section; it is
not necessary that he be first charged
in the District Court.
The Prosecutor (Walsh) had been
arrested on 16 March 1977 pursuant
to Section 30 of the Offences Against
the State Act 1939 in connection
with an armed robbery. This arrest
under Section 30 of the Act of 1939
allowed his detention for a period of
24 hours, but Section 30 also
provided that the period of detention
might be extended for a further
period of 24 hours if an officer of the
Garda Siochana not below the rank
of Superintendent so directed; such a
direction was given, and the
Prosecutor could therefore be legally
detained under the Section for a
maximum of 48 hours from the time
of his arrest on 16 march 1977 to the
same time on 18 March 1977.
Section 30(4) of the Act of 1939
provides that:
"A person detained under the next
preceding sub-section may, at any
time during such detention, be
charged before the District Court
or a Special Criminal Court with
an offence or be released by
direction of an officer of the
Garda Siochana and shall, if not
so charged or released, be released
at the expiration of the detention
authorised by the said sub-
section".
After making a statement of an
incriminating nature to the Gardai
early on 18 March 1977, the
Prosecutor had been taken with two
Guards to a house where the
Prosecutor had stated he had brought
three men who had been involved
in the armed robbery. He was then
returned to the same Garda station
where he had been detained. Later on
the same day, 18 March 1977 at the
Garda station he was formally
charged with armed robbery. On the
same afternoon, before the end of his
permitted detention under Section 30
of the Act of 1939 was reached, he
was brought before the District Court
on that charge. Eventually, on 14
July 1977 he was returned for trial
by the District Court to the Special
Criminal Court.
After more than six months after
the return for trial in July 1977, the
Prosecutor applied on the 9 March
1978 to the High Court for a
conditional order of Certiorari to
quash the District Court Order
returning him for trial, on the ground
that because he was charged with the
robbery, not in Court but in the
Garda Station while detained
pursuant to Section 30 of the Act of
1939, the return for trial was inValid.
The Prosecutor relied on the recent
High Court decision (per Finlay P.)
in The State (Brennan) v. Mahon
(13/2/78 - unreported) where an
absolute order of Certiorari had been
granted to quash an order of return
for trial, where the accused who had
been held under Section 2 of the
Emergency Powers Act 1976 had
been charged in the place of detention
and not in the District Court. The
Prosecutor in the present case wished
to extend that decision to the
provisions of Section 30(4) of the Act
of 1939 which in this respect were
similar to Section 2 of the Act of
1976. However, the High Court
(Costello J.) had refused a conditional
order holding that the Prosecutor was
not in detention pursuant to Section
30 holding that the detention had
ended when he had been taken from
the Garda Station before he was
charged to point out the house to the
Gardai.
The Prosecutor appealed to the
Supreme Court.
Held: (per Henchy J.) that:
(1) As the application for the
Conditional Order had been made
outside the six months time limit
provided for in 0.84 r 10 of the Rules
of the Superior Courts, the
Prosecutor would have to show that
there were exceptional and
compelling reasons why his failure to
move within six months must be
overlooked. In this case he had not
done so, notwithstanding that The
State (Brennan) v. Mahon, (13/2/78)
had been in the meantime decided
and was being relied on.
(2) Despite the interlude of the
journey in the motor car with the two
Gardai on 18 March 1977, the
Prosecutors absence was but a
temporary deviation from the
statutory custody, (and a deviation to
which the Prosecutor had consented)
and when he was brought back to the
Garda Station the correct statutory
detention under Section 30 of the Act
of 1939 had been resumed.
(3) The High Court decision in The
State (Brennan) v. Mahon, that it
was not lawful to charge a person
who was arrested pursuant to the
provisions of Section 2 of the
Emergency Powers Act 1976
otherwise than in a District Court or
a Special Criminal Court, was not a
correct reading of the Section or of
Section 30(4) of the Act of 1939. The
sub-section could not be read as
excluding a power to charge the
detained person before he was
brought to Court. If such an
exclusion was intended, it would have
been expressly stated. The power to
charge the detained person before a
Court before the end of the specified
period of detention is not intended for
any purpose other than to ensure that
detention under the Section may be
terminated before the specified period
(24 hours or 48 hours) had
could not be construed as precluding
the charging of a person before
charging him in Court.
(4) It was therefore unnecessary to
deal with the submission made on
behalf of the Defendant namely that
even if it was not permissible to
charge the Prosecutor other than
before the Court, that the invalidity
of the earlier charging of the
Prosecutor at the place of detention
would not deprive the District Justice
of jurisdiction to deal with the case
when it did come before him,
including making an order returning
the Prosecutor for trial.
Per Griffin J. (in a concurring
judgment):
"If the Oireachtas had intended
that it was not permissible to charge
the person detained at his place of
detention, it seems to me that this
would have been clearly stated in the
sub-section by the use of appropriate
words".
Per O'Higgins CJ. (in a
concurring judgment):
"It is to be noted that the sub-
section does not direct that the
person concerned 'be charged in' the
District Court or Special Criminal
Court. It merely provides that he
shall be charged 'before' either of
these Courts. If, as in the Brennan
case, and in this case, a person is
charged with an offence in the Garda
Station and is then brought before the
District Court or the Special
Criminal Court and evidence is given
in obvious explanation of his being
there, that he had been so charged
with an offence, can it be said that he