247 / 264
GAZETTE
N O V E M B E R
1978
HABEAS CORPUS —
INTERFERENCE WITH RIGHTS
OF PRISONERS
An interference with a prisoner's
right to receive or to send letters does
not render the detention unlawful.
The Prosecutor (Marie Murray)
applied for a Conditional Order of
Habeas Corpus or, in the alternative,
an enquiry under Article 40 of the
Constitution. Both the Prosecutor
and her husband were serving
sentences in different prisons. Under
the Rules for the Government of
Prisons 1947 and the Prison Act
1972 (Military Custody) Regulations
1972, the applicant and her husband
were permitted to write a certain
number of letters to each other and
were also allowed to see each other
six times a year. In July 1978 the
priviliges of the Prosecutor's husband
were withdrawn for a month. The
Prosecutor contended that the
resulting interference with her right to
c ommu n i c a te and r e c e i ve
communication from her husband
amounted to an interference with her
rights such as to make her detention
illegal. She expressly based her claim
on the ground that a convicted
person retained all his rights except
that to liberty.
The High Court (D'Arcy J.) in
refusing the application stated that he
was bound by the decision in
The
State (McDonagh)
v.
Governor of
Mountjoy Prison
(High Court, July
1978, unreported),
(inter alia):
"The stipulation in Article 40(1) of
the Constitution that a citizen may be
deprived of his liberty save 'in
accordance with Law' does not mean
that a convicted person must be
released on Habeas Corpus merely
because of some defect or illegality
attached to his detention. The phrase
'in accordance with Law' means that
there must be such a default of'
fundamental requirements that the
detention may be said to be wanting in
due process of law. For Habeas
Corpus purposes, therefore, it is not
sufficient for the prisioner to show that
there has been a legal error or
impropriety or even that jurisdiction
has been inadvertently exceeded".
Held,
accordingly that the alleged
interference with the Prosecutor's
right to receive and send letters or
visit her husband did not render her
detention unlawful.
The State" (Marie Murray) v.
Governor of Limerick Prison —
High Court (per D'Arcy J.) —
23 August 1978 — unreported.
NATURAL JUSTICE —
CERTIORARI
Where the Maxim Audi Alteram
Partem ("Hear the other party") is
disregarded, Certiorari will follow.
The Prosecutor (Crothers) and his
wife became occupiers of a flat at
Countess Markievicz House, City
Quai, Dublin in May 1975. This flat
was a dwelling provided under the
enablement of the Housing Act 1966
by the Dublin Corporation. The
Prosecutor's wife offered rent and the
Corporation issued receipts bearing
the words "Me s ne R a t e s ".
Eventually a notice to quit and
demand for possession was served by
the Corporation and Prosecutor was
s ummo n ed to t he Du b l in
Metropolitan District Court on 12
December 1975 to show cause why a
warrant under Section 62 of the
Housing Act 1966 should not issue
for delivery by possession of the flat.
The Prosecutor alleged that at the
hearing the District Justice did not
ask him whether he wished to give
evidence or cross-examine the witness
from the Corporation, and he further
alleged that the District Justice stated
that the Corporation would fix him
up with alternative accommodation.
As a result the Prosecutor left the
Court quite satisfied and did not
appeal the Order made by the
District Justice. Subsequently,
however, the Prosecutor and his
family were evicted. The Prosecutor
then applied to the High Court for
and obtained a Conditional Order of
Certiorari.
Held,
(Doyle J.), on the
application to make the Conditional
Order absolute.
(1) That in the circumstances the
evidence of the Prosecutor as to what
happened in the District Court had to
be accepted, as neither the Solicitor
for the Corporation nor the
Corporation rent collector who gave
evidence at the District Court hearing
had a clear recollection of what
actually happened.
(2) That, accordingly, the
Prosecutor was not given an
opportunity to make his case and the
failure to observe the maxim of 'Audi
Alteram Partem' was fatal to the
Order of the District Court. The
contention of the Corporation, that
the Prosecutor had in fact no case to
make, was irrelevant.
(3) That the constitutionality or
otherwise of Section 2 of the Housing
Act 1966 need not be determined in
the present case.
(4) That the Conditional Order of
Certiorari was made absolute.
The State (at the Prosecution of
Seamus Crothers) v. District Justice
James A. Kelly, The Lord Mayor,
Aldermen and Burgesses of Dublin
and the Attorney General — High
Court (per Doyle J.) — 2 October
1978 — unreported.
PRACTICE
Function of Appellate Court in
reviewing findings of fact by Inferior
Court.
The President of the High Court
(Finlay, P.) had found that the
Plaintiffs had falsely represented to
the Defendants that one P.Q. had
lodged in the bank the amount of a
contribution which it had been agreed
he would make to the cost of the
takeover of J. G. Mooney &
Company Limited by P.Q. Holdings
Limited and that the representation
was material to the Defendants'
participation in the takeover ana that
the Defendants were induced, as was
intended by that representation, to
proceed with the takeover. A
question which arose for decision in
the Supreme Court was whether,
regardl ess of any con t r a ry
conclusions which might seem open
on a review of the evidence, it was
competent for the Supreme Court to
set aside any of the findings of fact.
The Supreme Court (in separate
judgments by O'Higgins CJ., with
Butler J. concurring, and by Henchy
J. and Griffin J., and Parke J.)
referred to the Judgment of Holmes
LJ. in the
S.S. Galrlock
1899 2 I.R.
1 at p. 18 and to
Benmax v. Austin
Motor Company
1955 A.C. 370 and
(per O'Higgins C.J. with Butler J.) to
Coughlan v. Cumberland
1898 1 Ch.
D. 704 and to
Montgomerie A
Company Limited
v.
Wallace, James
1904 A.C. 73 and to
Mersey Docks
A Harbour Board v. Proctor
1923
A.C. 253 and (per Henchy & Griffin
J J . with Parke J. concurring) drew
distinctions, firstly, between the
approach of an appellate court to
criminal and civil cases and,
secondly, to the approach to
questions of fact and those of law
and, thirdly, to questions of fact the
answers to which gave a factual
resolution of conflicting oral
testimony and the questions of fact
— the answers to which do not
resolve conflicts but are in the nature