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GAZE1TE
DECEMBER1977
RECENT IRISH CASES
Summaries ofjudgments prepared by
Walter Beatty, Henry St. John Blake,
John Buckley, Colum Gavan Duffy,
and Michael Staines.
CERTIORARI
CRIMINAL LAW
Section 102 of the Children's Act
1908. Actual evidence that the
accused is "unruly" is essential
before a young person can be
committed to prison.
Martin Holland was convicted in the
Childrens' Court of an assault.
Under Section 102 of the Childrens'
Act 1908 the Court must certify that
a young person (i.e., aged 15-17
years) is "of so unruly a character
that he cannot be detained in a place
of detention provided under this part
of the Ac t . . . " The District Justice,
without hearing any evidence as to
the character of the accused (except
the prosecuting Guard's testimony
that he had no previous convictions),
made the certificate and then
sentenced him to one month in
Mountjoy Jail.
On appeal from an order of
Hamilton J., making absolute a
conditional order of certiorari
quashing the order of the District
Justice,
held
(per Henchy J.)
(1) Before making such a
certificate, the District Justice must
be satisfied that the accused "
is
of so
unruly a character (not that he
has
been so
unruly) that he
cannot be
(not
ought not
to be) detained in the
provided place of detention".
Whereas the facts of the assault
showed that the accused had been on
one occasion violently aggressive,
these facts, unrelated to any evidence
of a behavioural pattern, could not
justify the making of the certificate.
(2) Proceeding by certiorari (and
not by appeal) was the correct
procedure in this case. The District
Justice had, indeed, jurisdiction to
hear the prosecution but the sentence
of imprisonment was based on a
certificate devoid of legal validity
and, therefore, imposed without
jurisdiction.
Per Kenny J. (It is not sufficient that
the evidence establishes that the
young person is of an unruly
character — it must further establish
that he is so unruly that he cannot be
detained in the place of detention.
Since the evidence before the District
Justice did not establish this, the
certificate is invalid and, therefore,
the District Justice went outside her
jurisdiction when she sentenced the
accused to imprisonment. Her order
should, therefore, be quashed by
certiorari.
The State (Holland) v. District
Justice Eileen Kennedy and
Governor, Mountjoy Prison.
Supreme Court (O'Higgins C. J.,
Henchy J. and Kenny J.) —
unreported—26 April, 1977.
NATURAL JUSTICE
Attempt of Trade Union to remove
its Financial General Secretary from
office declared null and void.
The plaintiff Union sought a
declaration that the defendant, who
was its Financial General Secretary
prior to the proceedings, had ceased
to hold the office of Financial
General Secretary of the Union while
the defendant counterclaimed for a
declaration:
(i) That he had been at all material
times and still was validly in office as
the Financial General Secretary of
the Union, and, (ii) That his
purported removal from office was
null and void by reason of the fact
that meetings of the Resident
Executive of the Union and its
Executive Council which ultimately
decided on the defendant's removal
from office were not convened in
accordance with the Rules of the
plaintiff Union and that the
procedures adopted thereat were
unfair and contrary to the principles
of Natural Justice in that (a) the
defendant was not informed of the
charges to be made against him, and,
(b) he was not given an adequate
opportunity of answering the said
charges.
The defendant also claimed
damages for wrongful dismissal.
The evidence indicated that for
some time prior to the 2 March,
1977, that there had been a dispute
between the defendant and the
Resident Executive and the Executive
Council of the plaintiff Union with
regard to the manner in which the
defendant was carrying out his
functions as Financial General
Secretary. At a meeting of the
Resident Executive on the 2 March,
1977, the defendant's position was
discussed and there was a complaint
by officials of the plaintiff
Union with regard to the difficulty
they were having in obtaining a
refund from the defendant, in his
official position, of expenses incurred
by them in the course of their work.
It was proposed and unanimously
approved by those present at that
meeting that a meeting of the
Executive Council would be
convened for the 11 March, 1977,
at which certain charges would be
brought aginst the defendant, and
that the members of the Resident
Executive would attend for the
purpose of supporting the charges.
The defendant was informed by letter
dated the 4 March, 1977, that the
Resident Executive had met on the
2 March, 1977, and the the
defendant was summoned to attend
the next meeting of the Resident
Executive on the 9 March, 1977, to
answer certain charges specified in
the letter such as being absent from
work without notification of his
excuse for three days prior to and
including the 2 March; failing to
up-date the Branch Registers; failing
to supply accounts of the plaintiff
Union for the six previous years to
the Resident Executive and Executive
Council for endorsement; failing to
attend promptly at the plaintiff Union
Office as stipulated under Rule and by
showing contempt, by his conduct at
Executive meetings of the Union. The
defendant was furthermore charged
with attending less than half the
meetings of the Executive over the
previous twelve months and failing to
discharge Union delegation expenses
for a special conference of the
I.C.T.U. held on the 22 February,
1977, in proper time and thereby
causing the Union and its appointed
delegates to be omitted from the
Official I.C.T.U. circular. All these
matters, it was contended, brought the
Union into disrepute.
Hamilton J. confirmed his
satisfaction that the letter of the 4
March was posted to the defendant
at his home on the 5 March, 1977,
but was not delivered until after the
defendant had left to go on holidays
to the United States. He was also
satisfied that a copy of this letter was
delivered personally to the defendant
at his Union office on the 5 March,
1977, between 1.00 p.m. and 1.15 p.m.
The defendant left for the United
.States on the 6 March, 1977, in
accordance with arrangements made
by him prior to the postal receipt of
the letter dated the 4 March, 1977.
The defendant was accordingly not
present at the meetings of the
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