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Supreme Court of Ireland Decisions
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Cite as:  IESC 43
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Judgment Title: Dunne -v- The Governor of Cloverhill Prison
Composition of Court: Denham J., Hardiman J., Geoghegan J., Fennelly J., Kearns J.
Judgment by: Denham J.
Status of Judgment: Approved
THE SUPREME COURT
[Appeal No: 50/2008]Denham J.
The Governor of Cloverhill Prison
Respondent/AppellantJudgment delivered the 21st day of May, 2009 by Denham J.
1. The circumstances of this appeal raise the issue as to whether or not the matter is moot.
2. On the 2nd November, 2007, Eamonn Dunne, "the applicant", was charged with conspiracy to commit a theft contrary to common law. I will refer to this as "the original charge".
3. On the 3rd January, 2008, the applicant was before Cloverhill District Court, an adjourned date, on the original charge, charged with a co-accused of conspiring to commit the crime of theft of cash of an amount of in excess of €900,000. A further extension of time was sought by the prosecution for the service of the Book of Evidence. After hearing submissions the District Judge remanded the applicant in custody for two weeks.
4. On the 7th January, 2008, the applicant sought an inquiry pursuant to Article 40.4.2° of the Constitution.
5. On the 11th January, 2008, the High Court (Edwards J.) ordered the release of the applicant.
6. On the 25th January, 2008 Edwards J. gave his reasons for determining that the applicant was in unlawful detention. These related to s.4B of the Criminal Procedure Act, 1967, as inserted by s.9 of the Criminal Justice Act, 1999, as to the extending of time by the District Court for the service of the Book of Evidence.
7. The Governor of Cloverhill Prison appealed that decision.
8. On the 18th February, 2009, in Dunne v. The Governor of Cloverhill Prison  IESC 11 Kearns J., with whom the other members of the Court concurred, delivered a judgment allowing the appeal. In giving his judgment, Kearns J. stated that:-
"… I do not believe that there is a requirement under s.4B(3) of the Criminal Procedure Act, 1967 that, to confer jurisdiction, a District Judge must have evidence before extending the period of time for service of a Book of Evidence."
It was concluded that no case had been made out for the proposition that the detention of the applicant was unlawful, hence the appeal was allowed.
9. In the meantime the applicant had been back before the District Court on the 17th February, 2008, the original return date, and was sent forward for trial on indictment on the original charge. That is the current situation, the applicant is on bail, pending trial on indictment on the original charge.
10. This appeal is an appeal brought by the Governor of Cloverhill Prison from an order and judgment of the High Court (Peart J.) and relates to a re-arrest of the applicant and to a new charge.
11. This new charge arose after the High Court ordered the release of the applicant on the 11th January, 2008, and after the applicant left the Four Courts, when he was re-arrested and charged with the offence of conspiracy to commit a theft contrary to common law. I shall refer to this as "the new charge". This was the same offence on which the District Court had remanded him in custody prior to his release. The applicant was brought before the District Court on the 12th January, 2008, when he was remanded in custody until the 17th January, 2008.
12. The applicant applied for an inquiry under Article 40.4.2° of the Constitution, which was heard by the High Court (Peart J.) on the 15th January, 2008, when the High Court ordered the applicant's release on the new charge. The High Court first referred to the earlier case brought by the applicant, and then proceeded to deal with the issue of the applicant's re-arrest. Unfortunately, as the learned High Court judge pointed out in his judgment, he did not know the reasons for the earlier release as Edwards J. had not delivered his reasons at that time. This was a very difficult situation for the High Court as it was in fact analysing a situation dependent on a judgment which was not to hand. The High Court ordered the release of the applicant on the new charge.
13. The Governor of Cloverhill Prison has appealed against that order and judgment of the High Court and it is that appeal which is before the Court.
14. Written and oral submissions were made on behalf of the applicant and the Governor of Cloverhill Prison, "the Governor".
15. The applicant is on bail in relation to the original charge and the State informed the Court that it is not seeking to have the applicant remanded in custody.
16. The applicant has been returned for trial on indictment on the original charge.
Decision - a moot
17. This is an appeal from the decision of the High Court (Peart J.) ordering the release of the applicant on the new charge. The applicant was ordered to be and was released by the High
Court, which is the remedy available pursuant to Article 40.4.2° of the Constitution. The applicant is no longer in custody on foot of the new charge. That charge is inoperative. In relation to the new charge there is no live issue remaining between the parties. In the circumstances the issue of the new charge is not justiciable and scarce judicial resources should not be used to advance an academic analysis. In all the circumstances the matter is now a moot.
18. I would dismiss the appeal on the grounds that it is a moot.