Supreme Court dismisses appeal as moot because applicant is on bail and new charge is inoperative.

THE SUPREME COURT

[Appeal No: 50/2008]

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

Between/

Eamonn Dunne

Applicant/Respondent

and

The Governor of Cloverhill Prison

Respondent/Appellant

Judgment 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 [2009] 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.