[2018] IEHC 466
THE HIGH COURT
[RECORD NO. 2018 12 SSP]
WM
APPLICANT
AND
THE GOVERNOR OF MIDLANDS PRISON
RESPONDENT
JUDGMENT of Mr. Justice Denis McDonald delivered on the 31st day of July 2018
1. The applicant (who is currently a prisoner in custody in the Portlaoise Midlands Prison (“the prison”) seeks an order ofhabeas corpuspursuant to Article 40.4.2 of the Constitution.
2. The relevant facts are set out in the application. On 8 July 2013 the applicant was convicted (following a jury trial) of aggravated sexual assault upon a female person who is identified in the application and of intentionally or recklessly causing serious harm to her. He was sentenced to thirteen years’ imprisonment for each offence to run concurrently from 9 January 2012.
3. It is clear from the application that the applicant has already had the benefit of an appeal to the Court of Appeal. By a judgment delivered on 15 May 2018, the Court of Appeal rejected all four grounds of appeal relied upon by the applicant and dismissed his appeal against his conviction. His conviction therefore stands. I note that he has applied for leave to appeal to the Supreme Court but no determination has yet been made by the Supreme Court as to whether to grant him leave to appeal. Even if leave is granted by that court, that does not affect the decision of the Court of Appeal unless his appeal is subsequently successful.
4. In these circumstances, the applicant is quite clearly lawfully detained in prison. In circumstances where his appeal against conviction has been dismissed, he is required to serve out his sentence.
5. In his application forhabeas corpus, the applicant contends that his detention is illegal because the complainant has been missing (so he says) for over 29 months, which he contends means that the Director of Public Prosecutions does not have a complainant “to stand over her statement and evidence”.
6. The applicant says that he is attempting to have the conviction overturned so that he can have a retrial
“as there was a large number of questions that I wanted to put to her which was not put to her at my trial, I ended up sacking my legal team at trial for incompetence, of course there won’t now be a retrial because the complainant is missing. So the charges should be dropped. This point I have raised with you is not included in my appeal.”
7. In my view, the applicant is wholly mistaken. Whether the complainant is still available or not is entirely irrelevant. She was available at the original trial which resulted in a verdict against the applicant. The applicant has been convicted of an offence. His conviction has been upheld. He therefore has no right to a retrial.
8. In all of the circumstances, I am quite satisfied that the application by the applicant must be dismissed.
Denis McDonald
