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IESC 91 ECLI:IE:SC:2001:91 AI generated

IESC 91 · Supreme Court

Case Number IESC 91
Court / Authority
Jurisdiction Ireland (IE)
Decision Date
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I fully agree with the judgment which has been given by the Chief Justice, both as to the lawfulness of the detention of the Applicant and as to the fact that the appeal should be allowed. I write very briefly only on the question of the mootness of the point

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IESC 91 · Supreme Court: I write very briefly only on the question of the mootness of the point

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[2001] IESC 91

THE SUPREME COURT

191/00

Keane C.J.

Murray J.

Hardiman J

Geoghegan J.

Fennelly J

BETWEEN

PHILIP CLARKE

APPLICANT/RESPONDENT

AND

THE MEMBER IN CHARGE OF TERENURE GARDA STATION

RESPONDENT/APPELLANT

JUDGMENT of FENNELLY J. delivered the 1st day of November, 2001.

1. I fully agree with the judgment which has been given by the Chief Justice, both as to the lawfulness of the detention of the

Applicant and as to the fact that the appeal should be allowed. I write very briefly only on the question of the mootness of the point

decided. Clearly any consideration of this issue is, in the context of the present appeal obiter. As the Chief Justice points out the

correctness of the decision of this Court in Re Zwann [1981] I.R. 395 was not argued. It would not be appropriate to deliver a

dissenting judgment.

2. It seems at least possible that the judgment in Zwann is susceptible to misunderstanding. The Chief Justice is undoubtedly correct

when he says that the passage quoted by him from page 169 of the judgment of Walsh J in State (Browne) v Feran [1967] I.R. 147

had no application to the facts which were before the court in Zwann. That passage deals with the power of the Court to ensure the

recommittal to detention of a person who has been erroneously released. No such question arose in Zwann. It is not clear, however,

that O’Higgins C.J., at page 401 of his judgment had that passage in mind, though it certainly commences on page 169, which is the

page citation given in the judgment. It seems to me that O’Higgins C.J. may have been referring to an earlier passage in the judgment

of Walsh J, where the latter learned judge had treated at length the proper appellate jurisdiction of the Supreme Court, the actual

point to which the judgment in Zwann was directed.

3. Whether the passage in Zwann is liable to misinterpretation - and admittedly the citation is ambiguous - the point of substance

remains. I agree that it merits considered treatment on another occasion. On that future occasion, it may be opportune to have

regard to the case of Condon v Minister for Labour [1981] I.R. 62.