The High Court has rejected Michael O’Callaghan’s application for immediate release from Cork Prison, finding that his detention remained in accordance with law. The decision did not determine whether his conviction should be overturned on appeal.
Mr Justice Hogan delivered the judgment on 20 July 2012 in an inquiry under Article 40.4.2 of the Constitution. O’Callaghan was serving a 10-year sentence after a jury convicted him in the Circuit Court in Cork of firearm-possession offences connected with robbery and a count of robbery.
The judgment says the offences arose from a raid on Blackpool Post Office on 26 March 2009. Gardaí recovered a balaclava that a witness had seen one of the robbers discard. During a search of O’Callaghan’s dwelling the following day, they recovered a cigarette butt he had smoked. DNA from the butt matched DNA from the balaclava. After that match, a detective arrested O’Callaghan at his mother’s home. He later made a cautioned statement about his movements on the day of the robbery, which the prosecution relied on at trial.
In February 2012, the Supreme Court ruled in *Damache v Director of Public Prosecutions* that the statutory search provision used in the case was unconstitutional. O’Callaghan argued that the ruling made his conviction, and therefore his detention, unlawful. His appeal to the Court of Criminal Appeal was still pending, and his original appeal notice did not raise the search issue. His counsel said they intended to seek permission to add it.
For the Article 40 inquiry, the parties agreed that the judge could assume for argument’s sake that O’Callaghan could rely on *Damache*. The judge said he was not deciding whether the search was unconstitutional in this case, whether the appeal grounds should be extended, or whether the appeal would succeed. He concluded that, even on the assumed basis, the possible exclusion of the DNA evidence did not make the search so central to the conviction that detention amounted to a fundamental failure of due process. He also noted that the custody statement did not appear to have played a central role at trial.
The application raised a second issue: whether the Director of Public Prosecutions had consented to trial of the firearms offence in the Circuit Court. Although the return for trial had no written endorsement recording that direction, prosecuting counsel told the Circuit Court that evidence of consent had been given in the District Court. The trial judge said it need not be repeated. Justice Hogan concluded that the Circuit Court judge was satisfied the required consent had been given and rejected this argument.
The High Court therefore rejected the Article 40.4.2 application for release. It left any challenge to the conviction’s legal merits for the Court of Criminal Appeal.