Order to leave State or face jail challenged

AN INDIAN student found guilty of assaulting a fellow countryman has brought a legal challenge against a Circuit Court judge’…

AN INDIAN student found guilty of assaulting a fellow countryman has brought a legal challenge against a Circuit Court judge’s order that he leave Ireland or face 18 months in jail.

Yesterday the High Court heard Harminder Singh, an Indian national studying in Ireland, received an 18-month prison sentence at Dublin Circuit Criminal Court, which was suspended on terms including that he leave the country by June 11th and remain outside the country for five years.

The sentence was imposed on Singh, of Ballykelly, Newcastle, Co Dublin, on May 26th last by Judge Patrick McCartan.

The conviction arose out of an assault that occurred in September 2009.

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However, in judicial review proceedings against the Director of Public Prosecutions and the judge, Singh claims the judge was not entitled to impose such a condition, and that the condition was disproportionate.

Singh is now seeking orders from the High Court quashing both the penalty and conviction imposed on him by Judge McCartan.

He is also seeking a declaration that the condition that he must leave the State was unjust, unfair, disproportionate, amounted to a breach of his European and constitutional rights and was made in excess of jurisdiction.

In his action, Singh also claims Judge McCartan was prejudiced against him and had shown bias during the course of the proceedings when the judge allegedly told Singh he had outlived his welcome in Ireland.

He also claims his rights were breached because the judge proceeded to sentence him in the absence of an interpreter.

One was en route to the court when the sentencing occurred.

Kieran Kelly, for Singh, said Judge McCartan had “acted outside his powers,” by imposing a condition that his client leave the State or else face a term of imprisonment.

Counsel said the only penalty prescribed by law for an assault contrary to section three of the Non-Fatal Offences Against the Person Act was a fine or a maximum period of five years’ imprisonment.

Counsel added that his client had a valid visa permitting him to remain in the State. He also said the imposition of the sentence was a breach of the separation of powers.

Counsel added Singh was convicted of assaulting another Indian national, and had claimed he had acted in self-defence.

Singh is originally from Punjab in India, and had been studying and working in Ireland for four years.

Prior to the incident that gave rise to his conviction, his client had never come to the attention of the Garda and had no previous convictions.

It was, he added, “an isolated incident,” and Singh “has not been in trouble since then”.

Counsel further argued that in the circumstances a suspended sentence simpliciterwould have been sufficient.

Leave to bring the action was granted by Mr Justice Gerard Hogan, following an ex-parte (one side only) application to the court.

The judge also granted Singh a stay on the operation of the sentence and conditions pending the determination of the High Court action.

The judge also made the matter returnable to when the courts resume later this month.