The Gazette 1976

AUGUST 1976

GAZETTE

Nevertheless, because of his conspicuous legal acumen, he was briefed as one of the Senior Prosecuting Counsel for the State in criminal trials. Initially, his cultured accent and slightly pedogogic air made him seem out of place in the atmosphere of violence con- jured up by recitals of chicanery and assaults in the Criminal Courts. But he soon proved himself of tough, and tempered mettle, imperturbable, and well fitted for coping with truculent defendants. His phenomenal capacity for long hours of grinding labour a"nd mastery over details ensured that no loose ends were left untied in any prosecutions. And in cross-examination in criminal trials his polite manners and subtle mental processes misled some foolish defendants into assuming that he would be easy to bamboozle, and tempted them into wild lying to their undoing. Obviously, a large number of attributes are desirable in a judge; for instance good brains, experience of the world, knowledge of the corpus juris, courtesy, good health, and a desire to do justice. But of all the qualities the one most needed is, of course, the deter- mination to administer justice according to law. Not only did Mr. Justice Gavan Duffy possess all the requisite qualities, but he also had a judicial tempera- ment, and a sense of public spirit in a high degree He showed skill in the interpretation of enactments; in the balancing of arguments pro and con; and in the elucidation of the shades of proper meaning in the phraseology of statutes. Above all, he sought in his judicial work to postulate a creative philosophy leading to the better development and extension by the Courts of criteria which would govern the interpretation of fundamental legal presumptions, so that the feelings of society that fair dealing, as understood by the ordinary citizen, should be enforced; and anachronisms which caused hardship should be superseded. Frequently, Irish lawyers have complained that the law is a morass of uncertainties; that in a large number of cases all too often there does not appear to be any form of legal redress obtainable because Irish jurisprudence has not kept up with the times; and that at best the applic- ation of the law is merely a blind stumbling from precedent to precedent. This Judge like Lord Denning in England gave a much needed impetus to the slow movement for the modernisation of the Irish forensic system, and overruled many archaic obiter dicta and old court decisions which were clearly repugnant to Irish present day thinking. Even his elevation to the Bench made little change in his voracious appetite for work in pursuit of legal knowledge. He made it a practice to take home to his first class law library the pleadings in important law suits; and to do legal research himself on the matters in dispute disclosed in the pleadings. In consequence, he was able to discuss with Counsel every point of difficulty and obtain their views on them; thereby helping to eliminate minor matters, and spotlighting pointers to the direction in which the actions should be decided. Practising in the Judge's court was a pleasant experience. Invariably, he was gracious to all practitioners; listened to their submissions attentively; but usually tested all doubtful arguments by question- ing them in a way which was in effect veiled cross- examination. If he were sceptical of the worth of some arguments, he took time to consider them patiently before ruling on them. At the conclusion of a trial, irrespective of the result, everybody felt that there had been a most fair and careful hearing. It was unknown for him to refuse any reasonable request made for the convenience of the litigants or Counsel, if it were possible to grant it.

Of all his judgements, the best known are those in the Foyle Fishery case (1948) (never fully reported) in which he made a declaration relating to the public ownership of the fishery, and the Sinn Fein Funds case (Buckley & Ors. v. A.G. [1950]) in which he held that the statute purporting to dispose of the funds was unconstitutional as the proceedings had started. Other important decisions given by him were those in the Irish Aero Club case (IR-1939), Exham v. Beamish (IR-1939), State (Burke) v. Lennon & Anr. (IR-1940), re Kindersley, an Infant (IR-1944), Cook v. Carroll (IR-1945) and the Tilson case (IR- 1951). The judgement in Cook v. Carroll is notable for the fact that it decided that confidential statements made to a priest are privileged. The decision in the Irish Aero Club case has put it beyond doubt that the State is not entitled to priority of payment in respect of moneys due to it, other than taxes and duties. Reports of his judgements which will repay perusal are the Exham and Carroll cases, as they provide good examples of his wide quotation from analogous rules in foreign countries germane to the fields of enquiry in these cases; his command of mitutiae; and his powers of logic. On reading his judgements, one cannot help being impressed by the thoroughness by which he unravelled tangles of fact; his vast amount of research into the usages in other countries in respect of similar issues as those on which he had to adjudicate; the marshalling of the salient features of the law suits; his narrowing down of the true questions for decision; the analysis of precedent court decisions; his deductions of governing principles from such precedents; and the closeness and cogency of the reasoning leading to his conclusions. Ordinarily, a High Court judgment is not the place to look for a felicitous English prose style. Owing to the importance of the matters at stake, an inordinate amount of prolixity and tiresome repetition of different aspects of the same facts is usually necessary to demon- strate the rationale and to avoid ambiguity. These desiderata furnished the pretext for Disraeli's famous quip that the legal mind chiefly displays itself in illus- trating the obvious; explaining the evident, and expatiating on the commonplace. Notwithstanding the difficulties created by the requirements of precision, the prose style of the Judge is too good to be passed over without comment. It will be found that his written utterance is clear and exact, hut contains no frills, no pomposities, or hollow rhetoric. Furthermore, it ha; the laudable qualities of being vigorous, full bodied, and supple, displaying a copious and wide garnered vocabulary with now and then forceful passages delineating in vivid words a convincing exposition of the canons of the law applicable in the ilitigation under consideration. In addition, his use of languge is remark- able for the development, continuity, and smooth flow of his views from one sentence to the next in logical sequence, and the easy transition from one idea to another in paragraphs without abrupt change of sub- ject. The cumulative effect is that of a narrative which holds the reader's attention so that the Judge's mean- ing is conveyed quickly and without difficulty. There- fore, there is never any necessity to try to puzzle out what is being stated or to re-read any part of it. Pos- sibly, however, it could be argued that occasionally his idiom is a little too Johnsonian for present day taste, and that he sometimes uses recondite words rarely met with in modern literature. An example of an extract from Tilson Infants (1951) I .R. will suffice. "The strong language of articles 41 and 42 arrests (Continued on page 134)

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