The Gazette 1976

N O V E M B E R 1976

G A Z E T T E

ADDRESS TO AUSTRALIAN BAR ON RECENT IRISH CASE LAW, 12 JULY, 1976 by Hugh O'Flaherty, S.C. (Part II)

reached by the High Court of Australia - though in this case, the Court was content to adopt the decision as found by the Privy Council; in this regard it is interesting that Lord Reid pays high tribute to the judgment of the Australian High Court where he says that the whole matter was summarised by Chief Justice Barwick at the end of his judgment in the case — Southern Portland Cement Limited v. Cooper. 1 '* The effect of McNamara's case together with a previous decision of the Supreme Court 20 was to decide that the occupier of premises could not claim exempt- ion from liability on the grounds that the person injured by the occupier's acts or omissions was a tres- passer and that his duty extended beyond the mere duty to act with reckless disregard of the trespasser's presence or of his safety. The test now is: the fact of a danger on the premises having been established, should the defendant reasonably have foreseen that a child trespasser might be injured. Since this was a case where the Supreme Court did not follow a previous decision 21 it might be an appro- priate moment to say something about the doctrine of stare decisis. The Supreme Court first broke from this doctrine in the case of Attorney General v. Ryan's Car Hire Limited 22 on December 11, 1964 and thus pre- ceded the decision of the House of Lords given on July 26, 1966, in the same regard and thus put itself on the same footing as the United States Supreme Court and the ultimate courts of most European countries and of Canada, South Africa and Australia as stated therein by Mr. Justice Kingsmill Moore. 23 However, the power has been rather sparingly exer- cised since then and it has been used in only a few cases — most notably in allowing the State to appeal from a decision of the High Court granting habeas corpus. 24 The decision not to be bound by stare decisis was a symptom of the liberal swing that took place in the Supreme Court from the early nineteen sixties, and which led to many interesting departures. In the criminal law sphere one of the most notable decisions was the necessity for a trial judge to give a stringent warning in the case of visual identification. The People (Attorney General) v. Casey (No. 2) 25 lays down that where the verdict depends substantially on the correctness of an identification the jury's attention should be called in general terms to the fact that in a number of instances such identification has proved erroneous, to the possibilities of mistaking the case before them and to the necessity of caution. Juries are to be told that if their verdict as to the guilt of the prisoner is to depend wholly or substantially on the correctness of such identification they should bear in mind that there have been a number of instances where responsible witnesses, whose honesty was not in question and whose opportunities for observation had been adequate, had made positive identifications on a parade or otherwise, which identifications were sub- sequently proved to be erroneous. Accordingly they should be specially cautious before accepting such evidence in the light of all the circumstances, and with due regard to all the other evidence of the case,

(Part I appeared in the September Gazette, p. 152)

The case of The People (Attorney General) v. Dwyer 16 is, I think, our best example of following the Aus- tralian influence. The facts of the case as stated by Mr. Justice Butler, in giving the majority judgment of the Supreme Court, were that Christy Dwyer was convicted of murder as a result of a street brawl in the Central Criminal Court on the 10th November, 1969. At the trial part of the de- fence was a plea that he had acted in self defence on the occasion of the killing. On the 13th April, 197Q, his appeal was rejected by the Court of Criminal Appeal. The two recognised methods of appeal to the Supreme Court in the case of a criminal conviction are by leave of the Court of Criminal Appeal or the certificate of the Attorney General (now the Director of Public Prosecutions) 17 that the case involves a point of law of exceptional importance. Counsel for the appellant was convinced of the correctness of the Australian decis ; on in R. v. Howe (1958) 100 CLR 448. The practice by which a certificate of the Attorney General is applied for is that the counsel in the case makes a personal application in writing setting out the grounds therefor. The Attorney General was persuaded that there was a point to be argued and certified a point of law as follows : - "Where a person, subjected to a violent and felonious attack, endeavours, by way of self de- fence to prevent the consummation of that attack by force, but in doing so, exercises more force than is necessary but no more than he honestly believes to be necessary in the circumstances, whether such peron is guilty of manslaughter only and not murder". The answer given was in favour of man- slaughter. It was held that the accused's in- tention fails to be tested subjectively and, the Court held, that it would appear logical to con- clude that, if his intention in doing the lawful act was primarily to defend himself, he should not be held to have the necessary intention to kill or cause serious injury. "The result of this view would be that the kill : ng while unlawful, would be manslaughter only. This is the view adopted by the High Court of Aus- tralia in R. v. Howe where the Court upheld the judgment of the Supreme Court of South Australia to the effect that such a case of self defence was 'a case of unlawful killing without malice aforethought, for although the killer may clearly intend to inflict grievious bodily harm on his assailant, and if necessary, to kill, his state of mind is not fully that required to constitute murder'" - per Mr. Jusrice Butler.

On the civil side I would point to the recent Supreme Court case in McNamara, an infant v. E.S.fl. 18 where the Court reached the same conclusion as had been

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