The Gazette 1976

N O V E M B E R 1976

G A Z E T T E

and they must feel satisfied beyond reasonable doubt of the correctness of the identification before they are at liberty to act upon it. You will be aware that this has been the subject of a great deal of discussion in England and elsewhere, for many years. As a result of the increasing unease caused by miscarriages of justice that had come to light the British Home Secretary appointed Lord Devlin to lead an inquiry into iden- t'fication evidence. The report has appeared recently. 20 In the case of The People (Attorney General) v. O'Callaghan 27 the Supreme Court narrowed the grounds on which bail could be refused to two viz., the likelihood that the accused would not stand his trial and the likelihood of his interference with wit- nesses if allowed bail. It was specifically decided that bail could not be refused merely because there was a likelihood of the commission of further offences while on bail and it was held that that was a form of pre- ventive detention. Mr. Justice Walsh said (at p. 516 of the report:- "In this country it would be quite contrary to the concept of personal liberty enshrined in the Con- stitution that any person should be punished in this respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances care- fully spelled out by the (Parliament) and then only to secure the preservation of public peace and order for the public safety and the preservation of the State in the time of national emergency or in some situation akin to that". moment the concept of "loitering with intent" and whether on a charge or motion to attach ror contempt of Court an accused should be entitled to a jury - and, indeed, the whole concept of what should be embraced by the notion of contempt of Court - are on the fringes of judicial consideration here and in this regard, too, I believe, that there is a rich lode of Australian authority. Turning to the civil side, we retarn juries to try civil cases where the amount of the cla : m is likely to exceed £2,000 and the right is confined to cases of negligence, nuisance, defamation and the like. There is an appeal to the Supreme Court if the findings of the jury on the Lability issue are unwarranted or un- reasonable. There can also be an appeal as regards damages if they are such (being either too high or too low) as no reasonable jury, properly directed, should award. Furthermore, the Supreme Court has power either to order a re-trial on any or some issue or, itself, to make findings. Increasingly, it is exercising its power to substitute a different award from that given by the jury where the expense of the re-trial would be out of proportion to the amounts involved: Section 96 of the Courts of Jurt ; ce Act, 1924, (No. 10 of 1924) permits the Court to enter "such judgment as it con- siders proper". As regards the assessment of damages, the Supreme Court has laid down repeatedly 28 that where there is a substantial element of future loss of earnings in- volved in any claim, the evidence of an actuary is not Those I would single out as the outstanding develop- ments in the criminal law in that period. At the

merely desirable but necessary. It is immaterial whether the prospective losses are in respect of a long period or in respect of a short period, and whether the period is already commenced or whether it will arise at some stage in the future. The appropriate actuarial evidence is necessary in all these cases to enable the jury to arrive at a reasonably accurate mathemathical computation of the present value of the actual loss which they will find will be incurred. 29 In a case where there is a diminution of earn : ngs, then that is the amount to be calculated and evidence can be called from an employer or a person familiar with the employment situation to state what the plaintiff's potential earning capacity would be if he could get a job. 30 Until this year juries in this country were in practice composed exclusively of men. There was also a prop- erty qualificarion. While women were eligible to act they had to apply to be put on the register and, need- less to say, many did not avail of that "privilege". However, two ladies challenged the constitutionality of the relevant legislation. The Supreme Court in a decis : on delivered on the 12th December, 1975 31 laid down that the absence of women from juries was unconstitutional. As Mr. Justice Henchy said:- "Firstly, it fails the test of representat'veness because it means that some fifty per cent of the adult population will never be included in the jury lists. Secondly, and of even greater importance, that narrowed cho : ce means that a woman's experience, understanding and general attitude will form no part in the jury processes leading to a verdict. Whatever may have been the position at Common Law, or under statute up to recent times, it is incompatible with the necessary diffusion of rights and duties in the modern democratic society that important public decis'ons - such as voting, or jury verdicts involving life or liberty - should be made by male citizens only. What is nvssing in de- cisions so made is not easy to define, but reason and experience show that such decisions are not calculated to lead to a sense of general acceptability, or to carry an acceptable degree of representativeness, or to have the

SAINT LUKE'S CANCER RESEARCH FUND

Gifts or legacies to assist this Fund are most gratefully recived by the Secretary, Esther Byrne, at "Oakland", Highfield Road, Ratbgar Dublin 6. Telephone 976491. This Fund does not employ canvassers or collectors and is not associated with any other body in fund raising.

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