The Gazette 1971

tional requirement of trial by jury in all criminal offences

except minor offences tried in the district court.

The invalid provision is one which sought to punish

a witness who refused to testify or produce documents

or did anything which, if it were in a court, would

amount to contempt of court.

The effect of the judgment also renders unconstitu-

tional similar or identical provisions in the Tribunals of

Inquiry (Evidence) Act, 1921 (under which such in-

quiries as the

7 Days", the S.S.R. Shares and the

Locke Tribunal were held—the Restrictive Trade Prac-

tices Act, 1923, the Solicitors' Acts, the Control of

Prices Act, 1937, and the Mineral Development Act,

1940).

On the other hand, the court found to be unexcep-

tionable the procedure set out in the Local Govern-

ment Act 1941 and the Local Government (Planning

and Development) Act, 1963.

Dealing with another aspect of the appeal the Chief

Justice, Mr. Justice Walsh, Mr. Justice Budd and Mr.

Justice Fitzgerald held that Mr. Haughey had been

wrongly denied the right to have Chief Superintendent

Fleming cross-examined.

Criminal Charge

Giving the judgment of the court on the constitutional

issue, the Chief Justice said that the major question

raised by this appeal was the validity of Section 3 (4) of

the Committee of Public Accounts of Dail Eireann

(Privilege and Procedure) Act, 1970, having regard to

the provisions of Article 38 of the Constitution. The

relevant parts of Article 38 were in sections two and

five which, read together, provided that no person

should be tried on any criminal charge without a jury,

save for minor offences which might be tried in courts

of summary jurisdiction.

Regarding Section 3 (4) of the Act, the Chief Justice

said that the penalty authorised for the offence which

was in question in this case was such penalty as could

be imposed for contempt of the High Court. Contempt

of court was a Common Law misdemeanour and as

such was punishable by both imprisonment and fine at

discretion, that was, without statutory limit.

The offence which Section 3 (4) had created was a

non-minor offence. The sentence imposed by the High

Court was six months imprisonment and this would be

within the range of penalty appropriate in the case of a

minor offence. The present case was not a contempt of

court case, but an ordinary criminal prosecution. The

Public Accounts Committee had departed from the

strict wording of the section which spoke of "certifying

the offence" and, instead, certified that an offence had

been committed by the witness.

Judicial Function

The trial of a criminal offence was an exercise of

judicial power and was a function of the courts, not of

a committee of the Legislature. The Committee of

Public Accounts was not a court and its members were

not judges.

The Constitution of Ireland was founded on the

doctrine of the tripartite division of the powers of

government—legislative, executive and judicial. For a

statute to confer on a committee of the Legislature a

power to try a criminal offence would be repugnant to

the Constitution and invalid and a conviction by such

committee and any sentence pursuant thereto could not

stand.

Moreover, the courts could not, under the Constitu-

tion, be used as appendages or auxiliaries to enforce

the purported convictions of other tribunals. The Cons-

titution vested the judicial power of government solely

in the courts and reserved exclusively to the courts the

power to try persons on criminal charges. Trial, con-

viction and sentence were indivisible parts of the exer-

cise of this power.

The Chief Justice said : "The impugned sub-section

does not purport to make the offence here in question

'contempt of court'; it does no more than direct that

the offence—an ordinary criminal offence—shall be

punished in like manner as if the offender had been

guilty of contempt of court. That is to say, it defines

the punishment of the offence by reference to the

punishment of contempt of Court of the High Court.

"Moreover, it would not be competent for the

Oireachtas to declare contempt of a committee of the

Oireachtas to be contempt of the High Court. This is

an equation that could not be made under the doctrine

of the tripartite separation of the powers of govern-

ment."

Trial by Jury

The jurisdiction of the High Court to try criminal

offences was in accordance with the provisions of

Article 38, section 5, a jurisdiction to try them only with

a jury. Mr. Haughey was tried summarily.

This concluded the judgment of the Supreme Court

on the constitutionality of the Act. The Chief Justice

then delivered his judgment on questions which were

independent of the constitutionality of the Act. Mr.

Justice Walsh and Mr. Justice Budd agreed with the

Chief Justice's judgment.

Dealing with Mr. Haughey's objections to part of the

Committee's terms of reference, the Chief Justice said

the examination of the expenditure of monies belonging

to the Irish Red Cross Society, not being money granted

by the Dail to meet public expenditure, was not a

matter which, as such, fell within the jurisdiction of the

Committee of Public Accounts.

Beyond the Scope

If, however, monies issued from the Dail Vote, were

lodged in a bank account and Irish Red Cross Society

monies were transferred to that account, forming a

mixed fund, then for the purpose of segregating the

funds the expenditure of the monies of the Irish Red

Cross Society might incidentally be disclosed but, upon

the monies being duly segregated, any further examina-

tion into the expenditure into the Irish Red Cross

Society monies would be outside the functions of the

Committee of Public Accounts as defined in Standing

Order 127.

Mr. Haughey, he said, had also objected to any

examination whatsoever into the expenditure of the

grant-in-aid even though conducted within the terms

of Standing Order 127 on the ground that the Standing

Orders relative to Public Business had not been adopted

by the Dail after the 1937 Constitution.

The Chief Justice said it was surprising that the new

Dail did not formally adopt a new body of Standing

Orders after the Constitution came into force on Decem-

ber 29th, 1937, and had not since done so. Instead the

new House, it appeared, had continued to operate under

the Standing Orders of the old Dáil Eireann, subject

to amendment.

In his opinion the Committee had authority to ad-

minister an oath.

In a criminal trial evidence must be given orally; a

statute may authorise otherwise but the Act in this

instance had made no exceptions. The High Court,

therefore, should not have allowed the afRdavid evi-

dence of the Chairman of the Committee.

Mr. Haughey, in his opinion, was wrongly denied the

right to cross-examine.