460 / 736
dity of the scheme was granted—as well an injunction
restraining the Board from submitting the scheme
to
the Minister for confirmation.
Dunraven
(Limerick)
Estates
Co.
v.
The
Commissioners
of
Public Works — O'Keeffe
P.,
Unreported — 6th March, 1970.
Costs
Costs can be awarded by High Court in case of
Acquittal in criminal trial.
The High Court, in a trial on a criminal indictment
may order the Attorney-General
to pay costs
to an
accused person who has been acquitted by the jury at
that trial-
On 14th August 1965, 6 Defendants were returned
for trial to the Circuit Court (subsequently transferred
to the Central Criminal Court) on various charges of
conspiracy to steal and of larceny from Dunne's Stores.
The first trial was held before McLoughlin J. in April
1966. but it proved abortive. The second trial was held
before Kenny J. and, after a hearing lasting 39 days,
the 6 defendant girls were found not guilty. Counsel
for defendants applied to Mr. Justice Kenny for an
order that the Attorney General should be directed to
pay the costs of the defence. The apDlication was re
fused, save
in respect of nine days hearing for the
defendant Brady, and two days hearing for the defen
dant Dillon. who alone have appealed in
this case.
As no law has been passed since the enactment of the
Constitution in 1937 which excludes the right of appeal
in respect of any order as
to costs made by a High
Court Judge whether exercising civil or criminal juris
diction,
the Attorney-General can bring
the present
appeal by virtue of Art. 34 (2) of the Constitution,
without any regard to Section 52 of the Judicature
Act 1877, Any
jurisdiction of the High Court addi
tional
to
the original
jurisdiction conferred by
the
jurisdiction conferred by the constitution, is vested by
Statute. It follows
that any question of costs
rela
ting to such additional jurisdiction can only be regulated
on statutory authority. Kenny J. was right in stating
that S. 22 of the Courts of Justice Act 1924 which
gives the rule making authority power to make rules
to provide for "liability to costs" confers upon
the
Court, when such rules are made, the necessary statu
tory authority to deal with the liability of the parties
in respect of costs.
Order 28 of
the High Court Rules 1926 arising
from
the Courts of Justice Act 1924, while dealing
with costs, made no provision for criminal costs, but
the rules as
to costs
in existence before 1924,
if not
inconsistent with the Court of Justice Act 1924. were
to be applicable to costs taxed after that Act had come
into force. At no time between 1924 and 1961, when
the former Courts of Saorstat Eireann ceased to exist,
was any order brought in dealing with criminal costs;
only section 5
of
the Courts of Justice Act
1928
provided that where the Court of Criminal Appeal re
versed a conviction and directed a new trial the costs
of
the new
trial should normally be borne by
the
State. As was pointed out in The People v. Harte—
(1946) I.R., this Section gave no power to the Court
to make any order as
to
the costs of the first trial
The present wording of Section 14
(2) of the Courts
(Supplemental Provisions) Act 1961 which states that
the jurisdiction exercisable by
the High Court shall
be
regulated as
regards practice and procedure,
in
cluding liability for costs, in accordance with Rules of
Court, and. in the event of no rule being provided,
shall be exercizable as far as possible in accordance with
the former rules, is not limited to the ordinary juris
diction of
the High Court but clearly
includes the
wide original jurisdiction vested in the High Court by
Article 34 of the Constitution. Since 1924, the Judi
cature Act of 1877 has been of historical interest only
for purposes of reference and accordingly the current
Order 99
relating
to costs
in
the Superior Courts
Rules 1962 owes nothing to the corresponding Sections
of the Judicature Act. For present purposes, the only
important statutory authority
is
S
14
(2)
and
in
order 99 alread" cited,
this Section does not speci
fically exlude criminal jurisdiction.
The State (The Minister for Lands) v. Judge Sealy—
C19391 T.R.— correctly decided that the words "any
proceedings
in
the Court" contained
in
the Circuit
Court Rules 1932 were sufficient
to
include all pro
ceedings of a civil or criminal nature in
the Circuit
Court. It follows that Rule 1, save sub-Rules 3 and
4, of Order 99 of the Superior Court Rules 1962
is
?Dplicr>b!e to the trial of a criminal charge by indict
ment in
the His'h Court, consequently
the principle
enunciated by Kennv T
as to awarding costs in criminal
proceedings was correct.
I Appeal dismissed by the Full Supreme Court. Fitz
gerald J. dissenting.
The People
(Attorney-General)
v. Nuala Bell—
Supreme Court—Unreported 27th March 1969-
Evidence
The Supreme Court has
full power
to
take oral
evidence.
The main purpose of the Guardianship of Infants
Act is to give to both parents of an infant equal rights
in guardianship matters. In doing so, this Act nrovided
a statutory expression of the rights already guaranteed
by
the Constitution. Section 6 stated the equality of
the parents and recognised them as the guardians of
the
infant—and no Court can nullify
this. Under
Sect. 11
it is only where the parents are not residing
together that the custody of the infant may be con
sidered by the Court. Even if one of the parents is to
be deprived of the custody, total or partial, of an infant,
such parent can continue to exercise the rights of a
guardian and should be consulted in all matters rela
ting to the religious, moral, intellectual, physical and
social welfare of the infant. Any order which the Court
makes will only be
invoked when judicially satisfied
that the welfare of the child requires that the wishes
of
the parents
should
be
overuled—this order
is
consequently interlocutory because
the particular cir
cumstances may change from time to time. In the case
of young children, in the absence of agreement between
the parents, it behoves the Court to exercise a continuous
supervision during their infancy.
The appellate
jurisdiction of
the Supreme Court
from all decisions of
the High Court
is
conferred
directly by Article 34 of the Constitution and it fol
lows, that the scope, extent and procedure of the appeal
is normally one for that Court to consider.
As
the High Court referred
to
in Art. 34 of the
Constitution only came into existence in 1961,
there
cannot be any question
that
the present Supreme
Court should be circumscribed by decisions
limiting
its appellate
jurisdiction from decisions of the High
Court established in 1961.
The power of
the Supreme Court
to
take addit
ional evidence in order to determine the anoeal is in
herent in Ihe Court by virtue of its establishment, and
8