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G A Z E T T E
N O V E M B E R 1976
ADDRESS TO AUSTRALIAN BAR ON
RECENT IRISH CASE LAW, 12 JULY, 1976
by Hugh O'Flaherty, S.C. (Part II)
(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
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,
190