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Diana Shanahan, on charges arising out of the
operations of Shanahans' Stamps Auctions Ltd.,
Dun Laoghaire, cannot take place.
Mr. Justice Davitt, delivering a reserved judgment,
dismissed an application by the Attorney-General to
have set aside a conditional order obtained by Mrs.
Shanahan prohibiting Judge Conroy from trying
Mrs. Shanahan on the charges, and setting aside the
order of the Attorney-General returning her for
trial; notwithstanding that informations had been
refused by a district justice; and setting aside a
direction of the Chief Clerk of the Dublin District
Court, for her to attend for her trial.
Mr. Justice Davitt made the conditional order
absolute, and allowed costs
to Mrs. Shanahan,
Glenageary, Co. Dublin.
Mr. Justice Davitt said that if the Attorney-
General could, within the terms of the Constitution,
be empowered to reverse such a decision of the
District Court, then he, and anyone else, could be
empowered constitutionally to reverse any judicial
decision of any court. If the Attorney-General could
do what he had done in this case the results would be
far reaching indeed. The Courts could be rendered
impotent;
and if their efficacy were to disappear
there would cease to be any reality in the constitu–
tional guarantees as to life, person or property.
Any decision of the Courts that a person had not
been tried in due course of law, or that he was being
held in unlawful custody, or that his property had
been illegally appropriated by the State, could be
nullified.
The Constitution itself could be deprived of any
efficacy, and would cease to have any reality since
any decision of the Supreme Court or the High
Court restraining Members of the Executive from
exceeding their constitutional powers, or declaring
an enactment of the Oireachtas to be repugnant to
the Constitution and therefore invalid, could be set
at naught.
Mr Justice Davitt reviewed the events from the
arrest of Mrs. Shanahan on May zyth, 1960, on
charges of conspiracy
to defraud,
fraudulent
conversion and obtaining money by false pretences,
to the refusal of informations by the District Justice
and the order of the Attorney-General of March z8th
last directing that she be sent for trial to the Circuit
Court on a charge of conspiracy to defraud, and five
charges of fraudulent conversion.
Mr. Justice Davitt said he had come to the
conclusion that in receiving or refusing informations
on the preliminary investigation of an indictable
offence the District Court was exercising the judicial
power of the State and administering justice within
the meaning of the Articles of the Constitution.
If section 6z of the 1936 Act had required the
Attorney-General before making any such direction
to consider the evidence contained in the depositions
taken in the District Court, and to be of the opinion
that it disclosed
zprimafacie
case against the accused
person such as would have been sufficient to put the
accused person on his or her trial, then it would have
placed him in a position exactly similar to that of the
District Justice;
and it could have been rightly
contended
that in making a direction in such
circumstances the Attorney-General would be doing
something which he could not do constitutionally,
namely, exercise the judicial powers of the State.
As had been pointed out, the section did nothing
of the kind.
It enabled the Attorney-General to
reverse the decision of the District Court and it gave
him that power absolutely and without reservation
or qualification of any kind. It was to be presumed
that the legislature, when entrusting the holder of a
great public office with such a power, felt justified in
thinking that it would never be abused.
That power, said Mr. Justice Davitt, had seldom
been exercised and he felt sure that on the rare
occasions it had been exercised the Attorney-General
had acted judicially and had decided to make the
necessary direction only after careful consideration
of the depositions and when he had been of the
opinion that they disclosed a
prima facie
case against
the accused person and he had been satisfied that the
District Court had erred in refusing informations.
Nevertheless,
the power given was
absolute,
unqualified and, as far as the provisions of the
section went, did not have to be exercised judicially.
As far as the section was concerned the Attorney-
General need not even read the depositions; hear
submission by or on behalf of the accused;
see or
hear witnesses; and he might even be satisfied that
the decision of the District Court was right; neverthe–
less he had the power to reverse it and direct that the
case be sent for trial. It was difficult to imagine a
power which could be less judicial. He did not think
that when making a direction under .the section the
Attorney-General could be said to be exercising the
judicial power of the State.
That was, however, by no means the end of the
matter, continued Mr. Justice Davitt.
If he was
correct in holding as he did, that when refusing
informations
the District Court was making a
judicial decision in exercise of its criminal jurisdiction,
exercising
the judicial power of the State and
administering justice within the meaning of Article
34 (i) of the Constitution, then any attempt on the
part of the Executive to reverse such a decision was
"an unwarrantable interference . .
. with the operat–
ions of the Courts in a purely judicial domain".
It was just as much an unwarrantable interference
as was the enactment bv the Oireachtas of the Sinn