The Gazette 1975

fell 33 feet to the ground and was severely injured.

In his charge to the jury, Murnaghan J. told them that

they had to be satisfied of the guilt of the accused,

and he equated "satisfied" with "beyond reasonable

doubt".

Until 1949, judges in criminal trials invariably had

told the jury for 150 years that the prosecution had to

prove the guilt of the accused beyond reasonable doubt.

Since then, there have been many judgments in Eng-

land (hat are difficult to reconcile, and subtle dis-

tinctions have been made of being "sure" or "satisfied"

of the prisoner's guilt. The Court considers that the

departure from the time honoured formula was un-

fortunate. Having considered many precedents on the

subject including

Lawrence

v R.

— (1933) A.C. —

Woolmington

— (1935) A.C., and

Mancini

(1941) 3

All E.R. 272 and the High Court of Australia decisions

Thomas

R . _ ( 1 9 6 0 ) 102 C.L.R. 5 8 4—a nd

Dawson v R.

— (1961) 106 C.L.R.I. — the Court said

that the correct charge to a jury is that they must be

satisfied beyond reasonable doubt of the guilt of the

accused. It is also essential that the jury should be

told that the accused should be entitled to the benefit

of the doubt. Wh en two views on any part of the crse

are possible on the evidence, they should adopt that

which is favourable to the accused unless the State has

established another beyond reasonable doubt. It is not

correct to state that being satisfied means the same

thing as beyond a reasonable doubt. No attempt was

made to explain this distinction. As the error related

to a vital matter, the conviction will be set aside, and

new trial ordered.

The People (A.—G.) v Byrne, McGregor and

O'Callaghan

— Court of Criminal Appeal (Fitzgerald

C. J., Kenny and Butler JJ.) per Kenny J. — unreported

— 21st November, 1973.

Due to fraudulent divorce, first wife is entitled

to the succession of her husband's estate, to the

exclusion of the second wife.

The facts in this case have been fully set out in the

March 1974 Gazette at p.55 It will be recalled that

Kenny J., in June 1973 allowed the application of the

first wife, Alice to succeed to her husband's estate

in preference to the second wife, Lydia, as the second

marriage was not valid, because the first wife had

fraudulently divorced her husband as a result of duress.

The real point of the second wife's appeal is that the

evidence tendered by and on behalf of Alice in sup-

Port of the claim that Alice and her husband were not

t any time domiciled in England at the time of the

alleged divorce proceedings in 1958 should not have

been received by Kenny J. on the ground that the

plaintiff was estopped from giving evidence. The basis

a s that, having obtained a dissolution of marriage,

fhe should not now be heard to say that this dissolut-

ton was invalid for want of jurisdiction in the English

Court that granted it.

Per

Walsh

J . :—In

this State, there is no judicial

Process available to dissolve marriage. The net question

is whether the marriage between Alice and her husband

was a valid subsisting marriage in Irish law when he

died in Spain in April, 1972. There is a principle of Pri-

vate International Law by which Irish courts would

recognise decrees of dissolution of marriage granted

by the Courts of another country wheere the parties

were domiciled there at the time; this principle is still

part of the Common Law in Ireland. Art. 41 (3) (3) of

the Constitution appears to mean that the Oireachtas

would have power by legislation to define what for-

eign judicial decrees of dissolution of marriage shall

or shall not be recognised in our Courts as legally

changing the status of the parties. Our law contains

a great deal more than Statute Law, as well as of the

doctrines of the Common Law, which were created

by Judges, and in due course come to be modified, if

not entirely abandoned, by Judges. The Common Law

exists independently of Statute Law, save to the extent

to which it is modified by Statute, nor can the Com-

mon law modify or dilute any provision of the Con-

stitution.

There is no dispute in this case but that the domicile

of the husband was at all times Irish, which he never

abandoned as far as Alice was concerned. During the

subsistence of a marriage, a wife's domicile remains

the same as that of her husband. In Ireland, certain

Constitutional Rights may accrue to a woman by virtue

of her position of being a wife. The matter cannot

therefore by any rules of evidence be left in a position

of doubt, nor could the Courts countenance a doctrine

of estoppel if existing, that a person should be estopped

from saying that he or she is the husband or wife as

the case may be, when in law the person making that

claim has that status. It is beyond doubt that Alice was

the wife of Henry Gaffney at his death, as the English

Court would not have granted the decree of divorce if

it had known the true facts. Consequently the purport-

ed dissolution of marriage was made without jurisdict-

ion and is of no effect in Irish law.

Per Henchy

J.:—The

defendant, Lydia did contend

that the evidence heard

de bene esse

at the trial before

Kenny J as to the circumstances of the divorce in Eng-

land were inadmissa'ble. The argument against the re-

ception of the evidence is that, as Alice was the moving

party as the petitioner for the divorce, she is estopped

by the record from impugning the correctness of what

she put on record in getting the divorce decree — i.e

that she and her husband were domiciled in England.

This was a falsehood that misled the English Court

into assuming a divorce jurisdiction, which the absence

of residence or domicile withheld from it. If it is shown

that the Court had no jurisdictional competence to

make the order, such an order is anullity, and is incap-

able of supporting an estoppel of record. The Comity of

Courts under Private International Law does not require

or permit recognition of decisions given, intentionally

or unintentionally, in disregard of jurisdictional com-

petence. It is impossible to hold that Alice approbated

the divorce decree when the act of approbation relied

on was not her free voluntary act.

Per Griffin J.:—The question then arises as tc

whether in the absence of proceedings to set aside the

divorce judgment in England, the Irish Court should

investigate whether the English Court had jurisdiction

151