The Gazette 1983

GAZETTE

SEPTEMBER 1983

have been demonstrated by historical scholarship to be

based on historical error. The most authoritative student

of contempt of court has impressively shown the myth of

immemorial usage to be a mere fiction.

Indeed it

seems clear that until at least the late Seventeeth or

early Eighteenth century the English Courts, excepting

the ill-famed Court of Star chamber to which many

approbrious epithets have been applied neither had nor

claimed power to punish contempts committed out of

court by summary process. Prior to this period such

contempts were tried in the normal and regular course of

the criminal law including trial by jury. Then in 1765

Wilmot J. declared in an opinion prepared for delivery

in the Court of King's Bench (but never actually handed

down) that courts had exercised the power to try all

contempts summarily since their creation in the

forgotten past,

a proposition that won uncritical

acceptence in A.

O'Kelly.

Although Wilmot J's

observations were not adopted as the basis for a decision

by an English Court until the case of

Clement

in 1821,

they have exercised a baleful influence on the law of

contempt. While they were subjected to searching

criticism by Fletcher J. of the Court of Common Pleas in

the Irish case

Taafe

Dowes

of 1813, subsequently

they have secured the enthusiastic approval of the Irish

Bench. Historical inaccuracy seems to have been

transformed into constitutional dogma.

The decision in A.

O'Kelly

is open to further

objection. Sullivan P. placed heavy reliance upon

Cox

Hales

and the principle therein contained to the effect

that the mere fact of a general word being used in a

statute does not foreclose all inquiry into the object of

the statute or the mischief which it was intended to

remedy. In some instances statutes have been construed

quite contrary to the letter. Sullivan P. appears to have

been of the opinion that principles of statutory inter-

pretation were equally apposite to the construction of

our Constitution. This assumption was not shared by

Walsh J. in

The State (Browne)

Feran.

There the

learned judge pointed out that what was being construed

Cox

Hales

was a statute and it could not be suggested

that the canons of construction applicable to a statute

are equally applicable to a written Constitution. In the

latter case words, which in their ordinary meaning,

import inclusion or exclusion, cannot be given a

meaning other than their literal meaning save where the

authority for doing so can be found in the Constitution it-

self.

The Constitution represented a new departure in

respect of fundamental principles. The High Court must

mould its own

cursus curiae.

A. G. v Connolly

In A.

Connolly

the

O'Kelly

case was regarded

as a precedent governing the High Court in the

construction of the new Constitution.Article 38.5 had

not taken away the jurisdiction formerly held by the

Court and its predecessors to punish summarily for

criminal contempt. It required clear and unequivocal

language to effect a depritation of this necessary and

inherent jurisdiction. However, it is respectfully

submitted that Gavan Duffy P's interpretation of the

earlier authority is in some respects erroneous. The

learned President stated that Sullivan P. in the

O'Kelly

case considered the nature, origin and purpose of the

jurisdiction and showed that a motion for attachment

had not been regarded as a criminal trial. This was not

the position. On the contrary Sullivan

was prepared

to assume for the purposes of the

O'Kelly

case that the

terms of Article 72 of the Free State Constitution,

literally construed, were sufficient to include

applications to commit for contempt of court.

American Influences

Here the matter rested until the 1970's in this juris-

diction but the intervening period witnessed the

occurence of major developments in the law of contempt

across the Atlantic. In the United States of particular

importance to the question of jurisdiction and procedure

is the right to a jury trial guaranteed by Article 111

Section 2 of the Constitution and by the Sixth

Amendment which binds state courts under the

Fourteenth Amendment. Until comparatively recent

years contempt of court was regarded as falling outside

the protection afforded by the Constitution. In

U.S.

Green

Frankfurter J. adverted to the fact that in at least

two score cases in the U.S. Supreme Court not to

mention the vast mass of decisions in the lower Federal

Courts the power to punish summarily had been

accepted without question. In

U.S.

Barnett^

the

proceedings were fought against the background of an

attempt by the coloured student James Meredith to

enter the University of Mississippi. A policy of

deliberate non-compliance with court orders on the part

of the State Governor led to a contempt citation in

respect of which the Supreme Court held that the

petitioner was not entitled to trial by jury. The decision

was that of a bare majority of the Court and doubts were

expressed by members of the majority as to whether

penalties in excess of those provided for petty offences

could be imposed without affording an opportunity for a

jury trial.

This

caveat

was seized upon in

Bloom

Illinois

where a lawyer filed a spurious will for probate. This

was charged as a criminal contempt and an Illinois State

Court denied a request for a jury trial. On an appeal to

the Supreme Court from a sentence of 2 years

imprisonment. White J., delivering the opinion of the

court, agreed with the

Barnett

decision insofar as it held

that

"Criminal contempt, intrinsicially and aside from the

particular penalty imposed, was not deemed a serious

offence requiring the protection of the constitutional

guarantees of the right to jury trial".

He added however

"...that the traditional rule is constitutionally infirm

insofar as it permits other than petty contempts to be

tried without honoring a demand for a jury trial. ..[In]

our view, dispensing with the jury in the trial of con-

tempts subjected to severe punishment represents an

unacceptable construction of the Constitution".

Cheff\ SchnackenbergV

the Supreme Court has

already indicated that it would limit the length of

summary punishment for criminal contempt through the

exercise of its general supervisory power to review

proceedings in Federal Courts. The rationale of the right

to jury trial in contempt cases was succintly stated in

Bloom

Illinois.

"[In] terms of those considerations which make the

right to jury trial fundamental in criminal cases, there

181