The Gazette 1983

GAZETTE

PTE

BER 1983

(continued from p. 209)

The State (D.P.P.) v Walsh & Conneelly.

Here the Supreme Court approved the constitution-

ality of a summary trial in a particular case of criminal

contempt. However Henchy J. with whom Griffin and

Kenny J. J. agreed, delivering the majority judgement of

the court entered the

caveat

that, as presently advised,

he believed a jury trial to be the correct mode of trying

factual issues in all major contempt charges in which

they arise.

This line of reasoning would appear to be

applicable also to cases of civil contempt for it was

specifically stated that a judicial policy that in only some

cases should such issues be determined by a jury would

seem to be so arbitrary and discriminatory as not to be

consistent with the equality before the law guaranteed

by Art. 40 of the Constitution. O'Higgins C.J. with

whom Parke J. concurred, did not doubt the existence of

cases where the High Court in its discretion might prefei

and the D.P.P. might be willing to have particular

charges of contempt tried by a jury.

This might occur

where issues of fact arise or where a conflict of

evidence appears. However this was a matter for disc-

ernament according to the particular circumstances and

jury trial was not necessitated by the Constitution.

The State (D.P.P.)

Walsh and Connelly

the

alleged contemnors were leading officials in an

organisation known as the Association for Legal Justice

which was reported in a newspaper article to have con-

demned the imposition of the death penalty in a

particular criminal case as this ran counter to the notion

that violence begot violence. The

gravamen

of the

alleged offence consisted of the following sentence:-

"It was particularly reprehensible because it was pass-

ed by the Special Criminal Court, a Court composed

of Government appointed judges with no judicial

independence, which sat without a jury, and which so

abused the rules of evidence as to make the court akin

to a sentencing tribunal".

This outburst might be viewed as constituting the form

of contempt which falls within the description of

scandalising the court. Such contempt occurs where

wild, unfounded allegations of corruption or

malpractice are made against a court or judge to bring

the administration of justice into disrepute.

The appellants contended that having been proceeded

against on attachment they were persons charged with a

serious criminal offence and that being so charged their

right to trial by jury was guaranteed by Article 38.5 of

the Constitution. TTiey were prepared to accept that in

respect of criminal contempts committed in

facie curiae

summary jurisdiction existed and made a similar

concession in relation to such constructive contempts as

impede, threaten or endanger a fair trial of pending pro-

ceedings. In such instances the courts are bound to act

expeditiously in the interests of justice and this require-

ment of urgent action was the source of a summary

jurisdiction in respect of such contempts. However in

the present case the trial alluded to, had already con-

cluded and thus there could exist no requirement of

urgency to warrant the exercise of a summary jurisdict-

ion by the High Court in deprivation of their

constitutional right to trial by jury.

The Chief Justice did not find this "urgency-as-the-

basis-of -jurisdiction" argument attractive. He said:-

212

"To my mind the power to act summarily in cases of

criminal contempt, if it exists, must extend to all forms

of such contempt: if it exists, whether it should be ex-

ercised in a particular case may well be a matter of

judicial discretion to be decided on the facts and

circumstances applicable. The question to be

determined, however, is whether in the light of the

general directory provisions of Article 38.5 of the

Constitution, the courts have any jurisdiction to try

charges of criminal contempt in the absence of a

jury" 52

O'Higgins C.J. went on to state that a particular pro-

vision of the Constitution must not be construed in

isolation; to do so would be to regard the Constitution

not as one fundamental law but as a series of such laws.

Article 38.5 had to be viewed against the background of

the general scheme of things postulated by the

Constitution. The legal landscape on which the Constit-

ution had been superimposed was also a matter for the

cognisance of the courts. The possession of a power of

summary punishment in relation to contempt of court

was authoritatively declared in

A. G.

O'Kelly

to be the

birthright of every court. Article 34.1 of the Constitution

provided that Justice shall be administered in courts est-

ablished by law by judges appointed in the manner pro-

vided by this Constitution, and save in such special and

limited cases as may be prescribed by law, shall be admin-

istered in public. It was the solemn duty of judges under

the Constitution to see that justice was administered in

the courts. The Chief Justice observed that the imposition

of this duty carried with it, both the power, and the corres-

ponding duty to act in protection of justice if its fair and

effective administration be endangered or threatened.

The judicial power of government was sufficiently ex-

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