The Gazette 1983

GAZETTE

MARCH 1983

The Power of the Prosecution

to Appeal Acquittals

Michael Staines, Solicitor

6 C T

HERE is nothing more settled in our law t h a t . ..

A if a person be once in peril in a criminal case, that

is, if he be once tried before a Court having jurisdiction to

hear and determine, then if there be a determination of

acquittal, the matter cannot be brought up a second time

for adjudication."

This pronouncement by Palles C.B in

G. S. & W.

Railway Company

Gooding

succinctly sets out a

fundamental rule of Criminal Law that has been accepted

without question in all common law jurisdictions.

Accepted, that is, until the 2nd Npvember 1982. On that

date in a case

of D.P.P. v. O'Shea,

the Supreme Court

overruled the precedents of over a century, and held that it

had jurisdiction to hear an appeal brought by the Director

of Public Prosecutions against an acquittal in the Central

Criminal Court.

There can be no doubt that all of the judicial precedents

and decisions on the point up to 1975 heavily favoured the

view propounded by Palles C.B. In

Duncan,

Lord Coleridge observed that such a practice "has been

settled for centuries". Other English and American

decisions quoted by Henchy J. in his dissenting opinion in

"O'Shea" point to the fact that the principle originated in

Greek and Roman times and has been followed in

common law jurisdictions ever since. Finlay P. in his

dissenting judgment in "O'Shea" pointed out that there is

not a single instance of a decision over a period of a

hundred years allowing the prosecution to appeal an

acquittal.

The respect for this principle is shown very clearly in

the case of

The State (A. G.)

Judge Binchy

In this case,

the Trial Judge directed the jury in a criminal case to find

the accused not guilty on the grounds that the Prosecution

had failed to prove the Order returning the accused for

trial. This decision was, in fact, an incorrect interpretation

of the law. The High Court nonetheless refused to grant an

absolute Order of Certiorari quashing his decision. The

Attorney General appealed this order to the Supreme

Court. It accepted that the Trial Judge had incorrectly

directed the Jury but nonetheless, held that it had no

jurisdiction to, in effect, overrule the verdict of acquittal.

This was despite the fact that the "acquittal" was on

(incorrect) jurisdictional grounds and not on the facts. As

O'Dalaigh J. stated (at page 416) " . . . Where the jury's

verdict as recorded is a verdict of "not guilty" simpliciter,

this Court should act on the verdict for what it says. It is

entirely without precedent to go behind such a verdict, and

it is now too late to create one".

People (A.G.) v. Conmey

Despite this injunction, a later Supreme Court took the

first steps towards creating such a precedent in the case of

The People (A.G.)

Conmey.

Conmey had been

convicted of manslaughter before a Judge and Jury in the

Central Criminal Court, but had been allowed leave to

appeal to the Court of Criminal Appeal. His appeal to that

Court was dismissed. He did

not

then apply to the Court

for a Certificate under Section 29 of the Courts of Justice

Act 1924, which, if granted, would have allowed him to

appeal to the Supreme Court. However, three years after

his original conviction and one year after his appeal was

refused, Conmey applied to the Attorney General for such

a certificate. His application was refused. He then applied

to the Supreme Court seeking an enlargement of time to

serve a Notice of Appeal to the Supreme Court. All five

members of the Supreme Court held that such

enlargement of time should not be granted. However,

despite the fact that the Court in effect decided that they

had no jurisdiction to decide on the Appeal (as initially it

was out of time), they went on to rule on the various points

contained in his Notice of Appeal. In order to do this, they

had firstly to decide on the question of whether an accused

person could appeal directly to the Supreme Court. The

majority, O'Higgins C.J., Walsh and Doyle J.J. held that

he could, and in so holding, prised open a gap in the

fundamental rule expounded by Palles C.B.

The Judgments of the majority were based on Article

34.4.3° of the Constitution. Under this sub-section, the

Supreme Court has "with such exceptions and subject to

such regulations as may be prescribed by law" appellate

jurisdiction "from all decisions of the High Court". The

Central Criminal Court is, in fact, the High Court

exercising its criminal jurisdiction.

The Court must be

regarded as consisting of the Trial Judge and Jury. Any

verdict, therefore, is a decision of the High Court, and

therefore, under the sub-section, appealable. The

Legislature had, the majority conceded, enacted statutory

regulations governing the appeal process (for example the

setting up of a specific Court to deal with appeals) but they

held that these regulations did not have the effect of

excepting from the appellate jurisdiction of the Supreme

Court. Indeed if these regulations did so except, they

would be in danger of being declared unconstitutional or

violating the constitutional right of appeal to the Supreme

Court. O'Higgins C.J. was of the opinion that the

establishment of the Court of Criminal Appeal served

merely to provide an accused convicted in the Central

Criminal Court with a choice. He could avail of a direct