The Gazette 1983

GAZETTE

MARCH 1983

appeal to the Supreme Court or he could appeal to the

Court of Criminal Appeal. He óould not do both (unless,

of course, he obtained the Section 29 Certificate

mentioned earlier). Walsh J. had a more jaundiced view of

the jurisdiction of the Court of Criminal Appeal. He saw it

as being a Court of limited appellate jurisdiction. Article

34.4.4° provides that no law must be enacted excepting

constitutional questions from the appellate jurisdiction of

the Supreme Court. Therefore, argued Walsh J., a

decision of the Court of Criminal Appeal in a case which

involved a constitutional point cannot be final and such

decision could be appealed again to the Supreme Court.

The Court of Criminal Appeal therefore has concurrent

jurisdiction with the Supreme Court only in relation to

appeals which do not involve constitutional points.

Conmey decision and the Appeal process

Both of these judgments (with which Doyle J.

concurred) are, I submit, based on a narrow interpretation

of one sub-section in the Constitution. Each constitutional

provision ought, I submit, to be read in the light of all of the

other constitutional articles, especially when other

constitutional rights may be in conflict with it. Secondly,

though less importantly, each article ought to be examined

in conjunction with existing laws and judicial precedents.

As Henchy J. has stated

"any single constitutional right

or power is but a component in the ensemble of

interconnected and interacting provisions which must be

brought into play as part of a large composition, and which

must be given such an integral interpretation as will fit it

harmoniously into the general constitutional order and

modulation." He continued "No single constitutional

provision (particularly one designed to safeguard personal

liberty or the social order) may be isolated and construed

with undeviating literalness". Apart from conflicting with

several other constitutional guarantees (this aspect will be

dealt with later), the Conmey decision was the source of

some confusion in the whole appeal process.

As neither

the Circuit Criminal Court nor the Special Criminal Court

are part of the High Court the decision had no application

to cases tried before those Courts. This resulted in a total

anomaly as at that time, the Circuit Court was empowered

to try exactly the same types of cases (with a couple of

exceptions) as the Central Criminal Court. These

exceptions related to murder, attempted murder and

treason. The Special Criminal Court could in certain

circumstances try cases of murder. Therefore, two

accused persons charged with the same offence arising

from the same incident could find themselves before

different Courts, and if convicted, were subject to a

different appeal process. For example, an accused

convicted in the Central Criminal Court could appeal

directly to the Supreme Court, whereas an accused

convicted in the Special Criminal Court could only get his

appeal before the Supreme Court if he obtained the so-

called "Section 29 Certificate". These certificates were

rarely given

and could only be granted if the Court of

Criminal Appeal or else the Attorney General (or now the

Director of Public Prosecutions) certified that a decision

involved a point of law of exceptional public interest and

also

that it was desirable in the public interest that an

appeal be taken to the Supreme Court. For these reasons it

was generally hoped that the Supreme Court would clarify

the position as soon as possible.

Succeeding cases showed that the Court was prepared

to continue in its new direction. The case of

D.P.P. v.

Walsh

was the first direct appeal to the Supreme Court

since "

Conmey's

" case. The legal representatives of all

the parties concerned had furnished submissions to the

Court contending that the Court had jurisdiction to hear

the appeal and eách of the Judges gave hisjudgment on the

basis that they had jurisdiction. Similar judgment was

given in

D.P.P.

Byrne

on the same day. The position

was somewhat different in the case of

D.P.P.

Christopher Anthony Lynch.

O'Higgins C.J. reiterated

his judgment in "Conmey". Walsh J. did not deal with the

jurisdictional issue. Kenny J. however specifically

reserved his views on the point. The existance of a right of

direct appeal logically necessitated that the D.P.P. would

have a right to appeal against an acquittal in the Central

Criminal Court. This would be "remarkable" and would

in his opinion "result in a far reaching change in our law

which I am convinced those who enacted the Constitution

never envisaged".

Finally, in D.P.P. v. Shaw

Griffin J

(with whom Henchy, Parke and Kenny J.J. concurred)

cast doubt over the new departure.

D.P.P. v O'Shea

It seemed inevitable therefore that the D.P.P. would

attempt to appeal an acquittal in the Central Criminal

Court to the Supreme Court. Notices of appeal were duly

filed in several cases.

It is ironic that the D.P.P. was

prepared to file such appeals as in

"Conmey,"

Counsel for

his predecessor, the A.G., described such right of appeal

as being both "novel and undesirable".

However, one of

the appeals came up for judgment and in

D.P.P.

Patrick

Leo O'Shea

the Supreme Court by a majority of 3 to 2

upheld the D.P.P.'s power and held that they had

jurisdiction to hear such appeal.

O'Shea had been acquitted by direction in the Central

Criminal Court of various charges relating to the alleged

possession of firearms, ammunition and the controlled

drug, cannabis. There had been a great deal of public

interest in the case and the acquittal by direction caused

surprise in many quarters. The Supreme Court initially

gave judgment on the preliminary issue as to whether it

had jurisdiction to hear the appeal. O'Higgins C.J., Walsh

and Hederman J.J. held that it had. Dissenting judgments

were delivered by Henchy J and Finlay J.

O'Higgins C.J. relied heavily on the judgments

delivered in

"Conmey".

He accepted that these judgments

were not directly concerned with appeals against

acquittals, but the "plain words"

used in Article 34.4.3°

must be read as granting that right. He referred also to the

decision in the

State (Browne)

Feran

where, on the

basis of Article 34.4.3°, the Supreme Court had held that

an absolute order of Habeas Corpus could be appealed

despite the fact that there was a long established practice

that no such appeal could lie. It follows, he said, "that

existing laws or formerly accepted legal principles or

practices cannot be invoked to alter, restrict or qualify the

plain words used in the Constitution unless the authority

for so doing derives from the Constitution itself'.

Walsh J. based his decision almost wholly on

"Conmey".

However, like O'Higgins C.J. much of his

judgment dealt with the arguments against the new

departure. Hederman J. while agreeing with the judgments

of his two colleagues, specifically limited his concurrence