39 / 346
GAZETTE
MARCH 1983
to the matters raised on the preliminary issue. There
remains, he said, "important matters of substance and
procedure which can only be decided by this Court upon
the subsequent hearing of that appeal".
22
Both the dissenting Judges pointed out that the
judgments in Conmey could only be read as mere
obiter
dictae.
Henchy J. in a scathing attack on "
Conmey"
pointed out that (a) the judgments delivered were on a
matter not then before the Court (as it had refused
Conmey's application for enlargement), (b) Conmey did
not, in fact, appeal directly to the Supreme Court, and (c)
his "appeal was not against an acquittal. Their judgments
should then be seen, said Henchy J., as " . . . no more than
peripheral observations desiring of course of all due
respect but not binding on this or any other Court".
23
Notwithstanding this, the majority were prepared to base
their judgment on the authority of
"Conmey".
It is
difficult, I submit, not to sympathise with the view of
Henchy J. in this instance. Reading "
Conmey
" one is
immediately struck by the fact that one is witnessing not
only "judicial legislation", but judicial legislation in a
vacuum. The decision is based on hypothetical facts.
Despite recommendations contained in the Seventh
Interim Report of the Committee on Court Practice and
Procedure (chaired by Judge Walsh)
24
the Oireachtas had
failed to seriously interfere in the appeal process. The
Supreme Court utilised their half opportunity in
"Conmey
" to bring about the changes they desired.
Right to trial by jury
Finlay J based his dissent on the grounds that the
putative right of direct appeal seriously conflicted with
another constitutional right — the right to trial by jury
under Article 38.5. This right had been discussed at length
in De Burca's case
25
where some of the essential
ingredients of such form of trial were enumerated. Finlay
P. saw one of these "essential ingredients"
26
as being " . . .
the immunity of the verdict of "not guilty" arrived at
within its jurisdiction and without corruption from appeal
to any appellate tribunal".
26
He extracted this ingredient
from a century of rules and precedents. Henchy J. agreed.
In a long passage
27
he sets out the arguments and reasons
underpinning the right of trial by jury and later stated "If a
jury's verdict of acquittal were held to be . . .inconclusive,
the constitutional right to trial by jury would be an
unreliable weapon in the armoury of personal liberty".
28
Neither O'Higgins C.J. nor Walsh J. were in agreement
with these viewpoints. Both of them initially pointed out
that the instant case was an appeal against an acquittal by
direction.
In practical terms therefore, the jury were not
free to make up their own minds — they were bound to
follow the direction of the trial Judge. However, neither
Judge was prepared to confine his decision to appeals
against acquittals by direction. Walsh J. submitted that an
acquittal by a jury obtained by improper means such as
corruption or coercion of the jury should not be allowed
stand. Therefore, he stated, (arguing of course from
extreme examples), it cannot be said that "non-
appealability" is one of the essential characteristics of
Jury trial. O'Higgins CJ . declared that even if the jury
were completely free to decide on guilt or innocence, their
decision could be overturned.
It is this insistance by the majority that all acquittals are
possibly liable to reversal that will cause practitioners and
their clients a great deal of worry. Judges on appeal merely
read the evidence from a typed transcript. The jury, on the
other hand, have the opportunity of seeing the various
witnesses and of assessing their veracity and disposition.
A transcript cannot record the demeanour of a witness and
yet this is often of vital importance in enabling a decision
to be made. Notwithstanding this, the Supreme Court
have now taken to themselves the power to, in effect,
overrule the decision of 12 jurymen. As such a situation
was never contemplated, there are no procedural rules and,
more importantly, no procedural safeguards to govern the
exercise of this power. Have the Supreme Court the power
to order a re-trial?
29
Will they take unto themselves the
power to substitute a verdict of guilty for one of acquittal?
O'Higgins C.J. attempted to allay these fears. "From a
practical viewpoint" he stated, "this Court will not be
concerned with verdicts of acquittal properly arrived at by
a jury on the merits. Its jurisdiction will only be invoked
where a mistrial or a non-trial has taken place as a result of
an erroneous ruling or direction by a judge."
30
However,
as earlier stated, the basis of the judgment of the majority
was that
all
acquittals could be appealed. Therefore, this
statement amounts to a self imposed limitation on a wider
power — there is nothing to prevent the Court in a
suitable case relaxing or suspending the limitation.
Secondly the decision of the jury must be arrived at
"properly" and "on the merits" — this can only mean
that the Supreme Court will be empowered to reverse a
decision of a jury if the Supreme Court feel that the Jury
did not act "properly" or if they feel the accused should
have been convicted. All criminal practitioners have met
cases where accused persons have been acquitted byjuries
where there seemed to have been overwhelming evidence
against them. It would, I submit, be the very antithesis of
the constitutional right to trial byjury ifthe Supreme Court
could reverse such decisions. The substitution by the
Supreme Court of a verdict of guilty for one of acquittal is
not as far-fetched as it might seem. In a case of
Morgentaler
v.
The Queen
31
the Canadian Supreme Court
did just that in a jurisdiction where the Legislative had
enacted that the Supreme Court could hear appeals
against acquittals.
Criticisms of mqority decision
Henchy J. also criticised the decision of the majority on
other grounds. He gave examples of other decisions of the
High Court which are not appealable. He quoted English
and American judgments acknowledging the age-long
existence of the concepts of "double jeopardy" and
"autrefois acquit". Like Finlay P., he argued that this
putative constitutional right conflicted with other
constitutional rights. Apart from the right to trial by jury,
he also discussed the equality provisions of article 40.1.
and personal rights provisions under article 40.3. Since
the passing of the Courts Act 1981, the only offences
which can be sent forward for trial to the Central Criminal
Court are murder, attempted murder and treason.
32
All
other offences are triable on indictment before the Circuit
Criminal Court or in certain circumstances, the Special
Criminal Court. It is difficult to point to any "differences
of capacity, physical and moral, and of sociál function"
between different accused convicted in each of the three
different courts which would bring their differences in
31