The Gazette 1983

GAZETTE

MARCH 1983

treatment on Appeal within the ambit of the "saving

clause" in Article 40.1. Furthermore, how can the life and

person of an acquitted accused be protected and

vindicated as is required by Article 40.3. if, as Henchy J.

states, he can be vexed with the question of his guilt or

innocence again and again? For that reason alone, an

acquittal ought to be final.

Article 34.4.3°

The final criticism of the "O'Shea" decision is based on

the very wording of article 34.4.3° itself. The Legislature

is empowered under that sub-section to prescribe

exceptions and make regulations curtailing the appellate

jurisdiction of the Supreme Court. The original Court of

Criminal Appeal was set up in 1924.

The present Court

was established in 1961.

Its decisions are expressed to

be final and unappealable. Until

"Conmey",

with possibly

two exceptions

neither the Attorney General nor

defence practitioners ever sought (or perhaps ever

thought) to by-pass this Court and proceed directly to the

Supreme Court. In some circumstances, it was felt that the

Supreme Court ought to have jurisdiction to rule on a

particular point and so the Legislature had enacted

Section 29 of the Courts of Justice Act 1924. If a

Certificate was granted under this Section, an appellant

could appeal on to the Supreme Court. There was nothing

specific in this section preventing the A.G. appealing

against an acquittal in the Court of Criminal Appeal, but in

People (A. G.)

Kennedy

the Supreme Court, following

the principles earlier outlined, held that such appeal did

not lie. The rule in "

O'Shea

" now renders Section 29

obsolete in relation to decisions of the Central Criminal

Court. The Legislature also enacted Section 34 of the

Criminal Procedure Act 1967 in a conscious effort to

remove a problem associated with the sanctity of

acquittals. If a trial judge directed a jury to acquit an

accused on a point of law, the .A.G. was empowered under

this Section to refer that point of law to the Supreme Court

for their decision, but without prejudice to the verdict of

acquittal. The Supreme Court could therefore lay down

the correct interpretation of the law for future cases. The

Legislature therefore recognised that a problem existed

but they were not prepared to enact legislation allowing for

an appeal against acquittals based on an erroneous view of

the law. This section is now redundant in relation to trials

before the Central Criminal Court. None of this legislation

was expressed to be for the purpose of excepting from or

regulating the appellate jurisdiction of the Supreme Court,

but it is difficult to imagine the Legislature creating a new

Court administration and new rules and procedures

governing that administration unless that is what the

Legislature intended to do. Not all legislation that impinges

on constitutional provisions is expressed to be for that

purpose, and I would submit that the main reason the

legislation and regulations do not mention the constitution

is that for a period of fifty years, nobody had adverted to

the fact that the enactments might conflict with Article

34.4.3°.

The

O'Shea

decision therefore reverses over one

hundred years of precedent and almost eighty years of

legislation. It interferes drastically with the constitutional

right to trial by jury, and it may eventually lead to the

substitution of a decision of a non-jury court for the

verdict of a jury. It will cause confusion in the whole

appeal procedure, and relegates the status of the Court of

Criminal Appeal. It will cause discrimination on an

arbitrary basis between accused persons tried in the

different Courts. It imposes, I submit, an unfair burden on

an accused who has been acquitted in the Central Criminal

Court. For these reasons, I would submit that the strong

dissenting judgments of Henchy J. and Finlay P. are to be

preferred. However, the majority decision is now settled

law, and it is to be hoped that when the Court eventually

comes to give its judgment on the substantive issue, it will

set out proper detailed safeguards which will go someway

to alleviate some of the problems associated with the

decision. •

Footnotes

1. [1908] 2 IR. 431.

2. D.P.P. v. O'Shea. On the 19 January, 1983 the Supreme Court

heard the appeal of the DPP on its merits and dismissed it without

reserving judgment. Mr. O'Shea was discharged.

3. 7 Q.B.D. 198.

4. [1964] IR. 395.

5. [1975] IR. 341.

6. Section 11 Courts (Supplemental Provisions) Act 1961.

7. In this part of his judgment Walsh J. appears to indicate that an

appeal can be taken to the Supreme Court from a decision in the

Circuit Criminal Court which involved a constitutional matter. This

point was not taken up by any of his colleagues and to date, there has

been no attempt to lodge such an appeal.

8. D.P.P.«v. O'Shea. Supreme Court unreported 2/11/82 at page 17.

Henchy J.

9. See generally J. P. Casey "Confusion in Criminal Appeals — The

Legacy of Conmey" 1975 Irish Jurist N.S. page 300.

10. See footnote 17. J. P. Casey op. cit Page 301.

11. [1980] IR. 294.

12. D.P.P. v Byrne. 29th November 1979 Supreme Court. Unreported.

13. [1981] ILRM. 398.

14. D.P.P. v. Christopher Anthony Lynch [1981] ILRM 389 at 402.

15. Shaw v. People (D.P.P.) Supreme Court. Unreported 17/12/80.

16. D.P.P. v. McCann. Supreme Court reference 163/80. D.P.P. v.

Coffey. Supreme Court reference 181/80. D.P.P. v. O'Shea.

Supreme Court reference 190/80.

17. The People (A.G.) v. Conmey. [1975] IR. 341 at page 348.

18. D.P.P. v. Patrick Leo O'Shea. 2/11/82. Supreme Court

Unreported.

19. D.P.P. v. Patrick Leo O'Shea. at page 15. O'Higgins C.J.

20. [1967] IR. 147.

21. D.P.P. v. Patrick Leo O'Shea at page 10. O'Higgins C.J.

22. D.P.P. v. Patrick Leo O'Shea at page 1. Hederman J.

23. D.P.P. v. Patrick Leo O'Shea at page 15. Henchy J.

24. This Committee, which reported in 1966, advocated by a large

majority, the abolition of the Court of Criminal Appeal and the

transfer of its jurisdiction to the Supreme Court.

25. De Burca v. The Attorney General. [1976] IR. 38.

26. D.P.P. v. Patrick Leo O'Shea at Page 12. Finlay P.

27. D.P.P. v. Patrick Leo O'Shea at Page 34. Henchy J.

28. D.P.P. v. Patrick Leo O'Shea at Page 62. Henchy J.

29. Cf. Casey op. cit. Page 306. He is of the opinion that there is no

statutory power enabling the Supreme Court to order a new trial.

O'Higgins C.J. stated in "O'Shea" that inherent in the power to hear

appeals was the power to order a new trial.

30. D.P.P. v. Patrick Leo O'Shea at Page 27. O'Higgins C.J.

31. 1975 53 D.L.R. (3d) 161. See Casey op. cit. page 311.

32. This part of the Courts Act 1981 has now come under challenge in

the High Court, but the cases have not yet come to hearing.

33. The Courts of Justice Act 1924.

34. Section 3. Courts (Establishment and Constitution) Act 1961.

35. Cf. The People (A.G.) v. Cullen. Supreme Court unreported

18/8/71, The People (A.G.) v. Bell [1969] IR. 24.

36. [1946] IR. 517.