The Gazette 1974

ered that offenders should be tried by a jury, and that

consequently St. Patrick's was a prison. There are,

however, two open institutions which have recently been

established—at Shanganagh, Co. Dublin, and at Black-

lion, Co. Cavan. All these institutions operate under the

completely outdated Rules for the Government of

Prisons, 1947. Parole can be given to offenders to work

in Dublin during the day, but this has been granted

to less than 10 per cent. Offenders may also be released

before serving their full sentence. The greater part of

the recommendations of the Cussen Report of 1936 and

of the Kennedy Report, 1970, have so far remained

unimplemented.

The Kennedy Report recommends the raising of

criminal responsibility for children from 7 to 12 years.

Two suitable lay assessors should assist the Justice as

regards sentencing. All sentences should be consistent,

which they are not now; sentencing conferences should

be held. There is very little research being done which

would indicate to Judges whether or not various dis-

positions of offenders were successful. In practice there

is no legal aid in the Children's Court. The State must,

however, assume the onus of taking the initial step of

securing representation for the child.

It should not be assumed that children can under-

stand a summons or read a statute. A simplified formula

should be devised. The best method of eliciting in full

the child's own story should be adopted—and the strict

Rules of Evidence should be disregarded. The child

must primarily understand all the evidence given

against him, in order that he may fully challenge and

contradict the witnesses against him.

On Sunday morning, April 28, the Hon. Mr. Justice

J. C. Conroy, President of the Circuit Court, delivered

a lecture on "Criminal Procedure and Evidence".

Article 38 of the Constitution was first cited in full.

If, under Section 19 of the Criminal Procedure Act,

1967, an indictable offence is declared to be a scheduled

offence by the Minister, the District Court may try it as

a summary offence, if the Court considers it a minor

offence, and the accused does not object to be tried

summarily. The way in which to distinguish a non-

minor offence is to consider the following factors: the

statutory punishment, the moral guilt involved, the

state of the law in 1937 (when the Constitution was

enacted), and public opinion when the statute was

enacted. A District Justice has discretion to grant bail

in felonies, but must grant it for misdemeanours.

The main objects of the Criminal Procedure Act,

1967, were (1) to replace the preliminary investigation

of indictable offences by a more expeditious procedure

which normally dispenses with depositions, (2) to extend

the powers of prohibiting publication of preliminary

proceedings, and (3) to re-enact various enactments

relating to bail.

The prosecution serves on the accused the prescribed

statutory documents, which he can inspect. The accused

is cautioned and if there is a sufficient case, he is sent

forward for trial. If the accused pleads "Guilty" of an

indictable offence, with the consent of the Attorney-

General, he may be tried summarily, and be sent to the

Circuit Court to be sentenced; before the 1973 Act

there was no appeal.

The District Court cannot grant bail for murder and

some offences under the Official Secrets Act, 1963, and

the Offences against State Acts; in other felonies and

in specified misdemeanours the Justice has discretion.

The fact that the accused will commit other offences is

not an admissible ground for refusing bail, and the

Court must not fix an excessive amount. In most mis-

demeanours the Justice has to grant bail if the condi-

tions are met. The District Court Clerk must transmit

to the County Registrar the prescribed documents

within ten days of an accused being sent forward for

trial. The indictment must contain a statement of the

specific offence charged, and the particulars of the

offence should be set out in ordinary language. The

Court has wide powers to amend the indictment during

the trial. Normally a trial on indictmcnt must be held

in public, save in cases of an indecent or obscene

nature. An accused must appear in Court personally

to be arraigned. If he pleads "Guilty" he is sentenced

when the Court has heard pleas of mitigation. If the

accused stands mute, a jury is sworn to decide whether

he is mute of malice, or mute by the visitation of God.

A plea of Autrefois Acquit or Autrefois Convict may be

made. If the accused pleads "Not Guilty", the State

must prove the case before a jury. The State may ask

an unlimited number of jurors to stand by, whereas the

accused is only entitled to five challenges without cause

shown, but to unlimited challenges with cause shown.

When twelve jurors are sworn, the County Registrar

reads the indictment to the jury and places the accused

in their charge. The verdict of the jury, whether for

conviction or acquittal, must be unanimous.

State Counsel opens the case; his duty is to present

the facts and to assist the jury in reaching a proper

verdict. The State need only produce as witnesses those

persons whose attendance they can secure. At the end of

the State case, the defence may make a submission that

prima facie

case is not made out, and if the Judge

accedes to it, he directs the jury to acquit the accused.

Normally the accused will then present his case to the

jury and will call such witnesses as are available. If the

accused is not professionally represented the Judge

must tell him that he can either give evidence subject

to cross-examination, or make an unsworn statement,

or say nothing. A free and voluntary statement admit-

ting guilt is only evidence against the accused personally

—not against his co-accused. The police must admin-

ister the caution in accordance with the nine Judges

Rules of 1912 listed. The Judge must rule upon the

admissibility of the statement, whereas the jury con-

siders the weight to be given to the contents. When

speeches have been made by the prosecution and by

the defence, the Judge sums up the case. The summing

up is intended to be a direction as to the law and evid-

ence raised as will guide the jury properly as to what

the issues are. The Judge determines finally all ques-

tions of law, and decides on the admissibility of evid-

ence; he must present this evidence accurately and

adequately. The jury alone determines the sufficiency

and effect of the evidence, and whether this leads to

innocence or guilt.

Generally an accused is presumed to be innocent until

he has been found guilty. It is, therefore, for the State

to prove his guilt. The jury must be satisfied beyond

reasonable doubt of the accused's guilt, and if two

constructions of any incident is possible, the one most

favourable to the accused should be adopted. If the

jury is not unanimous in their verdict, there must be a

re-trial. Some evidence is unworthy of belief unless it

is corroborated. By statute, no one can be found guilty

of treason or perjury or of driving at an excessive speed,

if the evidence is only tendered by one witness. In prac-

216