The Gazette 1975

fell 33 feet to the ground and was severely injured. In his charge to the jury, Murnaghan J. told them that they had to be satisfied of the guilt of the accused, and he equated "satisfied" with "beyond reasonable doubt". Until 1949, judges in criminal trials invariably had told the jury for 150 years that the prosecution had to prove the guilt of the accused beyond reasonable doubt. Since then, there have been many judgments in Eng- land (hat are difficult to reconcile, and subtle dis- tinctions have been made of being "sure" or "satisfied" of the prisoner's guilt. The Court considers that the departure from the time honoured formula was un- fortunate. Having considered many precedents on the subject including Lawrence v R. — (1933) A.C. — Woolmington — (1935) A.C., and Mancini (1941) 3 All E.R. 272 and the High Court of Australia decisions in Thomas v R . _ ( 1 9 6 0 ) 102 C.L.R. 5 8 4—a nd Dawson v R. — (1961) 106 C.L.R.I. — the Court said that the correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused. It is also essential that the jury should be told that the accused should be entitled to the benefit of the doubt. Wh en two views on any part of the crse are possible on the evidence, they should adopt that which is favourable to the accused unless the State has established another beyond reasonable doubt. It is not correct to state that being satisfied means the same thing as beyond a reasonable doubt. No attempt was made to explain this distinction. As the error related to a vital matter, the conviction will be set aside, and new trial ordered. The People (A.—G.) v Byrne, McGregor and O'Callaghan — Court of Criminal Appeal (Fitzgerald C. J., Kenny and Butler JJ.) per Kenny J. — unreported — 21st November, 1973. The facts in this case have been fully set out in the March 1974 Gazette at p.55 It will be recalled that Kenny J., in June 1973 allowed the application of the first wife, Alice to succeed to her husband's estate in preference to the second wife, Lydia, as the second marriage was not valid, because the first wife had fraudulently divorced her husband as a result of duress. The real point of the second wife's appeal is that the evidence tendered by and on behalf of Alice in sup- Port of the claim that Alice and her husband were not a t any time domiciled in England at the time of the alleged divorce proceedings in 1958 should not have been received by Kenny J. on the ground that the plaintiff was estopped from giving evidence. The basis w a s that, having obtained a dissolution of marriage, fhe should not now be heard to say that this dissolut- ton was invalid for want of jurisdiction in the English Court that granted it. Per Walsh J . :—In this State, there is no judicial Process available to dissolve marriage. The net question Due to fraudulent divorce, first wife is entitled to the succession of her husband's estate, to the exclusion of the second wife.

is whether the marriage between Alice and her husband was a valid subsisting marriage in Irish law when he died in Spain in April, 1972. There is a principle of Pri- vate International Law by which Irish courts would recognise decrees of dissolution of marriage granted by the Courts of another country wheere the parties were domiciled there at the time; this principle is still part of the Common Law in Ireland. Art. 41 (3) (3) of the Constitution appears to mean that the Oireachtas would have power by legislation to define what for- eign judicial decrees of dissolution of marriage shall or shall not be recognised in our Courts as legally changing the status of the parties. Our law contains a great deal more than Statute Law, as well as of the doctrines of the Common Law, which were created by Judges, and in due course come to be modified, if not entirely abandoned, by Judges. The Common Law exists independently of Statute Law, save to the extent to which it is modified by Statute, nor can the Com- mon law modify or dilute any provision of the Con- stitution. There is no dispute in this case but that the domicile of the husband was at all times Irish, which he never abandoned as far as Alice was concerned. During the subsistence of a marriage, a wife's domicile remains the same as that of her husband. In Ireland, certain Constitutional Rights may accrue to a woman by virtue of her position of being a wife. The matter cannot therefore by any rules of evidence be left in a position of doubt, nor could the Courts countenance a doctrine of estoppel if existing, that a person should be estopped from saying that he or she is the husband or wife as the case may be, when in law the person making that claim has that status. It is beyond doubt that Alice was the wife of Henry Gaffney at his death, as the English Court would not have granted the decree of divorce if it had known the true facts. Consequently the purport- ed dissolution of marriage was made without jurisdict- ion and is of no effect in Irish law. Per Henchy J.:—The defendant, Lydia did contend that the evidence heard de bene esse at the trial before Kenny J as to the circumstances of the divorce in Eng- land were inadmissa'ble. The argument against the re- ception of the evidence is that, as Alice was the moving party as the petitioner for the divorce, she is estopped by the record from impugning the correctness of what she put on record in getting the divorce decree — i.e that she and her husband were domiciled in England. This was a falsehood that misled the English Court into assuming a divorce jurisdiction, which the absence of residence or domicile withheld from it. If it is shown that the Court had no jurisdictional competence to make the order, such an order is anullity, and is incap- able of supporting an estoppel of record. The Comity of Courts under Private International Law does not require or permit recognition of decisions given, intentionally or unintentionally, in disregard of jurisdictional com- petence. It is impossible to hold that Alice approbated the divorce decree when the act of approbation relied on was not her free voluntary act. Per Griffin J.:—The question then arises as tc whether in the absence of proceedings to set aside the divorce judgment in England, the Irish Court should investigate whether the English Court had jurisdiction 151