The Gazette 1967/71

dity of the scheme was granted—as well an injunction restraining the Board from submitting the scheme to the Minister for confirmation. Dunraven (Limerick) Estates Co. v. The Commissioners of Public Works — O'Keeffe P., Unreported — 6th March, 1970. Costs Costs can be awarded by High Court in case of Acquittal in criminal trial. The High Court, in a trial on a criminal indictment may order the Attorney-General to pay costs to an accused person who has been acquitted by the jury at that trial- On 14th August 1965, 6 Defendants were returned for trial to the Circuit Court (subsequently transferred to the Central Criminal Court) on various charges of conspiracy to steal and of larceny from Dunne's Stores. The first trial was held before McLoughlin J. in April 1966. but it proved abortive. The second trial was held before Kenny J. and, after a hearing lasting 39 days, the 6 defendant girls were found not guilty. Counsel for defendants applied to Mr. Justice Kenny for an order that the Attorney General should be directed to pay the costs of the defence. The apDlication was re fused, save in respect of nine days hearing for the defendant Brady, and two days hearing for the defen dant Dillon. who alone have appealed in this case. As no law has been passed since the enactment of the Constitution in 1937 which excludes the right of appeal in respect of any order as to costs made by a High Court Judge whether exercising civil or criminal juris diction, the Attorney-General can bring the present appeal by virtue of Art. 34 (2) of the Constitution, without any regard to Section 52 of the Judicature Act 1877, Any jurisdiction of the High Court addi tional to the original jurisdiction conferred by the jurisdiction conferred by the constitution, is vested by Statute. It follows that any question of costs rela ting to such additional jurisdiction can only be regulated on statutory authority. Kenny J. was right in stating that S. 22 of the Courts of Justice Act 1924 which gives the rule making authority power to make rules to provide for "liability to costs" confers upon the Court, when such rules are made, the necessary statu tory authority to deal with the liability of the parties in respect of costs. Order 28 of the High Court Rules 1926 arising from the Courts of Justice Act 1924, while dealing with costs, made no provision for criminal costs, but the rules as to costs in existence before 1924, if not inconsistent with the Court of Justice Act 1924. were to be applicable to costs taxed after that Act had come into force. At no time between 1924 and 1961, when the former Courts of Saorstat Eireann ceased to exist, was any order brought in dealing with criminal costs; only section 5 of the Courts of Justice Act 1928 provided that where the Court of Criminal Appeal re versed a conviction and directed a new trial the costs of the new trial should normally be borne by the State. As was pointed out in The People v. Harte— (1946) I.R., this Section gave no power to the Court to make any order as to the costs of the first trial The present wording of Section 14 (2) of the Courts (Supplemental Provisions) Act 1961 which states that the jurisdiction exercisable by the High Court shall be regulated as regards practice and procedure, in cluding liability for costs, in accordance with Rules of Court, and. in the event of no rule being provided,

shall be exercizable as far as possible in accordance with the former rules, is not limited to the ordinary juris diction of the High Court but clearly includes the wide original jurisdiction vested in the High Court by Article 34 of the Constitution. Since 1924, the Judi cature Act of 1877 has been of historical interest only for purposes of reference and accordingly the current Order 99 relating to costs in the Superior Courts Rules 1962 owes nothing to the corresponding Sections of the Judicature Act. For present purposes, the only important statutory authority is S 14 (2) and in order 99 alread" cited, this Section does not speci fically exlude criminal jurisdiction. The State (The Minister for Lands) v. Judge Sealy— C19391 T.R.— correctly decided that the words "any proceedings in the Court" contained in the Circuit Court Rules 1932 were sufficient to include all pro ceedings of a civil or criminal nature in the Circuit Court. It follows that Rule 1, save sub-Rules 3 and 4, of Order 99 of the Superior Court Rules 1962 is ?Dplicr>b!e to the trial of a criminal charge by indict ment in the His'h Court, consequently the principle enunciated by Kennv T as to awarding costs in criminal proceedings was correct. I Appeal dismissed by the Full Supreme Court. Fitz gerald J. dissenting. The People (Attorney-General) v. Nuala Bell— Supreme Court—Unreported 27th March 1969- Evidence The Supreme Court has full power to take oral evidence. The main purpose of the Guardianship of Infants Act is to give to both parents of an infant equal rights in guardianship matters. In doing so, this Act nrovided a statutory expression of the rights already guaranteed by the Constitution. Section 6 stated the equality of the parents and recognised them as the guardians of the infant—and no Court can nullify this. Under Sect. 11 it is only where the parents are not residing together that the custody of the infant may be con sidered by the Court. Even if one of the parents is to be deprived of the custody, total or partial, of an infant, such parent can continue to exercise the rights of a guardian and should be consulted in all matters rela ting to the religious, moral, intellectual, physical and social welfare of the infant. Any order which the Court makes will only be invoked when judicially satisfied that the welfare of the child requires that the wishes of the parents should be overuled—this order is consequently interlocutory because the particular cir cumstances may change from time to time. In the case of young children, in the absence of agreement between the parents, it behoves the Court to exercise a continuous supervision during their infancy. The appellate jurisdiction of the Supreme Court from all decisions of the High Court is conferred directly by Article 34 of the Constitution and it fol lows, that the scope, extent and procedure of the appeal is normally one for that Court to consider. As the High Court referred to in Art. 34 of the Constitution only came into existence in 1961, there cannot be any question that the present Supreme Court should be circumscribed by decisions limiting its appellate jurisdiction from decisions of the High Court established in 1961. The power of the Supreme Court to take addit ional evidence in order to determine the anoeal is in herent in Ihe Court by virtue of its establishment, and 8