The Gazette 1974

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 a 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

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.