The Gazette 1975

Oireachtas given powers to establish Courts In his view Article 34 gave authority to the Oireach- tas to establish such Courts as it might think fit and to disestablish them as it thought fit but subject to the mandatory provisions which related to the High Court and to the Supreme Court. He was satisfied that the statutory provisions establishing the Court of Criminal Appeal were not invalid, having regard to the provisions of the Constitution. The Judges who sat on the Court of Criminal Appeal were Judges appointed in the man- ner provided by the Constitution. Within the concurrent limited jurisdiction which it excercised, recourse to the Court of Criminal Appeal was capable of completely exhausting the subject matter of the appeal. In such a case its decision was final. The sit- uation was otherwise if it should entertain a case in which it was incapable of exhausting the subject mat- ter. Such a case would be an appeal against a con- viction in a case which involved the validity of any law, having regard to the provisions of the Constitution. It was only in cases where it w?s capable of exhausting the whole decision against which the appeal was taken that its decision could be final. However the Court of Criminal Appeal was clearly not the High Court, but a Statutory Court which could be disestablished. In the present case the appellant chose to invoke the jurisdiction of the Court of Criminal Appeal in a matter in which it had jurisdiction to adjudicate and in respect of which the appellate jurisdiction of the Supreme Court could be invoked. In those circumstances there would be no point in granting an extension of time and he would refuse the motion seeking it, he said. Mr. Justice Doyle agreed. Opinion Reserved on Constitutional question Mr. Justice Griffin, in a judgment with which Mr. Justice Budd agreed, said that apart from the submis- sion on behalf of the applicant that the statutory pro- visions establishing the Court of Criminal Appeal were invalid, having regard to the Constatution (which question had been decided by the Court), argument was addressed to the Court on the questions of whether a convicted person was entitled by Article 33 (4) (3) of the Constitution to appeal direct to the Supreme Court against his conviction and sentence in the High Court (sitting as the Central Criminal Court), and whether in the case of a person acquitted by the Cen- tral Criminal Court an appeal against such acquittal lay to the Supreme Court, or whether the provisions of Section 29 of the Courts of Justice Act, 1924, as carried forward by Section 48 of the Courts (Supple- mental Provisions) Act, 1961, constituted an exception or a regulation prescribed by law within the meaning of Article 34 (4) (3). He said that in the events that had happened, and having regard to the course of this litigation, these questions did not call for a decision on the hearing of the present application and he expressly reserved his opinion on these questions as any opinion he might give would be extraneous to what arose for decision on this matter. As the case had been determined by the Court of Criminal Appeal, it was not open to the ap- . 2 6 7

the Supreme Court shall, "with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction over all decisions of the High Court, and shall also have appellate jurisdic- tion over such decisions of other Courts as may be. prescribed by law". It was abundantly clear that the appellant was tried by the High Court and was sentenced by the High Court sitting as the Central Criminal Court. Conviction or Acquittal by the High Court Having referred to the functions of Judges and Juries in trials, Mr. Justice Walsh said in his view it was not correct to describe any prisoner as having been convicted or acquitted by the Jury. A conviction or acquittal is clearly an acquittal or conviction by the High Court and not by a jury. It appeared to him that an acquittal or a conviction and/or sentence by the High Court was a decision of the High Court which was within the appellate juris- diction of the Supreme Court unless it has been except- ed from the appellate jurisdiction by an Act of the Oireachtas. No express exception had been made by any Act of the Oireachtas in respect of decisions of the High Court in the exercise of its criminal jurisdic- tion, even in its criminal jurisdiction, the High Court had jurisdiction to decide upon the constitutionality of any law submitted to it. Implied exception for Court of Criminal Appeal Continuing, he said it had been submitted on behalf of the Attorney-General that such an exception wes to be necessarily implied in the case of decisions which were convictions and/or sentences from the statutory provisions in relation to the jurisdiction of the Court óf Criminal Appeal. Any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of the Supreme Court or any particular provision seeking to confine the scope of such appeals within particular limits, would, of necessity have to be clear and un- ambiguous. The appellate jurisdiction of the Supreme Court flowed directly from the Supreme Court, and any dimi- nution of that jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative action. Having referred at length to the jurisdiction of the Court of Criminal Appeal, Mr. Justice Walsh said it had been submitted on behalf of the appellant that the establishment of the Court of Criminal Appeal was invalid, having regard to the provisions of the Con- stitution. The main grounds why this submission was advanced were that there was no reference in the Con- stitution to the establishment of the Court of Criminal Appeal and no provision for the appointment of Judges to it. However, Article 34 (1) provided that justice shall be administered in Courts established by law by Judges appointed in the manner provided in the Con- stitution.