The Gazette 1983

GAZETTE

SEPTEMBER 1983

had not been regarded as a criminal trial. This was not the position. On the contrary Sullivan P. was prepared to assume for the purposes of the O'Kelly case that the terms of Article 72 of the Free State Constitution, literally construed, were sufficient to include applications to commit for contempt of court. American Influences Here the matter rested until the 1970's in this juris- diction but the intervening period witnessed the occurence of major developments in the law of contempt across the Atlantic. In the United States of particular importance to the question of jurisdiction and procedure is the right to a jury trial guaranteed by Article 111 Section 2 of the Constitution and by the Sixth Amendment which binds state courts under the Fourteenth Amendment. Until comparatively recent years contempt of court was regarded as falling outside the protection afforded by the Constitution. In U.S. v Green Frankfurter J. adverted to the fact that in at least two score cases in the U.S. Supreme Court not to mention the vast mass of decisions in the lower Federal Courts the power to punish summarily had been accepted without question. In U.S. v Barnett^ the proceedings were fought against the background of an attempt by the coloured student James Meredith to enter the University of Mississippi. A policy of deliberate non-compliance with court orders on the part of the State Governor led to a contempt citation in respect of which the Supreme Court held that the petitioner was not entitled to trial by jury. The decision was that of a bare majority of the Court and doubts were expressed by members of the majority as to whether penalties in excess of those provided for petty offences could be imposed without affording an opportunity for a jury trial. This caveat was seized upon in Bloom v Illinois 34 where a lawyer filed a spurious will for probate. This was charged as a criminal contempt and an Illinois State Court denied a request for a jury trial. On an appeal to the Supreme Court from a sentence of 2 years imprisonment. White J., delivering the opinion of the court, agreed with the Barnett decision insofar as it held that 33 "Criminal contempt, intrinsicially and aside from the particular penalty imposed, was not deemed a serious offence requiring the protection of the constitutional guarantees of the right to jury trial". He added however 36 "...that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial. ..[In] our view, dispensing with the jury in the trial of con- tempts subjected to severe punishment represents an unacceptable construction of the Constitution". In Cheff\ SchnackenbergV the Supreme Court has already indicated that it would limit the length of summary punishment for criminal contempt through the exercise of its general supervisory power to review proceedings in Federal Courts. The rationale of the right to jury trial in contempt cases was succintly stated in Bloom v Illinois. 38

have been demonstrated by historical scholarship to be based on historical error. The most authoritative student of contempt of court has impressively shown the myth of immemorial usage to be a mere fiction. 25 Indeed it seems clear that until at least the late Seventeeth or early Eighteenth century the English Courts, excepting the ill-famed Court of Star chamber to which many approbrious epithets have been applied neither had nor claimed power to punish contempts committed out of court by summary process. Prior to this period such contempts were tried in the normal and regular course of the criminal law including trial by jury. Then in 1765 Wilmot J. declared in an opinion prepared for delivery in the Court of King's Bench (but never actually handed down) that courts had exercised the power to try all contempts summarily since their creation in the forgotten past, 26 a proposition that won uncritical acceptence in A. G. v O'Kelly. Although Wilmot J's observations were not adopted as the basis for a decision by an English Court until the case of Clement 27 in 1821, they have exercised a baleful influence on the law of contempt. While they were subjected to searching criticism by Fletcher J. of the Court of Common Pleas in the Irish case Taafe v Dowes 28 of 1813, subsequently they have secured the enthusiastic approval of the Irish Bench. Historical inaccuracy seems to have been transformed into constitutional dogma. The decision in A. G. v O'Kelly is open to further objection. Sullivan P. placed heavy reliance upon Cox v Hales 29 and the principle therein contained to the effect that the mere fact of a general word being used in a statute does not foreclose all inquiry into the object of the statute or the mischief which it was intended to remedy. In some instances statutes have been construed quite contrary to the letter. Sullivan P. appears to have been of the opinion that principles of statutory inter- pretation were equally apposite to the construction of our Constitution. This assumption was not shared by Walsh J. in The State (Browne) v Feran. 30 There the learned judge pointed out that what was being construed in Cox v Hales was a statute and it could not be suggested that the canons of construction applicable to a statute are equally applicable to a written Constitution. In the latter case words, which in their ordinary meaning, import inclusion or exclusion, cannot be given a meaning other than their literal meaning save where the authority for doing so can be found in the Constitution it- self. 31 The Constitution represented a new departure in respect of fundamental principles. The High Court must mould its own cursus curiae. A. G. v Connolly In A. G. v Connolly , 32 the O'Kelly case was regarded as a precedent governing the High Court in the construction of the new Constitution.Article 38.5 had not taken away the jurisdiction formerly held by the Court and its predecessors to punish summarily for criminal contempt. It required clear and unequivocal language to effect a depritation of this necessary and inherent jurisdiction. However, it is respectfully submitted that Gavan Duffy P's interpretation of the earlier authority is in some respects erroneous. The learned President stated that Sullivan P. in the O'Kelly case considered the nature, origin and purpose of the jurisdiction and showed that a motion for attachment

"[In] terms of those considerations which make the right to jury trial fundamental in criminal cases, there 181