The Gazette 1983

GAZETTE

S E PTE M BER 1983

"To my mind the power to act summarily in cases of criminal contempt, if it exists, must extend to all forms of such contempt: if it exists, whether it should be ex- ercised in a particular case may well be a matter of judicial discretion to be decided on the facts and circumstances applicable. The question to be determined, however, is whether in the light of the general directory provisions of Article 38.5 of the Constitution, the courts have any jurisdiction to try charges of criminal contempt in the absence of a jury" 52 O'Higgins C.J. went on to state that a particular pro- vision of the Constitution must not be construed in isolation; to do so would be to regard the Constitution not as one fundamental law but as a series of such laws. Article 38.5 had to be viewed against the background of the general scheme of things postulated by the Constitution. The legal landscape on which the Constit- ution had been superimposed was also a matter for the cognisance of the courts. The possession of a power of summary punishment in relation to contempt of court was authoritatively declared in A. G. v O'Kelly to be the birthright of every court. Article 34.1 of the Constitution provided that Justice shall be administered in courts est- ablished by law by judges appointed in the manner pro- vided by this Constitution, and save in such special and limited cases as may be prescribed by law, shall be admin- istered in public. It was the solemn duty of judges under the Constitution to see that justice was administered in the courts. The Chief Justice observed that the imposition of this duty carried with it, both the power, and the corres- ponding duty to act in protection of justice if its fair and effective administration be endangered or threatened. The judicial power of government was sufficiently ex-

(continued from p. 209) The State (D.P.P.) v Walsh & Conneelly.

Here the Supreme Court approved the constitution- ality of a summary trial in a particular case of criminal contempt. However Henchy J. with whom Griffin and Kenny J. J. agreed, delivering the majority judgement of the court entered the caveat that, as presently advised, he believed a jury trial to be the correct mode of trying factual issues in all major contempt charges in which they arise. 50 This line of reasoning would appear to be applicable also to cases of civil contempt for it was specifically stated that a judicial policy that in only some cases should such issues be determined by a jury would seem to be so arbitrary and discriminatory as not to be consistent with the equality before the law guaranteed by Art. 40 of the Constitution. O'Higgins C.J. with whom Parke J. concurred, did not doubt the existence of cases where the High Court in its discretion might prefei and the D.P.P. might be willing to have particular charges of contempt tried by a jury. 51 This might occur where issues of fact arise or where a conflict of evidence appears. However this was a matter for disc- ernament according to the particular circumstances and jury trial was not necessitated by the Constitution. In The State (D.P.P.) v Walsh and Connelly the alleged contemnors were leading officials in an organisation known as the Association for Legal Justice which was reported in a newspaper article to have con- demned the imposition of the death penalty in a particular criminal case as this ran counter to the notion that violence begot violence. The gravamen of the alleged offence consisted of the following sentence:- "It was particularly reprehensible because it was pass- ed by the Special Criminal Court, a Court composed of Government appointed judges with no judicial independence, which sat without a jury, and which so abused the rules of evidence as to make the court akin to a sentencing tribunal". This outburst might be viewed as constituting the form of contempt which falls within the description of scandalising the court. Such contempt occurs where wild, unfounded allegations of corruption or malpractice are made against a court or judge to bring the administration of justice into disrepute. The appellants contended that having been proceeded against on attachment they were persons charged with a serious criminal offence and that being so charged their right to trial by jury was guaranteed by Article 38.5 of the Constitution. TTiey were prepared to accept that in respect of criminal contempts committed in facie curiae a summary jurisdiction existed and made a similar concession in relation to such constructive contempts as impede, threaten or endanger a fair trial of pending pro- ceedings. In such instances the courts are bound to act expeditiously in the interests of justice and this require- ment of urgent action was the source of a summary jurisdiction in respect of such contempts. However in the present case the trial alluded to, had already con- cluded and thus there could exist no requirement of urgency to warrant the exercise of a summary jurisdict- ion by the High Court in deprivation of their constitutional right to trial by jury. The Chief Justice did not find this "urgency-as-the- basis-of -jurisdiction" argument attractive. He said:- 212

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