The Gazette 1983

MARCH 1983

GAZETTE

The Power of the Prosecution to Appeal Acquittals by Michael Staines, Solicitor

People (A.G.) v. Conmey Despite this injunction, a later Supreme Court took the first steps towards creating such a precedent in the case of The People (A.G.) v. Conmey. 5 Conmey had been convicted of manslaughter before a Judge and Jury in the Central Criminal Court, but had been allowed leave to appeal to the Court of Criminal Appeal. His appeal to that Court was dismissed. He did not then apply to the Court for a Certificate under Section 29 of the Courts of Justice Act 1924, which, if granted, would have allowed him to appeal to the Supreme Court. However, three years after his original conviction and one year after his appeal was refused, Conmey applied to the Attorney General for such a certificate. His application was refused. He then applied to the Supreme Court seeking an enlargement of time to serve a Notice of Appeal to the Supreme Court. All five members of the Supreme Court held that such enlargement of time should not be granted. However, despite the fact that the Court in effect decided that they had no jurisdiction to decide on the Appeal (as initially it was out of time), they went on to rule on the various points contained in his Notice of Appeal. In order to do this, they had firstly to decide on the question of whether an accused person could appeal directly to the Supreme Court. The majority, O'Higgins C.J., Walsh and Doyle J.J. held that he could, and in so holding, prised open a gap in the fundamental rule expounded by Palles C.B. The Judgments of the majority were based on Article 34.4.3° of the Constitution. Under this sub-section, the Supreme Court has "with such exceptions and subject to such regulations as may be prescribed by law" appellate jurisdiction "from all decisions of the High Court". The Central Criminal Court is, in fact, the High Court exercising its criminal jurisdiction. 6 The Court must be regarded as consisting of the Trial Judge and Jury. Any verdict, therefore, is a decision of the High Court, and therefore, under the sub-section, appealable. The Legislature had, the majority conceded, enacted statutory regulations governing the appeal process (for example the setting up of a specific Court to deal with appeals) but they held that these regulations did not have the effect of excepting from the appellate jurisdiction of the Supreme Court. Indeed if these regulations did so except, they would be in danger of being declared unconstitutional or violating the constitutional right of appeal to the Supreme Court. O'Higgins C.J. was of the opinion that the establishment of the Court of Criminal Appeal served merely to provide an accused convicted in the Central Criminal Court with a choice. He could avail of a direct 29

6 C T 1 HERE is nothing more settled in our law t h a t . .. A if a person be once in peril in a criminal case, that is, if he be once tried before a Court having jurisdiction to hear and determine, then if there be a determination of acquittal, the matter cannot be brought up a second time for adjudication." This pronouncement by Palles C.B in G. S. & W. Railway Company v. Gooding 1 succinctly sets out a fundamental rule of Criminal Law that has been accepted without question in all common law jurisdictions. Accepted, that is, until the 2nd Npvember 1982. On that date in a case of D.P.P. v. O'Shea, 2 the Supreme Court overruled the precedents of over a century, and held that it had jurisdiction to hear an appeal brought by the Director of Public Prosecutions against an acquittal in the Central Criminal Court. There can be no doubt that all of the judicial precedents and decisions on the point up to 1975 heavily favoured the view propounded by Palles C.B. In R. v. Duncan, 3 Lord Coleridge observed that such a practice "has been settled for centuries". Other English and American decisions quoted by Henchy J. in his dissenting opinion in "O'Shea" point to the fact that the principle originated in Greek and Roman times and has been followed in common law jurisdictions ever since. Finlay P. in his dissenting judgment in "O'Shea" pointed out that there is not a single instance of a decision over a period of a hundred years allowing the prosecution to appeal an acquittal. The respect for this principle is shown very clearly in the case of The State (A. G.) v. Judge Binchy . 4 In this case, the Trial Judge directed the jury in a criminal case to find the accused not guilty on the grounds that the Prosecution had failed to prove the Order returning the accused for trial. This decision was, in fact, an incorrect interpretation of the law. The High Court nonetheless refused to grant an absolute Order of Certiorari quashing his decision. The Attorney General appealed this order to the Supreme Court. It accepted that the Trial Judge had incorrectly directed the Jury but nonetheless, held that it had no jurisdiction to, in effect, overrule the verdict of acquittal. This was despite the fact that the "acquittal" was on (incorrect) jurisdictional grounds and not on the facts. As O'Dalaigh J. stated (at page 416) " . . . Where the jury's verdict as recorded is a verdict of "not guilty" simpliciter, this Court should act on the verdict for what it says. It is entirely without precedent to go behind such a verdict, and it is now too late to create one".