The Gazette 1983

GAZETTE

MARCH 1983

appeal to the Supreme Court or he could appeal to the Court of Criminal Appeal. He óould not do both (unless, of course, he obtained the Section 29 Certificate mentioned earlier). Walsh J. had a more jaundiced view of the jurisdiction of the Court of Criminal Appeal. He saw it as being a Court of limited appellate jurisdiction. Article 34.4.4° provides that no law must be enacted excepting constitutional questions from the appellate jurisdiction of the Supreme Court. Therefore, argued Walsh J., a decision of the Court of Criminal Appeal in a case which involved a constitutional point cannot be final and such decision could be appealed again to the Supreme Court. 7 The Court of Criminal Appeal therefore has concurrent jurisdiction with the Supreme Court only in relation to appeals which do not involve constitutional points. Conmey decision and the Appeal process Both of these judgments (with which Doyle J. concurred) are, I submit, based on a narrow interpretation of one sub-section in the Constitution. Each constitutional provision ought, I submit, to be read in the light of all of the other constitutional articles, especially when other constitutional rights may be in conflict with it. Secondly, though less importantly, each article ought to be examined in conjunction with existing laws and judicial precedents. As Henchy J. has stated 8 "any single constitutional right or power is but a component in the ensemble of interconnected and interacting provisions which must be brought into play as part of a large composition, and which must be given such an integral interpretation as will fit it harmoniously into the general constitutional order and modulation." He continued "No single constitutional provision (particularly one designed to safeguard personal liberty or the social order) may be isolated and construed with undeviating literalness". Apart from conflicting with several other constitutional guarantees (this aspect will be dealt with later), the Conmey decision was the source of some confusion in the whole appeal process. 9 As neither the Circuit Criminal Court nor the Special Criminal Court are part of the High Court the decision had no application to cases tried before those Courts. This resulted in a total anomaly as at that time, the Circuit Court was empowered to try exactly the same types of cases (with a couple of exceptions) as the Central Criminal Court. These exceptions related to murder, attempted murder and treason. The Special Criminal Court could in certain circumstances try cases of murder. Therefore, two accused persons charged with the same offence arising from the same incident could find themselves before different Courts, and if convicted, were subject to a different appeal process. For example, an accused convicted in the Central Criminal Court could appeal directly to the Supreme Court, whereas an accused convicted in the Special Criminal Court could only get his appeal before the Supreme Court if he obtained the so- called "Section 29 Certificate". These certificates were rarely given 10 and could only be granted if the Court of Criminal Appeal or else the Attorney General (or now the Director of Public Prosecutions) certified that a decision involved a point of law of exceptional public interest and also that it was desirable in the public interest that an appeal be taken to the Supreme Court. For these reasons it was generally hoped that the Supreme Court would clarify the position as soon as possible.

Succeeding cases showed that the Court was prepared to continue in its new direction. The case of D.P.P. v. Walsh 11 was the first direct appeal to the Supreme Court since " Conmey's " case. The legal representatives of all the parties concerned had furnished submissions to the Court contending that the Court had jurisdiction to hear the appeal and eách of the Judges gave hisjudgment on the basis that they had jurisdiction. Similar judgment was given in D.P.P. v Byrne 12 on the same day. The position was somewhat different in the case of D.P.P. v. Christopher Anthony Lynch. 13 O'Higgins C.J. reiterated his judgment in "Conmey". Walsh J. did not deal with the jurisdictional issue. Kenny J. however specifically reserved his views on the point. The existance of a right of direct appeal logically necessitated that the D.P.P. would have a right to appeal against an acquittal in the Central Criminal Court. This would be "remarkable" and would in his opinion "result in a far reaching change in our law which I am convinced those who enacted the Constitution never envisaged". 14 Finally, in D.P.P. v. Shaw 15 Griffin J (with whom Henchy, Parke and Kenny J.J. concurred) cast doubt over the new departure. D.P.P. v O'Shea It seemed inevitable therefore that the D.P.P. would attempt to appeal an acquittal in the Central Criminal Court to the Supreme Court. Notices of appeal were duly filed in several cases. 16 It is ironic that the D.P.P. was prepared to file such appeals as in "Conmey," Counsel for his predecessor, the A.G., described such right of appeal as being both "novel and undesirable". 17 However, one of the appeals came up for judgment and in D.P.P. v. Patrick Leo O'Shea 18 the Supreme Court by a majority of 3 to 2 upheld the D.P.P.'s power and held that they had jurisdiction to hear such appeal. O'Shea had been acquitted by direction in the Central Criminal Court of various charges relating to the alleged possession of firearms, ammunition and the controlled drug, cannabis. There had been a great deal of public interest in the case and the acquittal by direction caused surprise in many quarters. The Supreme Court initially gave judgment on the preliminary issue as to whether it had jurisdiction to hear the appeal. O'Higgins C.J., Walsh and Hederman J.J. held that it had. Dissenting judgments were delivered by Henchy J and Finlay J. O'Higgins C.J. relied heavily on the judgments delivered in "Conmey". He accepted that these judgments were not directly concerned with appeals against acquittals, but the "plain words" 19 used in Article 34.4.3° must be read as granting that right. He referred also to the decision in the State (Browne) v. Feran 20 where, on the basis of Article 34.4.3°, the Supreme Court had held that an absolute order of Habeas Corpus could be appealed despite the fact that there was a long established practice that no such appeal could lie. It follows, he said, "that existing laws or formerly accepted legal principles or practices cannot be invoked to alter, restrict or qualify the plain words used in the Constitution unless the authority for so doing derives from the Constitution itself'. 21 Walsh J. based his decision almost wholly on "Conmey". However, like O'Higgins C.J. much of his judgment dealt with the arguments against the new departure. Hederman J. while agreeing with the judgments of his two colleagues, specifically limited his concurrence

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