The Gazette 1983

MARCH 1983

GAZETTE

possibly liable to reversal that will cause practitioners and their clients a great deal of worry. Judges on appeal merely read the evidence from a typed transcript. The jury, on the other hand, have the opportunity of seeing the various witnesses and of assessing their veracity and disposition. A transcript cannot record the demeanour of a witness and yet this is often of vital importance in enabling a decision to be made. Notwithstanding this, the Supreme Court have now taken to themselves the power to, in effect, overrule the decision of 12 jurymen. As such a situation was never contemplated, there are no procedural rules and, more importantly, no procedural safeguards to govern the exercise of this power. Have the Supreme Court the power to order a re-trial? 29 Will they take unto themselves the power to substitute a verdict of guilty for one of acquittal? O'Higgins C.J. attempted to allay these fears. "From a practical viewpoint" he stated, "this Court will not be concerned with verdicts of acquittal properly arrived at by a jury on the merits. Its jurisdiction will only be invoked where a mistrial or a non-trial has taken place as a result of an erroneous ruling or direction by a judge." 30 However, as earlier stated, the basis of the judgment of the majority was that all acquittals could be appealed. Therefore, this statement amounts to a self imposed limitation on a wider power — there is nothing to prevent the Court in a suitable case relaxing or suspending the limitation. Secondly the decision of the jury must be arrived at "properly" and "on the merits" — this can only mean that the Supreme Court will be empowered to reverse a decision of a jury if the Supreme Court feel that the Jury did not act "properly" or if they feel the accused should have been convicted. All criminal practitioners have met cases where accused persons have been acquitted byjuries where there seemed to have been overwhelming evidence against them. It would, I submit, be the very antithesis of the constitutional right to trial byjury ifthe Supreme Court could reverse such decisions. The substitution by the Supreme Court of a verdict of guilty for one of acquittal is not as far-fetched as it might seem. In a case of Morgentaler v. The Queen 31 the Canadian Supreme Court did just that in a jurisdiction where the Legislative had enacted that the Supreme Court could hear appeals against acquittals. Criticisms of mqority decision Henchy J. also criticised the decision of the majority on other grounds. He gave examples of other decisions of the High Court which are not appealable. He quoted English and American judgments acknowledging the age-long existence of the concepts of "double jeopardy" and "autrefois acquit". Like Finlay P., he argued that this putative constitutional right conflicted with other constitutional rights. Apart from the right to trial by jury, he also discussed the equality provisions of article 40.1. and personal rights provisions under article 40.3. Since the passing of the Courts Act 1981, the only offences which can be sent forward for trial to the Central Criminal Court are murder, attempted murder and treason. 32 All other offences are triable on indictment before the Circuit Criminal Court or in certain circumstances, the Special Criminal Court. It is difficult to point to any "differences of capacity, physical and moral, and of sociál function" between different accused convicted in each of the three different courts which would bring their differences in 31

to the matters raised on the preliminary issue. There remains, he said, "important matters of substance and procedure which can only be decided by this Court upon the subsequent hearing of that appeal". 22 Both the dissenting Judges pointed out that the judgments in Conmey could only be read as mere obiter dictae. Henchy J. in a scathing attack on " Conmey" pointed out that (a) the judgments delivered were on a matter not then before the Court (as it had refused Conmey's application for enlargement), (b) Conmey did not, in fact, appeal directly to the Supreme Court, and (c) his "appeal was not against an acquittal. Their judgments should then be seen, said Henchy J., as " . . . no more than peripheral observations desiring of course of all due respect but not binding on this or any other Court". 23 Notwithstanding this, the majority were prepared to base their judgment on the authority of "Conmey". It is difficult, I submit, not to sympathise with the view of Henchy J. in this instance. Reading " Conmey " one is immediately struck by the fact that one is witnessing not only "judicial legislation", but judicial legislation in a vacuum. The decision is based on hypothetical facts. Despite recommendations contained in the Seventh Interim Report of the Committee on Court Practice and Procedure (chaired by Judge Walsh) 24 the Oireachtas had failed to seriously interfere in the appeal process. The Supreme Court utilised their half opportunity in "Conmey " to bring about the changes they desired. Right to trial by jury Finlay J based his dissent on the grounds that the putative right of direct appeal seriously conflicted with another constitutional right — the right to trial by jury under Article 38.5. This right had been discussed at length in De Burca's case 25 where some of the essential ingredients of such form of trial were enumerated. Finlay P. saw one of these "essential ingredients" 26 as being " . . . the immunity of the verdict of "not guilty" arrived at within its jurisdiction and without corruption from appeal to any appellate tribunal". 26 He extracted this ingredient from a century of rules and precedents. Henchy J. agreed. In a long passage 27 he sets out the arguments and reasons underpinning the right of trial by jury and later stated "If a jury's verdict of acquittal were held to be . . .inconclusive, the constitutional right to trial by jury would be an unreliable weapon in the armoury of personal liberty". 28 Neither O'Higgins C.J. nor Walsh J. were in agreement with these viewpoints. Both of them initially pointed out that the instant case was an appeal against an acquittal by direction. In practical terms therefore, the jury were not free to make up their own minds — they were bound to follow the direction of the trial Judge. However, neither Judge was prepared to confine his decision to appeals against acquittals by direction. Walsh J. submitted that an acquittal by a jury obtained by improper means such as corruption or coercion of the jury should not be allowed stand. Therefore, he stated, (arguing of course from extreme examples), it cannot be said that "non- appealability" is one of the essential characteristics of Jury trial. O'Higgins CJ . declared that even if the jury were completely free to decide on guilt or innocence, their decision could be overturned. It is this insistance by the majority that all acquittals are