DPP v Egan
| Jurisdiction | Ireland |
| Judge | McCarthy, J.,[FINLAY, HAMILTON GRIFFIN AGR],O'FLAHERTY J. |
| Judgment Date | 30 May 1990 |
| Neutral Citation | 1990 WJSC-SC 360 |
| Court | Supreme Court |
| Date | 30 May 1990 |
1990 WJSC-SC 360
Finlay, C.J.
Hamilton, p.
Griffin, J.
McCarthy, J.
O'Flaherty, J.
THE SUPREME COURT
Synopsis:
COURT OF CRIMINAL APPEAL
Jurisdiction
Exercise - Conviction - Trial - Review - Principles applicable - Review of evidence - Objective test - Jury verdict - Condemnation of subjective displacement of findings of court of trial - (36/90 - Supreme Court - 30/5/90) - [1990] ILRM 780
|The People v. Egan|
CRIMINAL LAW
Appeal
Determination - Court of Criminal Appeal - Jurisdiction - Exercise - Trial before judge and jury - Conviction on indictment - Review - Principles applicable - Review of evidence - Objective basis of review - Condemnation of subjective displacement of findings of court of trial - Courts of Justice Act, 1924, s. 39 - Courts (Supplemental Provisions) Act, 1961, ss. 12, 34 - (36/90 - Supreme Court - 30/5/90) - [1990] ILRM 780
|The People v. Egan|
Citations:
DPP, PEOPLE V O'SHEA 1982 IR 384
CONSTITUTION ART 38.5
CONSTITUTION SAORSTAT EIREANN ART 72
COURTS OF JUSTICE ACTS 1924–1961
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S12
COURTS OF JUSTICE ACT 1924 S34
AG, PEOPLE V KERINS 1945 IR 339
DPP, PEOPLE V MADDEN 1977 IR 336
PEOPLE V MULLIGAN & ORS 2 FREWEN 16
DPP, PEOPLE V KELLY (NO 2) 1983 IR 1
DPP, PEOPLE V EGAN UNREP CCA 13/12/89
OFFENCES AGAINST THE STATE ACT 1939 S44(2)
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48
DPP, PEOPLE V O'BRIEN UNREP CCA 21.7.89 1989/5/1345
STAFFORD V DPP 1974 AC 878
NORTHERN BANK FINANCE CORPORATION LTD V CHARLTON & ORS 1979 IR 172
COURTS OF JUSTICE ACT 1924 S30
CRIMINAL LAW (RAPE) ACT 1981 S2
OFFENCES AGAINST THE PERSON ACT 1861 S48
COURTS OF JUSTICE ACT 1924 S29
AG, PEOPLE V WILLIAMS 1940 IR 195
AG V LINEHAN 1929 IR 19
AG, PEOPLE V CRADDEN 1955 IR 130
AG, PEOPLE V CASEY (NO 2) 1963 IR 33
R V COOPER 1969 53 CAR 82
ARCHBOLD 43RD ED P943
DPP, PEOPLE V O'SHEA 1983 ILRM 592
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48
CRIMINAL APPEAL ACT 1907 (UK)
CRIMINAL APPEAL ACT 1968 S2(1) (UK)
CRIMINAL APPEAL ACT 1966 (UK)
Judgment of McCarthy, J.delivered the 30th day of May,1990. [FINLAY, HAMILTON GRIFFIN AGR]
In his Judgment in The People -v- O'Shea (1) Henchy, J. paid eloquent tribute to the right to Trial by Jury
"indicated in Article 38, s. 5 to be a right to a trial with ajury, presumably to make clear (as did Article 72 of the Constitution of1922) that what was being delineated was essentially a right to theevolved and evolving common-law trial by jury, that is to say, a trialbefore a judge and jury in which the judge would
preside, ensure that all conditions necessary for a fair and propertrial of that nature are complied with, decide all matters deemed to bematters of law, and direct the jury as to the legal principles and rulesthey are to observe and apply; and in which the jury, constituted in amanner calculated to ensure the achievement of the proper exercise oftheir functions, would be the arbiters, under the governance of thejudge, of all disputed issues of fact and, in particular, the issue ofguilt or innocence."
He added (at 432)
"The bitter Irish race-memory of politically appointed and Executive-oriented judges, of the suspension of jury trial in times of popular revolt, of the substitution therefor of summary trial or detention without trial, of cat-and-mouse releases from such detention, of packed juries and sometimes corrupt judges and prosecutors, had long implanted in the consciousness of the people and,therefore, in the minds of their political representatives, the conviction that the best way of preventing an individual from suffering a wrong conviction for an offence was to allow himself to "put himself upon his country", that is to say, to allow him to be tried for that offence by a fair, impartial and representative jury, sitting in a court presided over by an impartial and independent judge appointed under the Constitution, who would see that all the requirements for a fair and proper jury trial would be observed, so that, amongst other things, if the jury's verdict were one of not guilty, the accused could leave court with the absolute assurance that he would never again "be vexed" for the samecharge."
In a series of decisions, the Court of Criminal Appeal and this Court have identified the role of the Court of Criminal Appeal in the review of a trial and conviction of an Applicant to that Court (2) The Court of Criminal Appeal derivesits jurisdiction from the Courts of Justice Acts, 1924to 1961and the Courts (Supplemental Provisions) Act, 1961. Section 34 of the Courts of Justice Act, 1924provides:-
"The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court."
Section 12 of the Act of 1961 provides:-
2 "(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act
(2) The People -v- Kerins (1945 I.R.)
The People -v- Madden (1977 I.R.)
The People -v- Mulligan & ors. (2 Frewen 16)
The People -v- Kelly (2) ( 1983 I.R.) 1
The People -v- Luke Egan (Court of Criminal Appeal — unreported—Judgment 13th December 1989)
and subject to the enactments applied by section 48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.
(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is applied by section 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing Court of Criminal Appeal.
(3) In subsection (2) of section 44 of the Offences Against the State Act 1939, the reference to section 30 of the Act of 1924 shall be construed as a reference to subsection (1) of this section."
The Act of 1924 is an enactment applied by Section 48.
In The People -v- Patrick O'Brien (3), also a case of
alleged sexual offences against females, the application was based upon the contention that the verdict of the Jury was perverse. An argumentwas presented contending that Section 12 of the 1961 Act gave to the Court of Criminal Appeal a discretion wider than that originallyconferred on the Court of Criminal Appeal in England in the CriminalAppeal Act, 1907 replaced by Section 2. 1 of the Criminal Appeal Act,1968, the wording of which was examined by the Court of Appeal (CriminalDivision) in Regina -v- Cooper (4), and approved in Stafford-v- Director of Public Prosecutions (5), the latter caseconcerning the admission of additional evidence on appeal. Section 2(1),so far as relevant, reads:-"The court shall allow an appeal against conviction if they think-"
(a) that the verdict of the jury should be set aside on
the ground that under all the circumstances of the case it is unsafe orunsatisfactory...".
In a passage which was expressly approved by Lord Dilhorne and others in Stafford's case, Widgery, L.J. said, in Cooper's case,
"that means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it."
In Mulligan's case, Griffin, J., delivering the Judgment of the Court of Criminal Appeal, having referred to Cooper's case said:-
"The argument presented is that on these applications this Court should consider the evidence disclosed in thetranscript, and form its own view of the cogency of the evidence and of the inferences to be drawn; that, bearing in mind the onus on the prosecution to establish beyond reasonable doubt that the admissions or statements of the three applicants were made voluntarily, this Court should then consider its own reaction in a subjective manner, not merely from the evidence as such, but from "the feel of the case" as experienced by this Court; and that if this Court should entertain a reasonable doubt upon the issue of whether the statements were voluntary, or should have "any lurking doubt" as to whether justice has been done, or should feel that in all the circumstances of the case the verdict in the Court of trial is unsafe or unsatisfactory, the applications should be allowed.... What guidance then should or can this Court take from Reg. -v- Cooper upon hearing an appeal from the Special Criminal Court or indeed from a trial by jury? If this Court, having no more than a transcript and associatedexhibits or documents, may form an opinion, in a subjective manner, that the verdict in the Court from which an appeal is taken is unsafe or unsatisfactory, can such opinion be founded on anything but the record of the evidence as such? In reading the record of the evidence, the appellate Court cannot assess the credibility of witnesses nor the cogency of evidence of primary facts, or of inferences of fact which are dependent upon the credibility of a witness or witnesses. In Northern Bank Finance Corporation Limited -v- Charlton & others [1979] I.R.172 at p. 181 O'Higgins C.J. said:
"In my view it would be not only contrary to accepted practice but also a manifest injustice if a court, which neither saw nor heard the witness, pronounced on his credibility."
In our view it would be an injustice if this Court, on an appeal, were to reject the determination of a Court of trial as to the credibility of the witnesses who gaveevidence before it except...
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...by this Court that a verdict is perverse is a very exceptional one and quoted from the well-known passage in The People (DPP) v Egan 1990 WJSC-SC 360 where McCarthy J. said at p 784:- “……the jurisprudence of the Court of Criminal Appeal since 1924 as, from time to time endorsed by this cour......
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...judgment has been comprehensively rejected by the Supreme Court in its judgment delivered by McCarthy J. in The People (DPP) v. Egan [1990] WJSC-SC 360 in the most trenchant terms. This is a judgment binding upon this Court by reason of the fundamental common law doctrine of stare decisis. ......