DPP v Quilligan (No. 2)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1989
• Docket Number: [S.C. No. 367 of 1985]
• Date: 01 January 1989

The People (D.P.P.) v. Quilligan (No. 2)

The People (at the suit of The Director of Public Prosecutions)

and

Christopher Quilligan and Patrick O'Reilly (No. 2)

[S.C. No. 367 of 1985]

Supreme Court

Criminal law - Appeal - Supreme Court - Jurisdiction of Supreme Court - Whether Supreme Court has ancillary jurisdiction to order retrial after appeal by prosecution against acquittal - Criminal Procedure Act, 1967, (No. 12) - Rules of the Superior Courts, 1962 (S.I. No. 72), O. 58, r. 9 - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 87, rr. 2, 9, and 11 - Constitution of Ireland, Article 34, s. 4, sub-s. 3.

Order 58 of the Rules of the Superior Courts, 1962, governed appeals to the Supreme Court from the High Court, until new rules of court were made in 1986. The Rules of 1962 contained no specific provisions dealing with appeals from the Central Criminal Court (the High Court exercising its criminal jurisdiction), as the only form of appeal from that court recognised at the time the Rules were made was to the Court of Criminal Appeal. Rule 9 of O. 58 contained a general provision that: "if, upon the hearing of an appeal, it shall appear to the Supreme Court that a new trial ought to be had, it may order that the judgment or order be set aside and that a new trial be had."

In 1975 the Supreme Court held that it had jurisdiction under Article 34 of the Constitution to hear an appeal brought by a person who had been convicted before the Central Criminal Court In 1982 it held that its appellate jurisdiction included the right to entertain an appeal by the prosecution against a verdict of not guilty recorded in the Central Criminal Court, where such verdict was recorded pursuant to a direction by the trial judge. The question whether a retrial could be ordered by the Supreme Court after it had set aside a not guilty verdict was not decided.

New rules of court were introduced in 1986. Order 87 of the Rules of the Superior Courts, 1986, governs appeals from the Central Criminal Court to the Supreme Court. Rule 1 of O. 87 provides that a notice of appeal may include "an application to set aside the verdict and finding of a jury, or to direct a new trial." By r. 9: "if, upon the hearing of an appeal, it shall appear to the Supreme Court that a new trial ought to be had, it may order that the judgment or order be set aside and that a new trial be had."

In 1984 the respondents were charged with murder and returned for trial to the Central Criminal Court. After the trial judge had ruled inadmissible certain statements made by the respondents while in Garda custody, he directed the jury to find them not guilty of the charges against them. The appellant successfully appealed to the Supreme Court against the order of the Central Criminal Court. On the appellant's application, which was made after the Rules of 1986 were introduced, for an order that the respondents be remanded to the Central Criminal Court for a new trial in respect of the charge of murder on the indictment laid against them, it was

Held by the Supreme Court (Henchy, Griffin and Hederman JJ.; Walsh and McCarthy JJ. dissenting), 1, that the application should be refused.

Per Henchy and Griffin JJ.:

• (i) That if O. 87, r. 2 of the Rules of the Superior Courts, 1986, on its correct construction purported to confer jurisdiction to order a retrial where there had been an acquittal in the Central Criminal Court, it was ultra vires the rule-making power, since rules of court were confined to matters of pleading, practice and procedure generally, and could not make alterations to substantive law.

The State (O'Flaherty) v. Ó Floinn ó floinn [1954] I.R. 295 considered.

(ii) That it was unnecessary to consider the scope of O. 87 of the Rules of 1986 as the order did not apply to this appeal; the respondents had been acquitted in the Central Criminal Court prior to the introduction of the new rules, and rules of court could not be applied to an existing situation so as to impair or destroy vested rights or immunities.

(iii) That, furthermore, the Rules of 1962 did not apply to the appeal, since, at the time those Rules had been made, the right of appeal from the Central Criminal Court to the Supreme Court had not been recognised by statute and had not been contemplated by the rules of court.

(iv) That the Supreme Court's jurisdiction to hear an appeal against an acquittal in a trial on indictment in the Central Criminal Court did not carry with it by necessary implication an inherent ancillary jurisdiction to order a retrial.

(v) That were the Court to hold that it had jurisdiction to order a retrial after hearing an appeal against an acquittal, it would be effecting a subversion of the legislative will as disclosed by s. 34 of the Criminal Procedure Act, 1967, which provides that an appeal to the Supreme Court by way of case stated under that Act should be without prejudice to a not guilty verdict.

(vi) That were the respondents to be retried in the Central Criminal Court, they could successfully rely on the plea in bar of autrefois acquit, as they had already been tried by a court of competent jurisdiction acting within jurisdiction.

(vii) That the constitutionality of a statutory provision which conferred jurisdiction to order a retrial following upon an acquittal would be questionable, on grounds of inequality of treatment, if it were to apply only to appeals from the Central Criminal Court, and not to appeals from other courts which had jurisdiction to try indictable offences.

Per Walsh and McCarthy JJ., dissenting: That as no verdict of either conviction or acquittal now stood against the respondents in respect of the charges on the indictment, the Court had an inherent jurisdiction, as well as a jurisdiction under the rules of court, to order a new trial upon that indictment.

Cases mentioned in this report:—

Ross v. R. [1957] A.C. 208; [1957] 2 W.L.R. 307; [1957] 1 All E.R. 451.

Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401; 48 Cr. App. R. 183.

Attorney General v. Smith [1927] I.R. 564.

The People (D.P.P.) v. O'Shea [1982] I.R. 384; [1983] I.L.R.M. 549.

The People (D.P.P.) v. Quilligan [1986] I.R. 495; [1987] I.L.R.M. 606.

The State (O'Callaghan) v. O hUadhaigh [1977] I.R. 42.

The People (Attorney General) v. Conmey [1975] I.R. 341.

The State (O'Flaherty) v. O Floinn [1954] I.R. 295; (1954) 90 I.L.T.R. 179.

The People (Attorney General) v. Griffin [1974] I.R. 416; (1973) 108 I.L.T.R. 81.

Holohan v. Donohoe [1986] I.R. 45; [1986] I.L.R.M. 250.

Motion.

On the 20th November, 1984, the respondents were arrested and detained under s. 30 of the Offences against the State Act, 1939, on suspicion of having committed malicious damage. They were charged with murder on the 18th January, 1985, and, on the 18th June, 1985, were returned for trial to the Central Criminal Court. On the 6th December. 1985, at the respondents' trial, the trial judge (Barr J.) directed that statements made by the respondents while in custody under the Act of 1939 were inadmissible in evidence. He thereupon directed the jury to record verdicts of not guilty in respect of both respondents. On the 25th July, 1986, the Supreme Court held in favour of the appellant's appeal, made by way of notice of motion dated the 17th December, 1985, against the verdicts of not guilty by direction recorded in the Central Criminal Court. The Court deferred for consideration the question whether it could order a new trial of the respondents. (See [1986] I.R. 495).

Article 34, s. 4, sub-s. 3 of the Constitution provides:—

"The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law."

Order 58, r. 9 of the Rules of the Superior Courts, 1962, provided:—

"If upon the hearing of an appeal, it shall appear to the Supreme Court that a new trial ought to be had, it may order that the judgment or order be set aside and that a new trial be had."

Order 87 of the Rules of the Superior Courts, 1986, which came into force on the 1st October, 1986, provides, inter alia, under the heading "Appeals from the Central Criminal Court", as follows:—

"2. In any cause where there has been a trial thereof, or of any issue therein, every notice of appeal therein may include an application to set aside the verdict and finding of a jury, or to direct a new trial, or for such other relief as may be appropriate.

7. In any appeal within r. 2, a new trial shall not be granted on the ground of mis-direction or of the improper admission or rejection of evidence, unless in the opinion of the Supreme Court some substantial wrong or miscarriage has been thereby occasioned in the trial.

9. If upon the hearing of an appeal, it shall appear to the Supreme Court that a new trial ought to be had, it may order that the judgment or order be set aside and that a new trial be had.

11. Where the appellant is the Attorney General or the Director of Public Prosecutions he shall without delay lodge in the Office of the Registrar of the Supreme Court five books of appeal each containing copies of all documents required for the hearing of the appeal . . ."

Cur. adv. vult.

Walsh J.

The facts of this case were fully set out in the judgments delivered in this Court on the 25th July, 1986, in the first part of the present appeal. That part of the present appeal and the judgments therein is reported at [1986] I.R. 495. This Court having set aside the acquittal of the respondents the question which now falls for decision is whether this Court can and ought to order a new trial of the respondents. They have been arraigned and pleaded not guilty to the charge of murder and for the reasons which were fully set out in the...