People (Attorney General) v Bell

CourtSupreme Court
Judgment Date01 January 1971
Date01 January 1971

Supreme Court

The People (Attorney General) v. Bell
NUALA BELL and Others

High Court - Jurisdiction - Costs - Criminal proceedings by indictment - Accused found not guilty by jury - Accused applying for costs of defence - Discretion of High Court applicable to "costs of . . . every proceeding" - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 99, r. 1, sub-r. 1 - Courts of Justice Act, 1924 (No. 10 of 1924), s. 36 - Courts (Supplemental Provisions) Act, 1961 (No. 39 of 1961), ss. 8, 14.

Constitution - Supreme Court - Jurisdiction - Appeal from High Court on issue of costs only - Leave to appeal obtained - Leave unnecessary - No restriction on appellate jurisdiction of Supreme Court - Supreme Court of Judicature Act (Ireland), 1877 (40 & 41 Vict. c. 57), ss. 52, 53, 61, 65 -Constitution of Ireland, Articles 34, 36, 40, 50.

Statute - Interpretation - Literal meaning of phrase resulting in an absurdity - Enactment - Repeal by implication.

Central Criminal Court.

Nuala Bell, Bridie Brady, Elizabeth Dillon and other persons accused were arraigned on indictment and tried in the Central Criminal Court before Mr. Justice Kenny and a jury. The jury found, by direction of the trial judge, that Bridie Brady was not guilty and they found the other accused not guilty at the conclusion of the trial. All the accused then applied for orders directing the Attorney General to pay the costs of their defence. Mr. Justice Kenny adjourned the applications so as to enable legal submissions to be made to him upon the jurisdiction of the High Court, when dealing with criminal proceedings as the Central Criminal Court, to make the orders sought. The legal submissions were heard by Mr. Justice Kenny on the 20th, 21st, 25th and 26th April, 1967.

Section 8 of the Courts (Supplemental Provisions) Act, 1961, provides:—

"(1) The High Court shall be a superior court of record with such original and other jurisdiction as is prescribed by the Constitution.

(2) There shall be vested in the High Court—

  • (a) all jurisdiction which was, immediately before the commencement of Part 1 of the Act of 1924, vested in or capable of being exercised by the former High Court of Justice in Southern Ireland or any division or judge thereof and was, immediately before the operative date1, vested in or capable of being exercised by the existing High Court,

  • (b) 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 High Court.

    • (3) The jurisdictions vested in the High Court shall include all powers, duties and authorities incident to any and every part of the jurisdictions so vested."

The Attorney General appealed to the Supreme Court from the judgment and order of the High Court.

Section 53 of the Supreme Court of Judicature Act (Ireland), 1877, enacted that, subject to the terms of the Act and of rules of court, the costs of every proceeding in the High Court of Justice in Ireland should be in the discretion of that court, but s. 65 of that Act provided that, subject to rules of court made under the Act, the practice and procedure in all criminal causes or matters in that court should be the same as existed before the Act of 1877. No rules of court were made under the Act of 1877 providing for the award of costs by that court in criminal proceedings by indictment, and there was no jurisdiction before the Act of 1877 to award such costs.

Section 36 of the Courts of Justice Act, 1924, enables rules of court to be made in relation to "pleading, practice and procedure generally in all criminal cases" and s. 14, sub-s. 2. of the Courts (Supplemental Provisions) Act, 1961, enacts that the jurisdiction "which is by virtue of this Act" vested in or exercisable by the present High Court shall be exercised in regard to pleading, practice and procedure generally "including liability to costs" in the manner provided by rules of court made under s. 36 of the Act of 1924. The Rules of the Superior Courts, 1962, were made pursuant to the said s. 36 and provided at Order 99, r. 1, that (subject as therein) the costs of "every proceeding"in the present High Court should be in the discretion of that court.

At the conclusion of a criminal trial by indictment in the High Court (Central Criminal Court) the accused, who had been found not guilty by the jury, applied to the trial judge (Kenny J.) for an order directing the Attorney General to pay the costs of the defence. Having heard argument, it was

Held by Kenny J., 1, that the recited sections of the Acts of 1877, 1924, 1936 and 1961 gave the rule-making authority for the present High Court the power of conferring on that court a jurisdiction to award costs in criminal trials by indictment.

2. That the provisions of Order 99, r. 1, sub-r. 1, had conferred that jurisdiction upon the present High Court.

On appeal by the Attorney General, by leave of Kenny J. given pursuant to s. 52 of the Act of 1877, it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh, Walsh and Budd JJ.; FitzGerald J. dissenting), in dismissing the appeal, 1, that a jurisdiction to award costs in criminal trials by indictment had been conferred upon the present High Court by means of the provisions of s. 14, sub-s. 2, of the Act of 1961 and of Order 99, r. 1, sub-r. 1, of the Rules of 1962.

Quinn and White v. Stokes and Quirke [1931] I.R. 558 considered.

The State (Minister for Lands & Fisheries) v. Sealy [1939] I.R. 21 approved.

2. That the requirement of leave to appeal contained in s. 52 of the Act of 1877, if still in force immediately before the Constitution came into operation, was no longer in force as it was inconsistent with the provisions of Article 34, s. 4, sub-s. 3, of the Constitution.

The State (Browne) v. Feran [1967] I.R. 147 applied.

In bonis Morelli; Vella v. Morelli [1968] I.R. 11 considered.

Semble: The jurisdiction of the High Court which is mentioned in s. 14, sub-s. 2, of the Act of 1961 includes the jurisdiction conferred on that court by the provisions of the constitution and is not restricted to the jurisdiction conferred on that court by the Act of 1961 as suggested by a literal interpretation of the sub-section.

Cur. adv. vult.

Kenny J. :—

In the year 1963 Nuala Bell, Marie Ryan, Bridie Brady, Mary Nolan, Margaret Whelan and Elizabeth Dillon were employed by Dunnes Stores (George's Street) Ltd. (which I shall call "the Company"). In that year Sergeant Culloty and Guard Molloy, members of the Garda Síochána, were employed by the Company in a part-time capacity to stand in civilian clothes in the Company's store at George's Street to stop shoplifting. In January, 1964, Guard Molloy got information that some of the Company's employees were stealing its goods and on the 22nd January, 1964, he was assigned by his superior officers to investigate this charge. He asked Sergeant Culloty to help him and the two of them, dressed in uniform, began their investigation as Guards by interviewing a number of girls in the Company's stores. Many statements were taken and each of the six accused signed confessions. The circumstances in which these statements were obtained have been fully investigated during the 39 days of this trial. Each of the accused gave evidence that her statement was made because of threats made by the two Guards. The Guards denied that any threats or intimidation were used and said that the statements were freely made. Each of the accused was charged with conspiracy to steal and with larceny, and the preliminary investigation of the charges was heard in the District Court when the admissibility of the statements was challenged.

On the 14th August, 1964, the District Justice returned the six accused for trial before the Circuit Court. The values of the goods alleged to have been stolen were small but the District Justice could not deal with the matter summarily because of the conspiracy charge. Even if the conspiracy charge had not been made, the case was not one which any District Justice could think was fit to be tried summarily (see s. 2 of the Criminal Justice Act, 1951) as the allegations made against the Guards and against the directors of the Company were very serious. The case was subsequently transferred to the Central Criminal Court (the High Court). It was adjourned on a number of occasions and ultimately was heard by Mr. Justice McLoughlin and a jury in April, 1966, when all the accused pleaded not guilty. The State did not ask to have the larceny charges tried with that for conspiracy because of the decision of the Court of Criminal Appeal in England given in January, 1960, in Regina v. Dawson2 and Regina v. Windlock.2Counsel for the accused objected to the admission in evidence of the statements made and this issue was heard by Mr. Justice McLoughlin in the absence of the jury. After a hearing which lasted five days, my colleague decided that the statements should be admitted in evidence and, shortly afterwards, he discharged the jury.

The trial began again before me in December, 1966. Objection was taken to the admission in evidence of the statements and, after a hearing which lasted 161/2 days, I decided that five of the statements should be admitted in evidence but that the statement made by Miss Brady should be excluded. The State then continued the evidence in the presence of the jury and, at the conclusion of their case, I ruled that there was no evidence that Miss Brady had committed any of the offences with which she was charged and I directed the jury to find her not guilty. The case continued; all the accused gave evidence and, after a hearing which lasted 39 days in all, the jury found the five accused not guilty of all the offences with which they were charged. At the conclusion of the case, counsel for the accused...

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