People (Attorney General) v Conmey

JurisdictionIreland
CourtSupreme Court
Judgment Date06 October 1975
Date06 October 1975
Docket Number[S.C. No. 145 of 1974]

Supreme Court

[S.C. No. 145 of 1974]
The People (A.G.) v. Conmey
The People (at the Suit of The Attorney General)
and
Martin Conmey

Constitution - Statute - Validity - Courts - Establishment - Court of Criminal Appeal - High Court exercising criminal jurisdiction - Whether appeal lies to Supreme Court - Courts (Establishment and Constitution) Act, 1961 (No. 38), s. 3 - Courts (Supplemental Provisions) Act, 1961 (No. 39), ss. 11, 12 - Constitution of Ireland, 1937, Article 34, ss. 1-4.

Motion on Notice.

On the 28th October, 1974, the applicant, Martin Conmey, applied to the Supreme Court pursuant to Order 108, r. 7. of the Rules of the Superior Courts, 1962, for an extension of the period of 21 days allowed under r. 3 of Order 58 for the service of notice of his appeal to the Supreme Court from his conviction by the Central Criminal Court on the 15th July, 1972. In the course of his application, the applicant raised the issue of whether the establishment of the Court of Criminal Appeal was in accordance with the provisions of the Constitution of Ireland, 1937.

Sections 1-4 of Article 34 of the Constitution of Ireland, 1937, provide as follows:—

"1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

2. The Courts shall comprise Courts of First Instance and a Court of Final Appeal.

  1. 3. 1 The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.

    1. 2 Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court or the Supreme Court . . .

    2. 4 The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law.

  2. 4. 1 The Court of Final Appeal shall be called the Supreme Court.

    1. 2 The president of the Supreme Court shall be called the Chief Justice.

    2. 3 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.

    3. 4 No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution . . .

    4. 6 The decision of the Supreme Court shall in all cases be final and conclusive."

Section 1 of the Courts (Establishment and Constitution) Act, 1961, enacted that on the commencement of the Act (29th September, 1961) the Supreme Court referred to in Article 34 of the Constitution should stand established. Section 2 of the said Act enacted that on the commencement of the Act the High Court referred to in Article 34 of the Constitution should stand established. Section 3 of the said Act enacted that on the commencement of the Act a court of appeal, to be called The Court of Criminal Appeal, should stand established and that, for the purpose of hearing and determining any particular appeal cognisable by the Court of Criminal Appeal, that court should be summoned in accordance with directions to be given by the Chief Justice, and should be duly constituted if it consists of not less than three judges chosen in accordance with the provisions of that section.

Section 11 of the Courts (Supplemental Provisions) Act, 1961, enacts that the High Court so established, when exercising the criminal jurisdiction with which it is invested, shall be known as the Central Criminal Court.

Section 12, sub-ss. 1 and 2, of the said Act provides:—

"(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act 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."

Among the enactments applied to the present Court of Criminal Appeal by ss. 12 and 48 of the said Act are ss. 29 and 31 of the Courts of Justice Act, 1924.

Section 31 of the Act of 1924 enacts:—

"A person convicted on indictment before the Central Criminal Court or before any court of the High Court Circuit may appeal under this Act to the Court of Criminal Appeal under the following conditions:—

  1. (i) if the appellant obtains a certificate from the judge who tried him that the case is a fit case for appeal;

  2. (ii) in case of refusal of such certificate if the Court of Criminal Appeal on appeal from such refusal grant leave to appeal."

Section 7 of the Courts of Justice Act, 1928, provides that, where a person convicted on indictment before the Central Criminal Court or the Circuit Court appeals to the Court of Criminal Appeal or applies to that court for leave to appeal, any interlocutory application in relation to such appeal or application may be heard and determined by the Chief Justice or by any judge of the Supreme Court nominated by the Chief Justice for that purpose. These provisions have been applied to the present Chief Justice, and other judges of the Supreme Court, by ss. 10 and 48 of the Courts (Supplemental Provisions) Act, 1961.

Section 29 of the Act of 1924 provides:—

"The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive."

Section 4 of the Courts (Establishment and Constitution) Act, 1961, enacts that on the commencement of the Act a court of first instance, to be called "The Circuit Court," shall stand established. Section 25 of the Courts (Supplemental Provisions) Act, 1961, states that the Circuit Court (with certain exceptions, "shall have and may exercise every jurisdiction as respects indictable offences for the time being vested in the Central Criminal Court . . ." An appeal lies from the Circuit Court (in all cases tried in that court on indictment) to the Court of Criminal Appeal under like conditions and in like manner and with like incidents as are enacted in regard to an appeal from the Central Criminal Court to the Court of Criminal Appeal: see s. 63 of the Act of 1924 and s. 48 of the Courts (Supplemental Provisions) Act, 1961.

The applicant lodged a document dated the 15th January, 1975, containing certain submissions. Paragraph A.6 of that document stated:— "By s. 3 of the Courts (Establishment and Constitution) Act, 1961, the Court of Criminal Appeal 'shall stand established' and in this connection reference is made to s. 7 of the same Act which provides that 'the existing courts shall . . . cease to be established,' and 'existing courts' are defined as those mentioned in Article 58 of the Constitution. The only courts mentioned in Article 58 are the Supreme Court of Justice, the High Court of Justice, the Circuit Court of Justice, and the District Court of Justice. The Act came into force on 29th September, 1961, by virtue of S.I. No. 217 of 1971." Paragraph B.2 of the document stated:— "The Constitution, both in Article 34 and in the transitory Article 58, is silent as to the Court of Criminal Appeal and in the latter Article the courts which are expressed to be subject to the provisions of the Constitution are set out in detail to the exclusion of the Court of Criminal Appeal."

The respondent lodged a document dated the 3rd February, 1975, containing certain submissions. Paragraphs 6(a) and 7 of that document stated:—

"6(a). This was effected by s. 8 of the Courts of Justice Act, 1924, in the manner therein specified; the court being constituted "the Court of Criminal Appeal of Saorstát Éireann éireann for the occasion in question." Reference may also be made to ss. 28 to 35, inclusive, and s. 63 of the said Act of 1924, and to ss. 5 to 7, inclusive, of the Courts of Justice Act, 1928 (No. 15 of 1928) as to the jurisdiction, powers, procedure, etc., of the Court of Criminal Appeal of Saorstát Éireann éireann.

7. The provisions aforesaid (with immaterial exceptions) of the said Acts of 1924 and 1928 (in particular s. 8 of the Courts of Justice Act, 1924) were in force immediately prior to the date of the coming into operation of the Constitution and, not being inconsistent with the Constitution, were carried over and continued to be in full force and effect after the coming into operation of the Constitution by virtue of Article 50 thereof. As the Court of Criminal Appeal of Saorstát Éireann éireann, by virtue of the terms of s. 8 of the Courts of Justice Act, 1924, was summoned or constituted from time to time by the Chief Justice by the request of the Chief Justice referred to in the said s. 8 "for the occasion in question", and as the judges who were members of it varied from time to time, it was not appropriate that the Court of Criminal Appeal should be...

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