People (Attorney General) v Kennedy

JurisdictionIreland
Judgment Date21 December 1946
Date21 December 1946
CourtSupreme Court
The People (Attorney-General) v. Kennedy.
THE PEOPLE (at the suit of the Attorney-General)
and
RICHARD KENNEDY (1)

Court of Criminal Appeal

Supreme Court.

Criminal law - Appeal - Conviction set aside by Court of Criminal Appeal - Notice of appeal to Supreme Court served by Attorney-General - Whether Attorney-General entitled so to appeal - Construction of Courts of Justice Act, 1924, s. 29 - Conviction for offences against Emergency Powers Orders - Evidence - Emergency Powers Orders not formally proved - Courts of Justice Act, 1924 (No. 10 of 1924), s. 29 - Courts of Justice Act, 1928 (No. 15 of 1928), s. 5 - Emergency Powers Act, 1939 (No. 28 of 1939),ss. 2 and 5.

Sect. 5, sub-s. 1, of the Emergency Powers Act, 1939, provides that every person who contravenes a provision in an Emergency Order made under the Act shall be guilty of an offence under the section. Similar provision is made by s. 5, sub-s. 2, in respect of every person who aids, abets, assists, or conspires with, another person in committing an offence under the former sub-section.

The accused was convicted upon indictment before the Special Criminal Court upon a number of charges alleging offences against s. 5, sub-ss. 1 and 2, of the Emergency Powers Act, 1939. At the trial, Stationery Office copies of the relevant Emergency Orders were produced by the prosecution, but were not formally proved. The accused applied to the Court of Criminal Appeal for leave to appeal against his conviction, on the ground, inter alia,that the prosecution had failed to prove the several Emergency Orders which he was alleged to have contravened. The Court of Criminal Appeal granted his application and, treating it as the appeal,

Held that the said Emergency Orders are not in the same position as statutes and that therefore they require to be formally proved in evidence. The Court accordingly allowed the appeal, and set aside the convictions and sentences, [But see The People (Attorney-General) v. Shribman and Samuels,reported ante p. 431.

Sect. 29 of the Courts of Justice Act, 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."

An application to the Court of Criminal Appeal by counsel on behalf of the Attorney-General for a certificate for leave to appeal to the Supreme Court having been refused, the Attorney-General issued a certificate, under s. 29 of the Courts of Justice Act 1924, certifying that the above decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. Pursuant to the said certificate notice of appeal was served on behalf of the Attorney-General. Counsel for the accused thereupon made a preliminary application for the dismissal of the appeal upon the ground that a decision of the Court of Criminal Appeal, reversing a conviction by the Special Criminal Court and acquitting an accused, was final and conclusive and unappealable.

Held by the Supreme Court (Murnaghan, Geoghegan, O'Byrne and Black JJ.; Martin Maguire J. dissenting), that, upon the construction of s. 29 of the Courts of Justice Act, 1924, the appeal by the Attorney-General against the order of the Court of Criminal Appeal acquitting the accused was incompetent and did not lie.

Accordingly the Court refused to entertain the appeal.

Application for leave to appeal.

The applicant, Richard Kennedy, was on the 10th September, 1945, convicted by the Special Criminal Court upon

eleven counts charging offences against s. 5 of the Emergency Powers Act, 1939, and was sentenced both to terms of imprisonment and fines. At the trial, Stationery Office copies of the relevant Emergency Orders were produced to the Court, but no formal proof of their authenticity was given. The Court having refused an application for a certificate for leave to appeal, the applicant applied to the Court of Criminal Appeal for such leave. The application was based upon several grounds, including the ground that the prosecution failed to prove the several Emergency Orders which the applicant was alleged to have contravened.

Cur. adv. vult.

The judgment of the Court was delivered by Davitt J.

Davitt J. :—

The applicant, Richard Kennedy, was, together with six others, indicted in the Special Criminal Court on an indictment containing fifty counts charging offences against s. 5 of the Emergency Powers Act, 1939. He was concerned in nineteen of these counts and was convicted on eleven and sentenced in respect of each. Having been refused by the Special Criminal Court a certificate for leave to appeal against the convictions and sentences he now, by way of appeal from such refusal, applies to this Court for such leave to appeal.

The applicant was convicted on two counts charging conspiracies with others to do certain acts in contravention of certain Emergency Orders; and on nine counts charging him and others with doing certain acts in contravention of certain Emergency Orders.

The first ground of appeal stated in the applicant's notice of application is that there was no evidence, or not sufficient evidence to sustain a conviction on all or any of the counts in respect of which the accused was convicted; and his counsel, Mr. Bell, in his argument relating to this first ground, as his first point, submitted that it was necessary for the prosecution to prove these Emergency Orders in evidence; that they were not so proved; and that they were not properly, if at all, before the Special Criminal Court.

The applicant was not represented by counsel at his trial, and his defence was conducted by his solicitor, Captain Cowan. The trial was a lengthy one, lasting sixteen days, and on the tenth day, the case for the prosecution having concluded, Captain Cowan, in asking the Court to acquit his client on all counts on the evidence as it then stood, specifically made the point that the Emergency Orders had not been proved in evidence. By way of answer, Mr. Hooper, for the prosecution, as appears from the transcript of the shorthand note of the proceedings, dealt with the matter as follows:—

"Now, Captain Cowan's point—that the Emergency Powers Orders are not proved—I could not waste any time over that. They are produced to the Court by means of Stationery Office copies. In any event they are part of the statute law of the country, and I must say that this is the first time I have heard that theory advanced.

Captain Cowan:—Do I understand my friend to say that they were produced to the Court?

Mr. Hooper:—The Court was referred to all of them.

Captain Cowan:—We have had a lot of discussion about it, but they were never produced.

Mr. Hooper:—They no more have to be produced than I have to produce the Larceny Act in a larceny prosecution before the Circuit Court."

The Court refused Captain Cowan's application for a direction, but did not deal specifically with his submission that the Emergency Orders had not been properly proved.

The Emergency Orders in question are not contained in the list of exhibits or documents furnished to this Court as having been proved and put in evidence upon the trial. Mr. Hooper has told us that, though they were not formally proved and put in evidence, they were in fact referred to in his opening statement to the Court, which is not included in the transcript; that all relevant portions were either referred to or read in extenso; and that he believes that the Court had before them upon the bench Stationery Office copies of all the Orders.

Mr. Bell submits that the Emergency Orders in question are not in the same position as statutes; that the Special Court were not entitled to take judicial notice of them; and that the prosecution must prove that they were duly made, just as they must prove any other fact upon which they rely to establish the guilt of the defendant. He referred to the convenient method of proof provided by s. 4 of the Documentary Evidence Act, 1925, and to three reported cases:—Duffin v. Markham and Another(1); Tyrrell v.Cole(2) and Greswolde v. Kemp(3).

Mr. Hooper referred to s. 10 of the Emergency Powers Act, 1939, which provides that every Emergency Order made by the Government in exercise of the powers conferred by s. 2 of the Act shall have the force of law. He submitted that, if this Court were satisfied that the Special Criminal Court in fact had before them Stationery Office copies of the Emergency Orders in question, there would be no reality or substance in Mr. Bell's submission, which should therefore be rejected. He asked the Court to request the Special Criminal Court for a report as to whether they had before them at the trial Stationery Office copies of the Emergency Orders in question.

This Court is of the opinion that Mr. Bell's submission is correct, and ought to be accepted. Statutory Orders, such as the Emergency Orders in question, are not in the same position as statutes, and Courts are not entitled to take judicial notice of them. They must be proved in evidence. While Emergency Orders made under the provisions of the Emergency Powers Act, 1939, have, by virtue of s. 10, the force and effect of law, a Court is not entitled to give any effect to an instrument which is alleged to be an Emergency Order unless and until it is satisfied that the instrument is, in fact, what it is alleged to be; and it can only be so satisfied when it has been proved in evidence that the instrument in question is an Order duly made in...

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