People v O'Shea


1982 WJSC-SC 2864


O'Higgins C.J.

Finlay P.

Walsh J.

Henchy J.

Hederman J.

D.P.P. v. O'SHEA



JUDGMENT delivered the 2nd day of November 1982 by O'HIGGINS C.J.


In this matter the Court is concerned to decide, as a preliminary issue, whether the Director of Public Prosecutions can bring an appeal against verdicts of "not guilty" recorded by the jury, at the direction of the judge, at the trial, on indictment, of Patrick Leo O'Shea (the respondent named herein) before the Central Criminal Court. The respondent was, with others, charges on indictment on several counts relating to the alleged possession of firearms, ammunition and the controlled drug cannabis. His trial commenced on the 18th March 1980 before Mr. Justice Gannon and a jury and continued until the 20th March 1980. On the 20th March 1980 the jury, by direction of the trial Judge, found him not guilty on all the charges. He was discharged from custody. A formal Order of the Central Criminal Court recording the directed verdicts of the jury and respondent's discharge was perfected on the 13th June 1980. Against the trial Judge's decision so to direct the jury and the resulting verdicts a notice of appeal has been lodged by the Director of Public Prosecutions. As his right to bring such an appeal is challenged by the respondent this Court has, in the first instance, sat to hear arguments on this issue and to consider and decide whether such an appeal lies against an acquittal resulting from a criminal trial in the Central Criminal Court. The Court has not considered the merits of the appeal sought to be brought or the facts or evidence adduced at the trial. Such matters only arise for consideration in the event of the Court deciding that this appeal can proceed.


The appellant rests his claim to bring this appeal on Article 34.4.3 of the Constitution which Article, he asserts, confers on this Court a full appellate jurisdiction in respect of all decisions of the High Court until such time as the Oireachtas by legislation prescribes otherwise. Since the Central Criminal Court is the High Court exercising its criminal jurisdiction, this appellate jurisdiction, the appellant submits, necessarily extends to all decisions and verdicts of that Court, including such decisions and verdicts as result in the acquittal of the person charged.


The respondent disputes this claim on two main grounds. In the first place he contends that Article 34.4.3 must be read and interpreted in the light of the well established principles of the common law which operated at the time of its enactment and/or in accordance with other Articles of the Constitution which provide for trial on criminal charges in due course of law (Article 38.1) and by a jury (Article 38.6) and, when so read and interpreted, cannot have the effect of abolishing, what has been described as, the age old rule that there can be no appeal by the State against a verdict of acquittal pronounced by a jury in a criminal case. Further he submits that if the Article ever had the effect contended for by the appellant, this ceased when the Oireachtas enacted the Criminal Procedure Act 1967, Section 34, whereby a question of law may be referred by the Attorney General to the Supreme Court following a verdict in favour of an accused person found by direction of the trial Judge but without prejudice to that verdict. It is contended that this constituted a regulation "prescribed by law" of the appellate jurisdiction of the Supreme Court, to the exclusion of all other forms of appeal or review of such acquittals.


Issue having been joined in this manner, it now becomes necessary for this Court to determine whether under the Constitution, and, as the law at present prescribes, an appeal of this nature can proceed. However, before entering upon this issue it may be convenient, at this stage, to set out the constitutional and statutory provisions which appear to be relevant. These are as follows:


(a) Article 34.3.1 of the Constitution provides

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


(b) Article 34.4.3 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."


(c) Article 38.1 provides

"No person shall be tried on any criminal charge save in due course of law."


(d) Article 38.5 provides

"Save in the case of the trial of offences under Section 2, Section 3 or Section 4 of this Article no person shall be tried on any criminal charge without a jury."


(e) Section 11(1) Courts (Supplementary Provisions) Act 1961 provides

"The High Court, exercising the criminal jurisdiction with which it is invested, shall be known as An Priomh-Chuirt Choiriuil (The Central Criminal Court) and is in this Act referred to as the Central Criminal Court."


(f) Section 34(1) Criminal Procedure Act 1967 provides

"(1) Where, on a question of law, a verdict in favour of an accused person is found by direction of the trial Judge, the Attorney-General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination."


These being the constitutional and statutory provisions which appear immediately relevant I now turn to a consideration of the issue which requires to be decided in this case.


The Supreme Court's appellate jurisdiction over the High Court is stated by Article 34.4.3 to be "from all decisions" of that Court. As the High Court is given a full original jurisdiction in all civil and criminal matters it seems to follow from a literal reading of Article 34.4.3 that the Supreme Court's appellate jurisdiction extends to every decision of that Court whether given in a civil or a criminal matter. This immediately raises the question, which is crucial to the issue to be decided on this appeal, whether this constitutional provision is to be interpreted literally or whether the words "from all decisions of the High Court" are to be given some restricted or limited meaning. It was this very question which was considered and decided by this Court in The State (Browne) v. Feran 1967 I.R. 147. In that case the prosecutor had obtained an absolute order of habeas corpus in the High Court and the parties who had shown cause sought to appeal to the Supreme Court, relying on the provisions of Article 34.4.3 of the Constitution. In so doing they urged that the words used in this constitutional provision should be given a literal interpretation and that accordingly the right to appeal to this Court "from all decisions of the High Court" meant just that and could not be construed as if it read "from some decisions" or "from nearly all decisions". On the other hand the prosecutor submitted that the constitutional provision should be construed in the light of the law as it existed when it was enacted and that when so construed it did not operate to extinguish or abolish the long established practice and rule that there could be no appeal against the granting of an absolute order of habeas corpus, because it contained no specific provision relating to such an appeal. In support of this argument reliance was placed on the well-known English authority of Cox v. Hakes 15 A.C. 506 and on the decision of the former Supreme Court, in which it was followed, of The State (Burke) v. Lennon 1954 I.R. 161. In Cox v. Hakes the House of Lords had decided that the then existing right of the subject not to be liable to an appeal against a discharge on a writ of habeas corpus, could not be destroyed by the general words of section 19 of the English Supreme Court of Judicature Act 1873 giving to the Court of Appeal power "to hear and determine Appeals from any judgment or order ……… of Her Majesty's High Court of Justice or of any Judges or Judge thereof." The view of the House of Lords was that, having regard to the objects of the statute and the mischief which it was intended to remedy, mere general words could not be construed as sufficient to wipe out a long-standing practice, and, that, for that purpose, express words would have been necessary, such as a specific provision relating to the practice concerning habeas corpus. In The State (Burke) v. Lennon the former Supreme Court had followed Cox v. Hakes and had applied to Article 34.4.3 the rule of construction therein laid down with the result that it held that this constitutional provision did not permit an appeal to the Supreme Court against the granting of an absolute order of habeas corpus. It goes without saying that if this decision were correct the preliminary issue in this case must, by reason of the state of the law at the time of the enactment of the Constitution, be immediately decided in favour of the respondent. However, in Feran's case this Court, in a unanimous decision, took a contrary view to the former Supreme Court. While accepting that the rule of construction adopted in Cox v. Hakeswas appropriate in the interpretation of a statute, this Court rejected the contention that it could be applied to a...

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