State (Byrne) v Frawley

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1978
• Docket Number: [1976 No. 197 SS.]
• Date: 01 January 1978

High Court

Supreme Court

[1976 No. 197 SS.]

The State (Byrne) v. Frawley

The State (at the Prosecution of Michael Byrne)

and

John Frawley

Cases mentioned in this report:—

¹ de Burca v. The Attorney General [1976] I.R. 38.

² McMahon v. The Attorney General [1972] I.R. 69.

³ Williams v. United States (1971) 401 U.S. 646.

⁴ Lemon v. Kurtzman (1973) 411 U.S. 192.

⁵ Linkletter v. Walker (1965) 381 U.S. 618.

⁶ Desist v. United States (1969) 394 U.S. 244.

⁷ Teehan v. Shott (1966) 382 U.S. 406.

⁸ Johnson v. New Jersey (1966) 384 U.S. 719.

⁹ Mackey v. United States (1971) 401 U.S. 667.

¹⁰ Deaton v. The Attorney General [1963] I.R. 170.

¹¹ The State (C.) v. The Minister for Justice [1967] I.R. 106.

¹² Taylor v. Louisiana (1975) 419 U.S. 522.

¹³ Duncan v. Louisiana (1968) 391 U.S. 145.

¹⁴ Corrigan v. Irish Land Commission [1977] I.R. 317.

Constitution - Personal rights - Waiver - Criminal charge - Trial by jury - Jury list made on unconstitutional basis - Basis declared unconstitutional during trial of accused before jury - Jury returning verdict of guilty - No objection to jury made by accused at trial or at subsequent appeal - Habeas corpus - Accused precluded by conduct from raising issue later - Juries Act, 1927 (No. 23), ss. 3, 5 - Constitution of Ireland, 1937, Articles 38, 40.

Habeas Corpus.

The prosecutor, Michael Byrne, was tried in the Circuit Court before His Honour Judge F. Martin and a jury on the 10th, 11th and 17th December, 1975, on an indictment containing two counts. One of the counts charged him with housebreaking and larceny of certain property contrary to s. 26 (1) of the Larceny Act, 1916 and the other count charged him with having received the same property, knowing it to have been stolen, contrary to s. 33, sub-s. 1, of that Act. The jury had been empanelled pursuant to s. 3 of the Juries Act, 1927, the major provisions of which (sub-ss. 1 and 2) were declared unconstitutional by the Supreme Court in de Burca v. The Attorney General.¹ [1976] I.R. 38. The judgments of the members of the Supreme Court in that case were delivered on the 12th December, 1975, while the trial of the prosecutor and his co-accused stood adjourned. On the resumption of the trial of the prosecutor on the 17th December, 1975, no application for the discharge of the jury on the ground of its unconstitutional composition was made by counsel for the prosecution or by counsel for the defence. The trial of the prosecutor proceeded with the existing jury and, on the 17th December, all three accused were acquitted on the charge of housebreaking and larceny, but they were convicted on the charge of receiving. Each of the three accused was sentenced to seven years penal servitude. The respective sentences of the prosecutor's two co-accused were directed to run from the respective expirations of the sentences of imprisonment which they were then serving.

Each of the three accused applied to the Court of Criminal Appeal for leave to appeal against his conviction and sentence. Neither in the grounds specified in the notices of appeal served by the three accused nor in the arguments submitted on their behalf in the Court of Criminal Appeal was any reference made to the unconstitutional composition of the jury. The applications for leave to appeal were refused by the Court of Criminal Appeal (Kenny, Butler and McMahon JJ.) on the 1st March, 1976, and an unsuccessful application was made to that court on behalf of all three accused for a certificate under s. 29 of the Courts of Justice Act, 1924, which was not supported by any point relating to the unconstitutional composition of the jury.

On the 24th May, 1976, the prosecutor, who was then detained in Mountjoy Prison, obtained a conditional order of habeas corpus from the High Court (McMahon J.). The respondent, the governor of the prison, showed cause on the 3rd June, 1976.

Article 38, ss. 1, 2, 5, of the Constitution of Ireland, 1937, provides:—

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

2. Minor offences may be tried by courts of summary jurisdiction."

"5. 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."

Article 40, s. 4, sub-s. 2, of the Constitution provides:—"Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law."

The prosecutor applied to the High Court for an absolute order of habeas corpus, notwithstanding the cause shown, and the application was heard by the High Court (Finlay P., Murnaghan and McMahon JJ.) on the 18th June, 1976, when judgment was reserved.

The prosecutor appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard on the 19th July, 1977.

The prosecutor was arraigned on indictment in the Circuit Court on the 10th December, 1975, and his trial continued before a judge and jury on that day and on the next day when the trial was adjourned to the 17th December. The jury was selected from a panel being part of a list of jurors prepared in accordance with the requirements of the Juries Act, 1927. On the 12th December, 1975, the Supreme Court declared in de Burca v. The Attorney General that the method of preparing jury lists required by the Act of 1927 was inconsistent with the provisions of the Constitution of Ireland, 1937, and that the relevant provisions of the Act of 1927 had not been continued in force pursuant to Article 50 of the Constitution. The trial of the prosecutor continued on the 17th December, 1975, when the jury returned a verdict of guilty on one of the counts of the indictment. The prosecutor was sentenced to a term of penal servitude and he was imprisoned accordingly.

Neither at the trial of the prosecutor nor at the hearing of an appeal by him against his conviction was any objection made by him, or on his behalf, to the method of the preparation of the jury lists from which his jury had been selected or to the unlawfulness of his jury as a body, although one of the counsel who appeared for the prosecutor at his trial had also acted for the successful plaintiff in the de Burca action.

The prosecutor applied for and obtained in the High Court a conditional order pursuant to Article 40, s. 4, sub-s. 2, of the Constitution on the ground that he was not being detained in accordance with the law; and cause was shown by the respondent. At the hearing of the prosecutor's application for an order absolute, it was

Held by the High Court (Finlay P., Murnaghan and McMahon JJ.), in dismissing the application, 1, that an accused who is charged with having committed a major offence may waive his right to be tried before a lawful jury in accordance with the provisions of Article 38, s. 5, of the Constitution.

2. That the prosecutor was precluded by his conduct from objecting to the nature of the jury panel from which his jury had been selected.

de Burca v. The Attorney General [1976] I.R. 38 considered.

3. That, in the circumstances, it was not the duty of the trial judge to discharge the jury.

4. That the objection now made by the prosecutor to the formation of the jury panel in accordance with the requirements of the Juries Act, 1927, would not have been, if made at his trial, a challenge to the array within the meaning of s. 55 of the Act of 1927.

On appeal by the prosecutor, it was

Held by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.), 1, that the appeal should be disallowed.

2. (O'Higgins C.J. and Kenny J. dissenting) Even if the jurors who served at the trial of the prosecutor had all been eligible for such service according to the terms of the Juries Act, 1927, nevertheless they formed an unlawful jury since the gravamen of the complaint made in de Burcav. The Attorney General was that a jury list prepared in accordance with the terms of that Act resulted in juries that were unrepresentative of the community to an impermissible degree.

de Burca v. The Attorney General [1976] I.R. 38 considered.

3. (O'Higgins C.J. and Kenny J. dissenting) That the prosecutor, having elected with knowledge of the de Burca decision to accept the jury sworn at his trial, and having made no complaint in that behalf at the hearing of his appeal against his conviction, was precluded from asserting that such jury was constituted unlawfully.

Corrigan v. Irish Land Commission [1977] I.R. 317 applied.

Cur. adv. vult.

Finlay P. 12th July, 1976

This is an application to make absolute, notwithstanding cause shown, a conditional order of habeas corpus granted to the prosecutor by Mr. Justice McMahon on the 24th May, 1976. Cause was shown to that conditional order by the respondent and the matter was fully argued before this Court on the 18th June, 1976, when judgment was reserved.

The facts out of which this application arises are as follows. The prosecutor was charged on indictment in the Dublin Circuit Criminal Court with larceny and receiving and, on being arraigned on the 10th December, 1975, he pleaded not guilty to those charges when his trial commenced. He was represented by counsel and solicitor. The trial continued on the 10th and 11th December and was then adjourned...