State (DPP) v Walsh & Conneely
| Jurisdiction | Ireland |
| Judge | Henchy J.,O'HIGGINS C.J. |
| Judgment Date | 06 February 1981 |
| Neutral Citation | 1981 WJSC-SC 388 |
| Docket Number | (161/78) |
| Court | Supreme Court |
| Date | 06 February 1981 |
1981 WJSC-SC 388A
THE SUPREME COURT
O'Higgins C.J.
Henchy J.
Griffin J.
Kenny J.
Parke J.
JUDGMENT delivered the 6th day of February 1981by O'HIGGINS C.J. [Parke J. concurring]
Over four years have now elapsed since the trial in the Special Criminal Court, which forms the background to these proceedings for attachment for contempt, took place. It is unnecessary to enquire into the reason for this long delay. It is, I think, sufficient to say that this passage of time has in no way minimised the seriousness of the issues involved in this case or the gravity of the offence-for which the attachment of the Defendants is sought.
On the 9th June 1976 the trial of Marie and Noel Murray on the charge of the capital murder of Garda Michael Reynolds concluded in the Special Criminal Court. The trial resulted in their conviction and the passing upon them of the mandatory sentence of death. Against this conviction and sentence an appeal was brought to the Court ofCriminal Appeal. Various grounds of appeal were advanced, some of which related to the rulings as to evidence made by the Special Criminal Court, and, to the general conduct of the trial. On the 29th July 1976 the Court of Criminal Appeal dismissed both appeals on all the grounds advanced. With regard to the conduct of the trial the Judgment of the Court contained the following passage:
"There is a final and general ground of appeal to the effect that the trial was unsatisfactory. In the view of this Court not only was the trial of both accused conducted with admirable patience and fairness by the Special Criminal Court but, under the most extreme provocation, the greatest courtesy and consideration was extended to both accused. The Court, and in particular the presiding Judge, at all times took the greatest possible care to see that the accused's own actions and conduct did not put them at a disadvantage. The evidence with regard to their involvement in the bank raid and in the subsequent murder of Garda Reynolds did not rest merely on their statement but also on a vast amount of other evidence which pointed unequivocally at their guilt. Their trial was conducted with absolute fairness and cannot becriticised."
The Court of Criminal Appeal allowed an appeal to the Supreme Court on grounds not relevant to these proceedings.A new trial took place of one of the accused. The end result was that both accused were convicted of non-capital murder. The reason for the re-trial is in no way relevant to any issue arising on this case.
On the 11th June 1976 while this appeal was pending before the Court of Criminal Appeal The Irish Times carried a news item referring to the trial and conviction of the Murrays under the heading: "Cabinet may urge easier sentence". This news item was attributed to "Dick Walsh, Political Correspondent" and it contained the following paragraph:
"The Association of Legal Justice (Dublin Branch) said that it condemned the sentence unreservedly. It was particularly reprehensible because it was passed by the Special Criminal Court, a Court composed of Government -appointed Judges having no judicial independence, which sat without a jury and which so abused the rules of evidence as to make the Court akin to a sentencing tribunal, a statement claimed. The imposition of the death penalty for the murder of a Garda was illogical as it destroyed the principle that violence begot violence."
On the 21st June 1976 the Director of Public Prosecutionapplied ex parte to the President of the High Court for Orders of Attachment, Committal or Sequestration for contempt of the Special Criminal Court against The Irish Times Limited, Fergus Pyle (the Editor), Richard Walsh (journalist and political correspondent), Anthony Walsh and Carmel Conneely. In the supporting Affidavit sworn by Garda Carey it was stated that Anthony Walsh was chairman of the body known as the Association for Legal Justice and that he had, in an interview with the Deponent, accepted full responsibility for the statement which had been issued. It was also stated in this Affidavit that Carmel Conneely was the secretary of the Association and that she had admitted to the Deponent that she had issued the statement in question to the newspaper. A Conditional Order having been made, the President of the High Court decided to deal with the question of the involvement of the first three parties separately to that of the two last-named Defendants, Anthony Walsh and Carmel Conneely. He did so because of a claim made by these two Defendants that the attachment proceedings brought against them amounted to a charge of acriminal offence in respect of which they were entitled under Article 38.5 of the Constitution to a trial by jury.
On the 3rd July 1977 having heard what was said on behalf of the first three parties the President of the High Court decided to make no Order against them. On the 3rd July 1978 having heard legal arguments advanced on behalf of the last two Defendants, the Appellants in these proceedings, in support of their application for trial by jury, he decided to refuse this application and to adjourn the further hearing of these proceedings for attachment. Against this decision refusing the application for trial by jury, this appeal has been brought to thisCourt.
In order clearly to appreciate the important issues involved in this case and to follow the arguments advanced in support of it, it is necessary to differentiate the contempt, with which this case is concerned, from other forms of contempt. Such other forms of contempt may be contempts in facie curiae which consist of conductobstructive or prejudicial to the course of justice committed during court proceedings; or contempts committed outside court, known as constructive contempts, where pending proceedings may be interfered with or prejudiced by what is said or done. The conduct or comment complained of in this case falls under neither of these headings. It did not take place in facie curiae and was not related to proceedings pending before the court which was criticised. It is a form of contempt which falls within the archaic description of scandalising the court. This form of contempt is committed where what is said or done is of such a nature as to be calculated to endanger public confidence in the court which is attacked and thereby to obstruct and interfere with the administration of justice. It is not committed by mere criticism of judges as judges or by the expression of disagreement, even emphatic disagreement, with what has been decided by a court. The right of the citizens, subject to public order, to express freely convictions and opinions is wide enough to comprehend such criticism or expressed disagreement. Such contempt occurswhere wild and baseless allegations of corruption or malpractice are made against the court so as to hold the judges "to the odium of the people as actors playing a sinister part in a caricature of justice" (Mr. Justice Gavan Duffy 1947 I.R. at 220). It is not in dispute that what is complained of in this case can fall within this description - nor is it disputed that, if it does, it amount; to a crime and a serious crime at that. What is in dispute is whether the charge of having committed such a crime may be investigated and tried summarily by the High Court or whether the provisions of Article 38.5 of the Constitution require that it be tried with a jury.
Prior to the foundation of the Irish Free State, the Courts in Ireland exercised a summary jurisdiction in respect of all forms of criminal contempt. Contempts committed in facie curiae were dealt with by the court or judge concerned while constructive contempts were dealt with by a divisional bench of the High Court. In this regard the Irish courts followed the law upon contempt enunciatedin a long line of decisions in the English courts. (See R. vDolan 1907 2 I.R. 260). Following the foundation of the State the question arose in A.G. v.O'Kelly 1928 I.R. 308 as to whether a similar jurisdiction was exercisable in the courts of the new State, having regard to the Constitutional right to trial by jury on criminal charges contained in Article 72 of the Constitution of the Irish Free State. In that case a divisional bench of the High Court under the presidency of the then President of the High Court, Mr. Justice Sullivan, answered unanimously in the affirmative. The question again arose following the enactment of the Constitution of Ireland, in A.G. v. Connolly 1947 I.R. 213. Again a divisional bench of the High Court under the then President of the High Court decided, unanimously, that despite the provisions of Article 38.5 of the Constitution prohibiting trials on criminal charges without a jury, a summary jurisdiction in relation to criminal contempt was exercisable by the courts. One might feel that as precisely the same question arises on this appeal these decisions of long standing should conclude the matter.Ido not hold this view, however, because it seems to me that the question is of such importance as to require a fresh examination by thisCourt.
It may be convenient, if at this stage, I refer to the case or argument advanced on behalf of the Appellants. As already indicated, they do not dispute that the statement complained of, if untrue and baseless, amounts to a criminal contempt. In fact they assert that as such it would amount to a crime of such seriousness as not to qualify for summary trial under Article 38.2 of the Constitution. They contend that, having been proceeded against on attachment, they are persons charged with a serious criminal offence and that being so charged their right to trial by jury is...
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