State (DPP) v Walsh

• Jurisdiction: Ireland
• Judgment Date: 16 March 1981
• Date: 16 March 1981
• Docket Number: [S.C. No. 161 of 1978]
• Court: Supreme Court

The State (D.P.P.) v. Walsh

The State (at the Prosecution of the Director of Public Prosecutions)

Applicant

and

Anthony Walsh and Carmel Conneely, Fourth and fifth respondents

[S.C. No. 161 of 1978]

Supreme Court

Constitution - Trial of offences - Mode of trial - Jury - Criminal contempt of court - Scandalising the court - Whether accused entitled to trial with a jury - Whether facts in issue - Attachment for contempt - Constitution of Ireland, 1937, Articles 34, 35, 38, 40, 50.

Section 1 of Article 38 of the Constitution states that no person shall be tried on any criminal charge save in due course of law. Section 2 of that Article states that minor offences may be tried by courts of summary jurisdiction. Having excepted trials under s. 2 (inter alia), the provisions of s. 5 of Article 38 state that "no person shall be tried on any criminal charge without a jury."

On the 9th June, 1976, a Special Criminal Court found two accused guilty of the capital murder of a police officer, and they were sentenced to death. On the 11th June a national daily newspaper published a news item containing the views of an association of people who opposed the death penalty. The news item stated (inter alia) that the members of the Special Criminal Court had no judicial independence and that, in trying the accused, they had "so abused the rules of evidence as to make the court akin to a sentencing tribunal." The prosecutor obtained in the High Court a conditional order attaching the respondents for contempt of court for their part in the preparation and publication of the news item. The conditional order commanded the respondents to attend the court on a specified day "to answer the matters alleged" by the prosecutor. The evidence adduced by the prosecutor when applying for the conditional order showed that the respondent Walsh, as chairman of the association, had accepted full responsibility for the statement which had been issued on behalf of the association, and that the respondent Conneely, as secretary of the association, had issued the statement to the press for publication. The respondents Walsh and Conneely attended on the day specified in the conditional order but they did not adduce any evidence in answer to the matters alleged by the prosecutor. Instead, they submitted that the judge lacked jurisdiction to try them without a jury on charges of contempt of court and, accordingly, they applied for trials with a jury. The judge treated the issue so raised as a preliminary point of law and, having held that the respondents Walsh and Conneely were not entitled to trials with a jury, he adjourned the further hearing of the prosecutor's motion for absolute orders of attachment. The respondents Walsh and Conneely appealed against the refusal of the judge to allow them to be tried with a jury.

Held by the Supreme Court (O'Higgins C.J., Henchy, Griffin, Kenny and Parke JJ.), in disallowing the appeal, 1, that the respondents were charged with the commission of criminal offences.

2. That the High Court had jurisdiction to try the respondents summarily, without a jury, on the charges of contempt of court made by the prosecutor.

3. (Per Henchy, Griffin and Kenny JJ.) That the respondents were charged with the commission of major criminal offences so that the trial of the respondents on those charges was governed, prima facie, by the requirements of Article 38, s. 5, of the Constitution but that, nevertheless, the respondents were not entitled to a trial with a jury since there were no disputed issues of fact requiring the services of a jury for their determination.

The Attorney General v. Connolly [1947] I.R. 213 considered.

4. That, in any event, it was the function of a judge to determine whether established or admitted facts constituted contempt of court by scandalising the court.

Subsequently, as a special concession, the respondents Walsh and Conneely were permitted by the Supreme Court to file affidavits showing cause. The respondent Walsh averred in his affidavit that, although he had instructed the respondent Conneely to send to the press, on behalf of the association, a statement condemning capital punishment and the death sentences passed on the accused, he had not been aware of the contents of the statement prepared by her until after the statement had been published. The respondent Conneely averred in her affidavit that she had been requested by the respondent Walsh to draft a statement on behalf of the association for publication in the press, that her husband had helped her to prepare the statement, that the critical offensive passage had been inserted by her in the statement at her husband's suggestion, and that the husband had been present while she was transmitting by telephone the contents of the statement to the newspaper for publication. The respondents Walsh and Conneely submitted that their affidavits established the existence of unresolved issues of fact which required to be determined by a jury.

Held by the Supreme Court (Henchy, Griffin and Kenny JJ.), in rejecting the submissions, 1, that the respondent Walsh had adopted, and had accepted responsibility for, the statement prepared by the respondent Conneely, and had never dissociated himself from it.

2. That the respondent Conneely could not avail of the former presumption of law that the act of a wife committed in the presence of her husband was caused by his coercion, since that presumption had not survived the enactment of Article 40, s. 1, of the Constitution which declared that all citizens shall be held equal before the law.

Cases mentioned in this report:—

¹ The State (H) v. Daly [1977] I.R. 90.

² The State (Commins) v. McRann [1977] I.R. 78.

³ The Attorney General v. O'Kelly [1928] I.R. 308.

⁴ The Attorney General v. Connolly [1947] I.R. 213.

⁵ In re Earle [1938] I.R. 485.

⁶ R. v. Almon (1765) Wilmot 243.

⁷ Melling v. Ó Mathghamhna ó mathghamhna [1962] I.R. 1.

⁸ Conroy v. The Attorney General [1965] I.R. 411.

⁹ John Fairfax & Sons Pty. Ltd. v. Macrae (1954) 93 C.L.R. 351.

¹⁰ McEnroe v. Leonard—see [1977] I.R. at pp. 81, 83-85.

¹¹ Keegan v. de Burca [1973] I.R. 223.

¹² In re Haughey [1971] I.R. 217.

¹³ Quigley v. Creation Ltd. [1971] I.R. 269.

¹⁴ Berry v. Irish Times [1973] I.R. 368.

¹⁵ In re Clements (1877) 46 L.J. (Ch.) 375.

¹⁶ Attorney General v. Butterworth [1963] 1 K.B. 696.

¹⁷ R. v. Tibbits [1902] 1 K.B. 77.

¹⁸ Green v. United States (1958) 356 U.S. 165.

¹⁹ United States v. Barnett (1964) 376 U.S. 681.

²⁰ Cheff v. Schnackenberg (1966) 384 U.S. 373.

²¹ Bloom v. Illinois (1968) 391 U.S. 194.

²² Dyke v. Taylor Implement Co. (1968) 391 U.S. 216.

²³ Frank v. United States (1969) 395 U.S. 147.

²⁴ Baldwin v. New York (1970) 399 U.S. 66.

²⁵ Taylor v. Hayes (1974) 418 U.S. 488.

²⁶ Codispoti v. Pennsylvania (1974) 418 U.S. 506.

²⁷ Quinn's Supermarket v. The Attorney General [1972] I.R. 1.

²⁸ McMahon v. The Attorney General [1972] I.R. 69.

²⁹ In re Hibernia National Review [1976] I.R. 388.

³⁰ R. v. Gray [1900] 2 Q.B. 36.

³¹ The State (Quinn) v. Ryan [1965] I.R. 70.

³² Balogh v. St. Albans Crown Court [1975] Q.B. 73.

³³ James v. Robinson (1963) 109 C.L.R. 593.

³⁴ de Burca v. The Attorney General [1976] I.R. 38.

³⁵ The People v. Murray [1977] I.R. 360.

³⁶ The King v. Dolan [1907] 2 I.R. 260.

³⁷ The State (Browne) v. Feran [1967] I.R. 147.

³⁸ In re Kennedy and McCann [1976] I.R. 382.

³⁹ Stradling v. Morgan (1560) 1 Plowd. 199.

⁴⁰ Cox v. Hakes (1890) 15 A.C. 306.

⁴¹ Attorney General v. Times Newspapers Ltd. [1974] A.C. 273.

⁴² The Sunday Times v. The United Kingdom (1979) 2 E.H.R.R. 245.

⁴³ Danchevsky v. Danchevsky [1975] Fam. 17.

⁴⁴ R. v. Green (1913) 9 Cr. App. R. 228.

⁴⁵ R. v. Stapleton (1828) 1 Cr.&D. 163.

⁴⁶ R. v. Hallett (1911) 45 I.L.T.R. 54.

⁴⁷ Lynch v. Director of Public Prosecutions [1975] N.I. 25.

Appeal from the High Court.

On the 9th June, 1976, a Special Criminal Court found Marie Murray and her husband, Noel Murray, guilty of the capital murder of Garda Michael Reynolds on the 11th September, 1975, contrary to s. 1 of the Criminal Justice Act, 1964, and sentenced both accused to death. Each accused applied to the Court of Criminal Appeal1 for leave to appeal against conviction. While those applications were pending before the Court of Criminal Appeal, The Irish Times newspaper published on the 11th June, 1976, a news item which was attributed to Richard Walsh, its political correspondent. That item was headed "Cabinet may urge easier sentence" and it consisted of a statement which had been issued to that newspaper on behalf of the Association for Legal Justice, of which the respondent Anthony Walsh was president and the respondent Carmel Conneely was secretary. The statement appears in the judgment of the Chief Justice at p. 420, infra.

On the 21st June, 1976, the Director of Public Prosecutions applied ex parte to the High Court (Finlay P.) for orders of attachment or committal and sequestration for contempt of the Special Criminal Court to be directed to Irish Times Ltd. (the publisher of The Irish Times), Fergus Pyle (the editor of that newspaper), Richard Walsh (the staff journalist who was responsible for the news item), and the respondents Anthony Walsh and Carmel Conneely. The application was grounded upon the affidavit of Garda Edward Carey which was filed on the same day. On that date the President of the High Court ordered the five respondents to "attend before the Court on Monday the 5th July, 1976 at 2 p.m. to answer the matters alleged in the said affidavit."

On the 5th July, 1976, the five respondents appeared in the High Court before the President, each respondent being represented by solicitor and counsel. On that occasion the first three respondents gave an explanation of their involvement in the publication of the statement and proffered to the Court an apology therefor; the President made no order against those respondents and he adjourned the...