Supreme Court of Ireland Decisions

People (D.P.P.) v. O'Callaghan [2004] IESC 2 (16 January 2004)

 
THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

M^cGuinness J.

M^cCracken J.

132/03

IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924

BETWEEN

THE PEOPLE (at the suit of the Director of Public Prosecutions)

APPELLANT

AND KEITH O'CALLAGHAN

DEFENDANT / RESPONDENT

JUDGMENT delivered the 16^th day of January 2004 by Keane C.J. [Nem Diss]

Introduction

This appeal comes before the court as a result of a certificate granted by the Court of Criminal Appeal under s. 29 of the Courts of Justice Act, 1924 (hereafter "the 1924 Act") certifying that its decision of the 18^th December, 2000 involved a point of law of exceptional public importance. Unusually – it may be uniquely – the certificate was granted on the application, not of the defendant / respondent (hereafter "the respondent"), but of the appellant (hereafter "the D.P.P."). The written submissions filed by the respondent in response to those filed on behalf of the D.P.P. in relation to the certified question raised a preliminary issue as to the jurisdiction of this court to hear an appeal purportedly brought by the D.P.P. from a decision of the Court of Criminal Appeal quashing a conviction and ordering a retrial. This court was of the view that the preliminary issue should be considered and decided by the court before it embarked on a hearing in relation to the certified point.

It should be pointed out at the outset that the attention of the Court of Criminal Appeal does not appear to have been drawn to any possible difficulty that might arise in relation to the granting of a certificate by the D.P.P. in the circumstances of the present case and that, accordingly, the matter was fully argued for the first time in this court. However, while this court is normally reluctant to consider and determine an appeal for reasons which were never the subject of argument or a decision in the High Court, it is clear that where, as here, a serious question is raised as to their jurisdiction to hear the appeal, that issue must be resolved, albeit for the first time, by this court.

The factual background to the case is as follows. The respondent was charged with the crime formerly known as arson at a house in Waterford on the 25^th November, 1996. (The offence is now properly described as causing damage by fire to a dwelling house without lawful excuse contrary to s. 2(4) and (5) of the Criminal Damage Act, 1991.) He was tried twice at Waterford Circuit Court in respect of this charge. The jury failed to agree in the first trial before His Honour Judge M^cCartan and a jury and a second trial took place before His Honour Judge Matthews and a jury. That trial concluded in the recording of a verdict of guilty and the respondent was sentenced to four years imprisonment. The respondent having been refused leave to appeal the conviction and sentence, an application for leave to appeal came before the Court of Criminal Appeal.

In the course of the first trial, the prosecution indicated that they would be calling as a witness a lady named Patricia Purcell. Her evidence, as set out in the Book of Evidence, was that she lived in the house in question from the 11^th March, 1992 until about the middle of November, 1996 with her two children. The statement of her evidence recounted an incident on the 29^th October, 1996 when a person whom she subsequently identified as the respondent, but who was at that stage a stranger to her, knocked on her front door. He told her that there were some people in her back garden and that he just wanted to let her know that. He then continued to talk to her, asked her for a drink of water and a cigarette, which she gave him, asked her to come out with him which she refused to do, and then attempted to kiss her. Her statement further recounted that he eventually left, but that she saw him on subsequent occasions in the vicinity of her house and that, on another occasion, he knocked on her door.

The defence objected to the adduction of this evidence at the first trial on the ground that it was more prejudicial than probative. The prosecution submitted that the evidence should be admitted as indicating a link of a very distinct nature between the respondent and the occupier of the house alleged to have been burnt. The trial judge ruled that the evidence was not relevant "in the context of the charge". He indicated, however, that the prosecution could renew their application to have the evidence admitted at any stage. On the second trial before His Honour Judge Matthews, the evidence was again objected to, but it would appear that the trial judge was not informed in any detail of the ruling on the first trial. He treated it as relevant on the ground that "it goes to possible motive". He also treated it as "relevant to the res gestae", and admitted it on that ground also but accepted that it was "more prejudicial than probative".

The notice of appeal served on behalf of the respondent set out six grounds of appeal. The first was

"That the learned trial judge erred in principle and in law in allowing the witness Patricia Purcell to give evidence that the accused had been stalking her in circumstances where the accused was not charged with any offence in that regard and the prejudicial nature of the evidence given outweighed its probative value."

As to the further grounds of appeal set out in the notice of appeal, it is only necessary to refer to No. 5, i.e.

"That the learned trial judge erred in principle and in law in his direction to the jury in relation to the onus to be discharged by the prosecution and the meaning of the principle of beyond reasonable doubt."

In an ex-tempore judgment delivered on the 15^th May, 2000, the Court of Criminal Appeal (Hardiman J., O'Sullivan J. and Ó Caoimh J.) indicated that it would treat the application for leave to appeal as the hearing of the appeal, allow the appeal and direct a retrial. The respondent was also released on bail. While this court was not furnished with any approved transcript of that judgment, we were informed on the hearing of this appeal that the court allowed the appeal on the two grounds to which I have referred. However, in relation to the first of these grounds it indicated that it would deliver a written judgment at a later date.

The judgment of the court setting out its reasons for allowing the appeal on the first ground was delivered by Hardiman J. on the 18^th December, 2000. It is pointed out in the judgment that the concept of the res gestae which was invoked by the trial judge had no application to the facts of the present case and that since he appears to have thought that the evidence was of only "slight relevance", the question of whether its prejudicial effect outweighed that relevance should have been addressed. The court then identified the issue with which the judgment was concerned in these terms:

"The central issue which this judgment addresses is whether the finding of His Honour Judge M^cCartan on the first trial that the evidence was inadmissible because irrelevant precluded its admission at the second trial. The [respondent] contended on this appeal that the evidence should be excluded on the basis of issue estoppel or on the alternative basis that to permit it to be adduced at the second trial would be an abuse of process."

The judgment then goes on to consider that particular issue in considerable detail. In addition to the authorities which appeared to the court to bear on the matter in this jurisdiction, the leading cases being Dublin Corporation –v- Flynn [1980] IR 357, Kelly –v- Ireland [1986] ILRM 318, Ryan –v- Director of Public Prosecutions [1988] IR 232 and Breathnach –v- Ireland [1989] IR 489, the court went on to consider a number of authorities from other jurisdictions, i.e. the United Kingdom, the United States and Canada. The court's conclusions are succinctly summarised as follows:

"It is important to emphasise that it has not been necessary for the purpose of this appeal to decide whether the proposed evidence in question is or is not relevant or is or is not more prejudicial than probative. Where issue estoppel arises, it is not because the first decision was necessarily right, but because it must be taken as correct. The whole of the Latin phrase about res judicata is as follows:

'Res judicata pro veritate accipitur'; or, loosely translated, the decided issue is to be taken as correct.

"Accordingly, we will grant leave to appeal, treat the hearing of the application for leave as the hearing of the appeal, set aside the conviction and direct a new trial on the additional basis that the question of the admissibility of the proposed evidence of witness No. 5 is res judicata. We have already noted several times that the basis on which this was so was not adequately explained to His Honour Judge Matthews. In fairness to counsel, it should be said that they lacked the transcript of the first trial: the court has had the relevant portion prepared and has made it available to the parties before reopening the argument on this issue on this appeal. Nevertheless, this court is of the opinion that there was sufficient reliance on the decision of His Honour Judge M^cCartan to enable this matter to be canvassed before this court.

"In these circumstances it is not necessary to consider arguments based on alleged abuse of process."

There followed the application on behalf of the D.P.P. under s. 29 of the 1924 Act, as a result of which the Court of Criminal Appeal granted the following certificate:

"The court doth hereby certify pursuant to s. 29 of the [1924 Act] that its decision issued on the 18^th day of December, 2000 quashing the conviction of the applicant by the Waterford Circuit (Criminal) Court on the 4^th day of February, 1999 on a charge of arson and directing that the applicant be retried for the said offence 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 from that decision.

"The point of law concerned is:-

"Whether the Court of Criminal Appeal was correct in deciding that the question of the admissibility at the trial of the applicant of certain evidence was res judicata having regard to the ruling of the trial judge in an earlier trial (which ended in a disagreement by the jury) that such evidence was inadmissible and that such evidence should not therefore have been admitted in evidence by the trial judge in the subsequent trial which resulted in the conviction of the applicant as aforesaid."

The notice of motion served on behalf of the D.P.P. in which the court was asked to grant the certificate under s. 29 identified a further point of law which was said to be of exceptional public importance, i.e.

"Whether evidence as to motive and evidence identifying a connection between an accused assailant and his victim can be led in evidence by the prosecution."

While we were told by counsel on the hearing of the appeal that a certificate under s. 29 had been granted in respect of that point also, we were not furnished with any such certificate nor is it referred to in the order of the Court of Criminal Appeal of the 30^th July, 2001. Moreover, the ex-tempore judgment of the court delivered on that day made it clear that the certificate being issued by the court did not define the point of law in the same terms as the notice of motion. I am satisfied that this court should proceed on the basis that the certified point of law was as stated in the certificate of the court, the terms of which I have already set out.

The relevant law

Before summarising the respective contentions of the parties, I should set out s. 29 of the 1924 Act. It 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."

It appears that the question as to whether this section confers any right on the Attorney General (or now the D.P.P.) to appeal from any decision of the Court of Criminal Appeal to the Supreme Court has been considered in only one reported case, i.e. the decision of the former Supreme Court in Attorney General –v- Kennedy [1946] IR 517. It will be necessary to consider that decision in greater detail at a later point: at this stage, it is sufficient to note that the majority of the court held that no such appeal lay from an order of the Court of Criminal Appeal which simply quashed a conviction without ordering a retrial. In two of the judgments (those of Geoghegan J. and O'Byrne J.) it was stated that the judgment was directed solely to a case in which the appeal was against what was described as "a verdict of acquittal".

Submissions of the parties

On behalf of the D.P.P., Mr. Peter Charleton S.C. submitted that the decision in Kennedy was clearly distinguishable. It dealt solely with a case in which the Court of Criminal Appeal had quashed a conviction without directing a retrial and it was clear from the majority judgments that the principle that there should be no appeal against an acquittal played a crucial part in the decision. By contrast in this case there had been no acquittal of the respondent. The question as to whether res judicata or issue estoppel precluded the adduction of the evidence in question would be a live issue in the retrial and, accordingly, it was not appropriate that the retrial should take place in circumstances where what the D.P.P. submitted to be an erroneous view of the law had been adopted by the Court of Criminal Appeal without a final determination of the question by this court.

Mr. Charleton further submitted that, as was apparent in Kennedy, the language of s. 29 was at the least obscure or ambiguous and that this court, in determining the proper construction of the provision, should adopt an interpretation which would result in the final and authoritative determination of a question of law of exceptional public importance, which this had been held to be by the Court of Criminal Appeal.

Mr. Charleton further submitted that it had to be borne in mind that, since the decision in Kennedy, it had been decided by this court in The People (D.P.P.) –v- O'Shea [1982] IR 384 that, in the light of Article 30.4.3, the prosecution enjoyed a right of appeal against an acquittal in the Central Criminal Court, which right remained in existence until the enactment of s. 11(1) of the Criminal Procedure Act, 1993. He also cited in this context the decisions of The People (D.P.P.) –v- Quilligan [1987] ILRM 606, The People (D.P.P.) –v- Quilligan (No. 2) [1989] IR 46 and The People (D.P.P.) –v- Quilligan (No. 3) [1993] 2 IR 305. He submitted that, if this court were of the view that the decision in Attorney General –v- Kennedy excluded an appeal by the D.P.P. in a case such as the present, it should not be followed, since it was inconsistent with the constitutional right of appeal to the Supreme Court identified by the decision of the majority in The People (D.P.P.) –v- O'Shea.

On behalf of the D.P.P., Mr. Michael Counihan S.C. submitted that the approach adopted by the majority in Attorney General –v- Kennedy was that which should be adopted in the present case. That decision depended essentially on the construction adopted by the court of s. 29, which was that it envisaged an appeal to this court solely by an appellant from the court of trial to the Court of Criminal Appeal. In any event, in a case such as the present, where the D.P.P. was not disputing the correctness of the decision of the court of appeal to order a new trial on the other ground relied on, he could not be said to be appealing against the "determination" or "decision" of the Court of Criminal Appeal. The "determination" or "decision" in question was to the effect that there should be a new trial and what the D.P.P. was endeavouring to achieve in this case was a form of advisory judgment which could be relied on by the D.P.P. in the new trial. Mr. Counihan submitted that s. 29 could not be construed so as to confer on this court an advisory jurisdiction of that nature.

Mr. Counihan also urged that, in a statute of this nature, if the provision was in any sense ambiguous, it should not be construed in a manner which would be prejudicial to the interests of the convicted person and that, in particular, it should not be interpreted so as to permit the prosecution to avail of the appeal by the respondent to the Court of Criminal Appeal for the purpose of obtaining a further ruling from this court which would at best be neutral and at worst prejudicial to the interests of the respondent. He cited in this context observations of Walsh J. in A.G. –v- Giles [1974] IR 423 and of Henchy J. in The People (Attorney General) –v- Griffin [1974] IR 416.

Mr. Counihan further submitted that significance must be attached to the fact that in s. 34 of the Criminal Procedure Act, 1967 a procedure was provided under which the D.P.P., in the case of an acquittal by direction on a question of law, could refer the question of law to this court for determination, but without prejudice to the verdict in favour of the accused. Apart from the procedure by way of consultative case stated provided for by s. 16 of the Courts of Justice Act, 1947, that was the only mode in which, in the case of a criminal trial on indictment, the prosecution could obtain rulings of law from the Supreme Court. He submitted that, if the legislature had at any stage intended to confer on this court the additional jurisdiction contended for in this case, they would not have done so in such an oblique and indirect fashion. He also relied on the provisions of s. 3 of the Criminal Justice Act, 1993 which, in the case of applications by the D.P.P. for a review of a sentence on the ground of undue leniency, expressly permitted an appeal to this court by the Director of Public Prosecutions.

Conclusion

The establishment of the Court of Criminal Appeal in 1924 constituted a new and radical departure in our law. Remarkable as it may seem to us today, prior to its enactment a person convicted on indictment had no right of appeal from the verdict of the jury. The only manner in which the conviction could be set aside was by the procedure known as writ of error which enabled matters of law appearing on the face of the record to be reviewed by the Court of King's Bench. That procedure, however, which applied to both convictions and acquittals, could only be set in train by the fiat of the Attorney General. It was in no sense equivalent to the new right of appeal conferred in England and Wales in 1907 and in Ireland in 1924. For the first time, an appellate court was now empowered to review the transcript of the entire trial on the application of the convicted person and quash the conviction on grounds such as the insufficiency or inadmissibility of the evidence leading to the conviction, misdirection by the trial judge and even more general grounds, such as the unsatisfactory nature of the trial. In the history of the modern criminal law, it ranks second only in importance to the 19^th century statutes which for the first time allowed the accused to give evidence in his or her defence. When it is remembered that it was enacted at a time when capital punishment was the only sentence which a court could impose following a guilty verdict in a murder trial and that such sentences were regularly carried into effect by the executive, the profound significance of the reform it represented can hardly be overstated.

The principal argument advanced on behalf of the D.P.P. is that while, as found in Kennedy, s. 29 cannot be read as allowing an appeal by him to this court in the case of a pure acquittal – i.e. the quashing by the Court of Criminal Appeal of a verdict of guilty without any order for a retrial – it is permitted in any other case. It would follow that in a case where the retrial is ordered on the basis of one ground only by the Court of Criminal Appeal – which is not this case – it would be the contention of the D.P.P. that, provided an appropriate certificate in respect of that ground is granted either by the Court of Criminal Appeal or by the D.P.P. himself, an appeal by him can be entertained by this court. If that argument is correct, it would follow that, in such a case, this court would be entitled to restore the conviction and, presumably, the sentence imposed by the court of trial. (There would seem to be no basis for imposing any other sentence in a case where the applicant's original appeal was confined to the conviction or in a case where the sentence was mandatory, as in murder.)

As I have noted, the giving of a certificate either by the Court of Criminal Appeal or the D.P.P. himself is clearly a necessary statutory precondition to the entertaining by this court of such an appeal, assuming s. 29 confers the claimed jurisdiction on this court. There is nothing in the wording of the section to suggest that the D.P.P. is precluded from granting a certificate in his own favour and then applying to this court by way of appeal and this was the course in fact adopted by the Attorney General in Kennedy. In his judgment in that case, Murnaghan J. observed

"It would also be curious practice if the Attorney General could apply for a certificate to the Court of Criminal Appeal and then possibly, being refused, could himself grant a certificate in order to appeal against an order of acquittal."

However, if the submission advanced on behalf of the D.P.P. in the present case is correct, it would seem to follow that, if the Court of Criminal Appeal had declined to grant him the certificate he sought in this case, he could then have granted himself a certificate in order to appeal in this case.

Attorney General –v- Kennedy must now be considered in more detail. In that case, the applicant had been convicted upon indictment before a Special Criminal Court upon a number of charges alleging that he had contravened a provision in an emergency order made under the Emergency Powers Act, 1939 which constituted an offence under the Act. At the trial, stationery office copies of the relevant emergency orders were produced by the prosecution, but they 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. That court treated the application for leave to appeal as the appeal and quashed the conviction and sentences on what could fairly be described as this purely technical ground. The Attorney General then issued the certificate already referred to certifying that the 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. Notice of appeal was thereupon served on his behalf. Counsel for the accused having made a preliminary application for the dismissal of the appeal on the ground that the decision of the Court of Criminal Case in such a case was final, conclusive and unappealable, it was held by the Supreme Court (Murnaghan, Geoghegan, O'Byrne and Black JJ.; Martin Maguire J. dissenting) that it had no jurisdiction to hear the appeal.

In his judgment, Murnaghan J. said that, in his opinion, s. 29, which allowed an appeal in general words, did not mean that anyone could apply for a certificate and enter an appeal. Having referred to some earlier decisions in England and Ireland, he concluded that

"They seem to me to establish that, where the prosecutor is not named in the statute giving an appeal from the decision of a lower court, he cannot appeal against an acquittal on a criminal charge. It seems to me that in such a case, a prosecutor has no appealable interest, or it may be expressed as a rule of construction that mere general words are not enough to cover a disappointed prosecutor. He must be specially named."

The learned judge also drew attention to the provisions of the English Criminal Appeal Act, 1907 which specifically mentioned the Director of Public Prosecutions as a person who could obtain a certificate of the Attorney General in order to appeal to the House of Lords.

Geoghegan J. referred to the same authorities as those discussed by Murnaghan J., and concluded that the words in the section were not merely obscure, but, applied, as they must be, in conjunction with s. 31 of the 1929 Act, could not be construed as granting the right claimed by the Attorney General.

Section 31, it should be noted, is the provision which confers the right of appeal from the Central Criminal Court and what was then described as the "High Court circuit" to the Court of Criminal Appeal. It provides that

"A person convicted on indictment before the Central Criminal Court or before any court of the High Court circuit may appeal under this Act to the Court of Criminal Appeal under the following conditions –

(i) If the appellant obtains a certificate from the judge who tried him that the case is a fit case for appeal;

(ii) In case of refusal of such certificate if the Court of Criminal Appeal on appeal from such refusal grant leave to appeal."

In his judgment, O'Byrne J. said he was inclined to think that s. 29 was, in terms, sufficiently wide to include appeals by the Attorney General but that, if the matter rested there, it would be necessary to consider carefully the submission on behalf of the accused that a right of appeal against an acquittal could only be granted by words which were clear, express and free from ambiguity. He considered, however, that the matter was concluded by s. 5 of the Courts of Justice Act, 1928.

That was the provision which amplified the powers of the Court of Criminal Appeal and, on appeal the Supreme Court, by enabling the court to order a retrial. Byrne J. first referred to subparagraph (a) which provided that

"The [Court of Criminal Appeal or Supreme Court] may, notwithstanding that they are of opinion that a point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred."

The learned judge said that he would not have expected the Oireachtas to refer to an acquittal as constituting or involving a miscarriage of justice and that led him to the view that the legislature was dealing only with appeals by accused persons.

O'Byrne J., however, did not rest his judgment on s. 5(a) alone. He was of the view that s. 5(b) empowering the Court of Criminal Appeal and the Supreme Court to order a retrial raised greater difficulties in accepting the Attorney General's submission. He instanced a case in which the Court of Criminal Appeal holds in favour of an appellant on the ground of insufficiency of evidence, but rejects the appeal on the ground of material misdirection by the trial judge. In such a case, he said, the Court of Criminal Appeal would quash the conviction and would not order a new trial, because there was not sufficient evidence to justify a conviction. If the Attorney General thereafter appealed on a certificate to the Supreme Court, that court might take a different view from the Court of Criminal Appeal on both points, i.e. it could hold that there was ample evidence to justify a conviction but that there was material misdirection by the trial judge. He said that in such a situation the Supreme Court could not restore the conviction, because of the misdirection of the trial judge, but at the same time could not order a new trial because it had not reversed the conviction. In the result, it could only allow the acquittal to stand, although the Court of Criminal Appeal, if it had arrived at the same conclusion, would have had the power, and would normally have exercised the power, of directing a new trial. He said that it seemed to him unreasonable to suppose that the legislature could have intended such a result. He expressed his conclusion as follows:

"I am of opinion that it was not intended that there should be a right of appeal by the Attorney General from a verdict of acquittal, and that the right of appeal to the Supreme Court, mentioned in s. 29, was conferred only upon a convicted person who obtained the necessary certificate for this purpose from the Court of Criminal Appeal or the Attorney General. This construction has the effect of harmonising the two sections and preventing any absurd consequences resulting from s. 5 of the Act of 1928."

It should be pointed out, with respect, that there are two difficulties in the approach adopted by O'Byrne J. In the first place, as Black J. pointed out in his judgment, there seems no reason why the acquittal of a guilty person should not be regarded as a miscarriage of justice, albeit of a significantly less grave character than the conviction of an innocent person. In the second place, as to s. 5(b), it is not easy to see why, on the hypothesis envisaged, a new trial could not be ordered by the Supreme Court "because it had not reversed the conviction". The learned judge seems to have overlooked the fact that the Court of Criminal Appeal, before it can order a new trial must reverse or quash the conviction. There seems no reason why the same result should not follow, where appropriate, in the case of the Supreme Court.

In his judgment, Black J., while acknowledging that s. 29 does not expressly limit the right of appeal which it confers on a convicted person, said that it was also necessary to have regard to the Act as a whole in construing any of its provisions. The learned judge also referred to another principle of construction, which he described as equally well established, i.e. that the same words in different parts of a statute, and a fortiori in different parts of the same section, should be given the same meaning. In the case of s. 29, the word "appeal" was used four times, the first time expressly referring to an appeal to the Court of Criminal Appeal and, in the remaining instances, expressly referring to an appeal to the Supreme Court. He said that, while its meaning when first used was different from its meaning when used secondly in respect of the court to which the appeal was to lie, this was because the section expressly said so. But he was also of the view that the position was otherwise in respect of the party who might appeal: there was nothing in the section or elsewhere in the Act which expressly or impliedly showed that the word "appeal" as first used in s. 29 was to have a different meaning from what it had when used secondly in respect of the party to whom the right was given. He said it was clear, from reading ss. 29, 31 and 63 of the 1924 Act together, that the word "appeal" when first used unquestionably meant an appeal by the convicted person only. He summed up his conclusion as follows:

"In accordance with the principle of construction stated, it should be inferred that the legislature intended it [the word "appeal"] to be limited to the convicted person wherever else it is used in the same section, unless this limitation is expressly or impliedly excluded by some other words of the Act and there are no such words anywhere in the Act."

He added that this view was supported by s. 5 of the 1928 Act. As already noted, he was, however, more impressed by the argument grounded on s. 5(b) than upon s. 5(a), since he did not consider it wholly inappropriate to describe a wrongful acquittal as a miscarriage of justice. He was also of the view that the dominant object of the legislature in enacting s. 29 of the 1928 Act was not to permit an appeal in every case where a legal point of exceptional public importance was involved: if it was, it would have been inconceivable, in his view, that the legislature would not have conferred a right on the Attorney General to appeal to the Court of Criminal Appeal where such a point of law was involved.

Martin Maguire J., in his dissenting judgment, laid emphasis on the fact that there were no words of limitation in this section and considered that the legislature might well have intended that the Attorney General was the proper person to put forward and maintain a point of law of exceptional public importance where it was desirable in the public interest that an appeal should be taken to the Supreme Court for its final and authoritative decision. He was of the view that, having regard to the legal position of the Attorney General, he could see no force in the objection that it was not intended that he should be in a position to grant a certificate pursuant to s. 29.

While there are passages in the judgments in Kennedy which lay particular emphasis upon the difficulty of construing s. 29 in a manner which would permit of the reversal of an acquittal of an accused person, it is clear that, ultimately, each of the judgments treated the essential question as being whether, construed in accordance with the usual canons of statutory interpretation, s. 29 could be read as conferring on the Attorney General a right of appeal from the Court of Criminal Appeal to the Supreme Court. No doubt the decision can be distinguished on the ground that, as two of the judges in the majority pointed out, it did not address the question as to whether a similar result would follow in cases where the judgment of the Court of Criminal Appeal did not result in the acquittal of the accused. But there are also passages in some of the judgments which, as I have indicated, lend powerful support to the view that, even apart from the special considerations which would arise in the case of a purported appeal from an acquittal, the intention of the Oireachtas was not to confer a right of appeal on the Attorney General in addition to the right of appeal conferred on accused persons.

Thus, as Black J. pointed out, if the normal principles of interpretation were applied, the word "appeal" should not be given a different meaning in the later part of s. 29 from the meaning it bears when used first. It is also noteworthy that he rejects the suggestion advanced on behalf of the D.P.P. in the present case that the primary object of the section is to enable important questions of law to be resolved by the final court of appeal. If one recalls again the context in which the Court of Criminal Appeal was established for the first time by the legislature, one would be more justified in inferring that the intention in enacting s. 29 was to ensure, so far as practicable, that accused persons were not convicted of serious crimes in circumstances where the relevant law was in a state of significant uncertainty.

The wording of s. 29 is, on one view, obscure and, at the very least, ambiguous, as the dissenting judgment of Martin Maguire J. in Kennedy also acknowledges. In those circumstances, it seems wrong in principal that it should be construed in a manner which is inimical to accused persons, not simply in cases where it would result in a reversal of an acquittal, but also where the Court of Criminal Appeal have quashed the conviction and directed a new trial. If the legislature intended in such circumstances that an accused person should be deprived of the retrial to which he would be entitled on the view of the law taken by the Court of Criminal Appeal, because the Supreme Court took a different view of the law, they could have said so. To construe the section otherwise would seem to be contrary to the view of the law taken by Henchy J. speaking for this court in The People (Attorney General) –v- Griffin [1974] IR 417, i.e.

"A penal provision such as this should be deemed to be intended to restrict as little as possible the pre-existing rights of the individual."

In this connection, counsel for the respondent relied on s. 34 of the Criminal Procedure Act, 1967 which permits an appeal on a question of law to this court from a directed acquittal in either the Circuit or Central Criminal Courts. As the section makes clear, such an appeal is to be without prejudice to the verdict in favour of the accused. It would, of course, have been open to the Oireachtas in 1924 similarly to provide that, where the Attorney General successfully appeals to the Supreme Court from a judgment of the Court of Criminal Appeal quashing a conviction without any order for a retrial, the judgment should be without prejudice to the effective acquittal of the accused by the Court of Criminal Appeal. However, the force of that argument is somewhat lessened by the fact that a without prejudice provision of that nature would not seem to be appropriate where a retrial is ordered by the Court of Criminal Appeal or the Supreme Court.

It is, however, of some, albeit limited, significance that, when the Oireachtas enacted s. 2 of the Criminal Justice Act, 1993 empowering the D.P.P. to apply to the Court of Criminal Appeal to review a sentence which he regarded as unduly lenient, they provided that an appeal should lie to this court from the decision of the Court of Criminal Appeal where either that court, the Attorney General or the D.P.P. certified that the case involved a point of law of exceptional public importance. It was expressly provided in this section that the D.P.P. was entitled to appeal to this court and, while that might have been a matter of legislative prudence, it demonstrates that there would have been no particular difficulty in making it equally clear in s. 29 of the 1924 Act that the Attorney General was to have a right of appeal.

While counsel for the D.P.P. also relied on the decision of the majority of this court in The People (D.P.P.) –v- O'Shea I am satisfied that it is not relevant to the issue with which we are now concerned. The finding of the majority that, under the then law, the prosecution enjoyed a right of appeal against an acquittal in the Central Criminal Court because of the provisions of Article 30.4.3 arose from the fact that the article in question confers an appellate jurisdiction on this court from all decisions of the High Court, with such exceptions and subject to such regulations as may be prescribed by law. It has no application where, as here, we are concerned with a right of appeal to this court from the Court of Criminal Appeal, which is not the High Court, although composed of members of that court in addition to members of this court, but a separate court created by statute.

In the present case, the additional difficulty arises that the Court of Criminal Appeal has in any event ordered a retrial on another ground not the subject of the appeal and it can hardly be said that the appeal purportedly brought on behalf of the D.P.P. is from the "determination" or "decision" of the Court of Criminal Appeal. He is in fact inviting this court to affirm rather than reverse that order but to direct the Circuit Court when the retrial takes place to resolve the res judicata issue in a particular manner. Were this court to adopt that approach on the hearing of an appeal under s. 29, it would, in effect, be no longer acting as a court of appeal but exercising a form of consultative jurisdiction with which it has not been endowed by the Oireachtas. I am satisfied that it enjoys no such jurisdiction.

Counsel for the D.P.P., however, has rested his case on the broader proposition that the Attorney General and the D.P.P. have a right of appeal in every case where a conviction has been quashed and a retrial ordered, provided the necessary certificate is granted. For the reasons already given, I am satisfied that no such right of appeal was conferred by s. 29 of the 1924 Act and that the preliminary issue should be resolved accordingly.