Supreme Court allows appeal against High Court refusal of contempt direction, rejecting acquittal analogy.

THE SUPREME COURT

221/05

Murray C.J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

IN THE MATTER OF A CONTEMPT OF

COURT AND IN THE MATTER OF AN

APPLICATION PURSUANT TO ORDER 44

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant/Appellant

and

INDEPENDENT NEWSPAPERS (IRELAND)

LIMITED, GERARD O’REGAN AND

ANN-MARIE WALSH

Respondents/Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 5th day of March 2009

Pursuant to majority judgments delivered by Fennelly J. and myself on the 5th day of March, 2008, this court, by a

majority of four judges to one, held that a judge of the High Court hearing a motion for attachment and committal in respect

of an alleged criminal contempt of court did not constitute “The Central Criminal Court”. The relevance of this preliminary

decision was as follows. The learned High Court judge (Dunne J.) gave a “direction” in the motion and refused it

accordingly. The motion had been brought by the above-named appellant against the above-named respondents. The

appellant appealed the decision to this court. The respondents raised a preliminary jurisdiction objection to the appeal

invoking an alleged legal principle that there could never be an appeal from an acquittal and that in this respect the trial

judge’s refusal of attachment and committal was no different from an acquittal in an ordinary criminal trial. A number of

arguments were put forward in support of this ground of objection but one of them was that by virtue of section 11(1) of

the Courts (Supplemental Provisions) Act, 1961, Dunne J., sitting in the High Court, must be regarded as being in fact the

Central Criminal Court and if that was so, section 11(1) of the Criminal Procedure Act, 1993 precluded an appeal. That

submission has been rejected in the preliminary judgment of this court already referred to.

In support of the view that no appeal lies from the order of the High Court in this case, a number of other arguments were

also made. In the course of this judgment, I will comment on them. As I will be concluding that an appeal does lie to this

court, I will also be commenting on the merits of the appeal and some procedural matters in relation thereto.

Of these remaining grounds of objection, I think it would be fair to say that the principal one relied on is, that from time

immemorial, subject to some small exceptions in summary jurisdiction, no appeal ever lay from an acquittal. To succeed in

this argument, the respondents must convince this court that an appeal against an acquittal is not constitutionally permitted

by virtue of Article 34.4.3 of the Constitution which 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.”

It is not in dispute that any one provision of the Constitution must be interpreted in light of the Constitution as a whole.

Based on that principle, Finlay P. and Henchy J. in The People (DPP) v. O’Shea [1982] I.R. 384 trenchantly argued

against the proposition that there could be an appeal from an acquittal and those arguments have been more or less repeated

by the respondents in this appeal. The respondents, however, are in the difficulty (which for quite some time they did not

appear properly to confront) that the judgments of the two above-named judges of this court were minority judgments and

that quite clearly the majority of the court consisting of O’Higgins C.J., Walsh and Hederman JJ. held that the constitutional

provisions cited above must, in the absence of some countervailing provision in the Constitution itself, be given a literal

interpretation which inevitably led to the conclusion that an appeal from an acquittal did lie.

Significantly, Henchy J., in his minority judgment at p. 245 of the report makes the following concession.

“The question whether an appeal lies direct to this court from an acquittal in the Central Criminal

Court will, of course, be authoritatively decided by this case.”

However, as pointed out in their submissions there was a crumb of comfort for the respondents. Although O’Higgins C.J.

and Walsh J. clearly considered that not only did an appeal lie but that any appropriate consequential orders such as, for

instance, a new trial could be ordered under what they considered to be an inherent jurisdiction of the court, the third

member of the majority, Hederman J., said the following at p. 445 of the report:

“I have read the judgment of the Chief Justice and am in agreement with it. However, I restrict my

concurrence to the preliminary issue raised. There remain important matters of substance and

procedure which can only be decided by this court upon the subsequent hearing of that appeal.”

That reservation proved to be significant afterwards as I will be explaining.

In arriving at the majority decision, the judgments to various degrees relied on The State (Browne) v. Feran [1967] I.R.

147 and The People (Attorney General) v. Conmey [1975] I.R. 341. I do not find it necessary to consider those cases

having regard to the view which I am adopting.

Rather surprisingly, when this appeal first came on for hearing, neither in the written submissions, which preceded it nor in

the oral submissions at the hearing was there any formal request to the court to reconsider O’Shea and if it thought fit, to

overrule it. In using the word “surprisingly” I mean only that it would be difficult otherwise to see how an argument that an

acquittal was unappealable could succeed. However, at the resumed hearing following on the delivery of the preliminary

judgment, counsel for the respondent made it clear that this court was being requested to overrule O’Shea. I should perhaps

mention at this stage that the original verdict in O’Shea had been a verdict by direction to the jury. Although a distinction

between that situation and the situation where an ordinary verdict was arrived at by a jury has been aired in subsequent case

law as relevant, that does not seem to conform with the thrust of the opinions expressed by O’Higgins C.J. and Walsh J.,

though it does appear that O’Higgins C.J. regarded actual jury findings as somewhat more sacred than did Walsh J. It is also

true, of course, that Hederman J. did not really express any particular opinion as to whether a relevant distinction could be

made in this regard.

My own view would be that such a distinction would be irrelevant. There is no statute which makes any such distinction

(except in the special context provided for in section 34 of the Criminal Procedure Act, 1967) and on the present state of the

law, a verdict of a jury by direction is just as much a verdict of a jury as a verdict of a jury otherwise than by direction. It

has also been suggested in the case law that distinctions could be drawn between a direction given consequent on a

procedural defect on the one hand and a direction given in respect of the substance of the case on the other. Again, I think

any such distinction would be dubious. Although there is no statute governing it, I also believe that a judge alone, such as

Dunne J., hearing a committal and attachment motion in respect of an alleged serious criminal contempt of court is in an

analogous position to the Special Criminal Court and must conduct the hearing as though there was a jury. Similar

consequences would flow on an appeal. It is clear that in fact this was the approach which Dunne J. adopted given that she

entertained an application for a direction.

However, I have come to a conclusion, based to a large extent on the judgment of Henchy J. in The State (DPP) v. Walsh

[1981] 1.R. 412 that even if O’Shea was wrongly decided, there would still always have been a right of appeal at least on

essential issues of law from a refusal to make orders of attachment and committal. In my view, the reasoning adopted by

Finlay P. and Henchy J. in O’Shea in maintaining that an appeal from an acquittal must by implication be excluded from the

provisions of Article 34 would not apply to a refusal of an order for attachment and committal albeit in respect of a criminal

contempt because of the special characteristics of that process which are highlighted very clearly in the judgment of Henchy

J. in Walsh to which I will now refer. In Walsh, this court upheld the jurisdiction of the High Court to try respondents

summarily and without a jury for charges of contempt of court in the form of scandalising the Special Criminal Court there

being no controversial factual issues for the hearing of which a jury would be required. This was a unanimous decision of

five judges of this court, namely, O’Higgins C.J., Henchy, Kenny, Griffin and Parke JJ. However, there were only two

written judgments, those of O’Higgins C.J. and Henchy J. Two of the other judges, Griffin and Kenny JJ., agreed with the

judgment of Henchy J. whereas Parke J. agreed with the judgment of O’Higgins C.J. What is contained in the judgment of

Henchy J. therefore can reasonably be considered as the view of the majority. Based on a careful review of the earlier case

law which I do not find it necessary to repeat, Henchy J. concluded at p. 432 of the report that the question of the

constitutionality of a summary trial of a charge of serious criminal contempt otherwise than in the face of the court was what

he called “res integra”. I fully appreciate, of course, that this issue does not directly arise in this case. There was no

objection to Dunne J. trying the case without a jury but subsequent dicta of Henchy J. to which I will be referring are highly

relevant to the understanding of the sui generis nature of contempt proceedings and the consequences which flow from it.

In my earlier judgment, I expressed the view that contempt of court cases were “sui generis” in some respects. I have since

discovered that that view is actually expressed by Henchy J. at p. 433 of the report. To avoid an unnecessarily long

judgment, I am skipping his treatment of the United States law. The older Irish authorities, Attorney General v. O’Kelly

[1928] I.R. 308 and Attorney General v. Connolly [1947] I.R. 213 had held that a summary trial was permissible. As

Henchy J. points out, this view was indirectly derived from the House of Lords decision in Cox v. Hakes (1890) 15 A.C.

306. That case, however, had dealt with statutory interpretation and not constitutional interpretation which was now

governed, as pointed out by Henchy J. by the judgments in The State (Brown) v. Feran cited above. Henchy J. went on to

conclude that in a serious criminal contempt case, the guarantee of a jury under Article 38, s. 5 did apply. But he drew

attention to something which is not often adverted to. He pointed out that the guarantee by Article 38, s. 5 related to trial

with a jury (his emphasis). He went on to assert the following at p. 438 of the report:

“It may be presumed that the true and essential purpose of such a mode of trial is to ensure that, in

cases of controverted facts, they will be entrusted to a body of impartial, competent and

representative laymen (empanelled as a jury and duly instructed as to the relevant law by the

presiding judge) the task of determining the facts in issue and of deciding whether, on their

interpretation of the contested facts, the verdict should be one of guilty or not guilty. The jury

system thus required is one which operates on the basis that the issues of fact will be exclusively

within the province of the jury and that questions of law (or, more properly, what are judicially

deemed to be questions of law) will be committed to the judge for determination. The perception of

the framers of the Constitution seems to have been that, in all unexcepted cases of major offences,

justice requires that the verdict should rest on the foundation of a factual determination made by a

group of laymen indiscriminately but fairly assembled to form a jury, rather than on factual

findings made by a single judge who might be thought biased, legalistic, remote or, at best, to be

carrying the risk of error that is inherent in a professional dispenser of justice sitting without a

jury.

When the major offence charged is contempt of court, and if there are live and real issues of fact

(such as whether the accused committed the act alleged against him, or whether it was done with

his approval, etc.), the accused has a prima facie right under Article 38, s. 5, to trial with a jury,

thus entitling him to have those issues of fact committed to a jury for their determination. As at

present advised, I do not find any other provision of the Constitution which would rebut that

presumption. It would not seem to be compatible with the constitutional requirement of fundamental

fairness of procedures, or with the equality before the law guaranteed by Article 40, s. 1, if

contempt of court, which carries with it the risk of a fixed but unlimited term of imprisonment or an

unlimited fine, were the only major offence which is exempt from the requirement of a

determination by a jury of the controverted facts.

But where the facts are admitted, or have been determined by a jury, or have been duly and

properly decided by the judge not to be in issue, I consider that the question whether those facts

amount to the contempt of court charged must be deemed to be a question of law to be decided by

the judge, provided the judge is vested with the original jurisdiction necessary to try such a

contempt summarily. This appears to me to be a necessary corollary of certain constitutional

postulates, especially the guarantee in Article 35, s. 2, that all judges shall be independent in the

exercise of their judicial functions and subject only to the Constitution and the law, and the implied

but pervasive requirement that fundamental fairness of procedures shall be observed. The latter

requirement could not be observed if the question of whether a particular piece of conduct

amounted to contempt of court had to be resolved by a jury.

A jury has an unqualified and unreviewable power (as distinct from a right) to render a verdict of

not guilty in any case which they have jurisdiction to try: see Devlin on Trial by Jury (1965 ed. –

p. 87). Thus, if the question whether a particular act of alleged contempt, which was plainly a

criminal contempt and inimical to basic fairness of procedures, had to be decided by a jury, the

jury, by a perverse verdict of not guilty, could set at nought the constitutional guarantee that basic

fairness of procedures will be observed and could, at the same time, undermine the independence of

the judiciary. The committal to the arbitrament of laymen of the question whether the conduct

complained of amounted to a criminal contempt is singularly unsuitable for a jury because of the

varying standards and values that juries would be apt to apply; because such a question (being a

question of the minimum standards of behaviour necessary for the due administration of justice in

the Courts) calls for an answer which cannot be given in the laconic and uninformative verdict of

untrained and inexperienced laymen; because by their verdict the jury may put a wrongful acquittal

before correction; because such an incorrigible acquittal may leave a contemned judge in a state of

odium and rejection in the minds of the public, to the detriment of his independence; and, finally,

because such verdicts may have to be allowed to stand although they condone breaches of the

requirement of fundamental fairness of procedures.

The ultimate responsibility for the setting, and the application, of the standards necessary for the

due administration of justice must rest with the judges. They cannot abdicate that responsibility,

which is what they would be doing if they allowed juries of laymen to say whether the conduct

proved or admitted amounted to criminal contempt. It may be said that it is short of the ideal that a

judge may sit in judgment on a matter in which he, or a colleague, may be personally involved.

Nevertheless, in such matters judges have to be trusted, for it is they and they alone who are

constitutionally qualified to maintain necessary constitutional standards. In upholding the current

position, to the extent of saying that it is for a judge and not for a jury to say if the established facts

constitute a major criminal contempt, I would suggest that, in both the factual and legal aspects of

the hearing of the charge, the elementary requirements of justice in the circumstances would have

to be observed…”

What emerges from that lengthy extract from the judgment of Henchy J. is that a trial with a jury of a motion for attachment

and committal in respect of a non-minor criminal contempt has to be conducted differently from an ordinary trial for

indictable crime. Certain issues which would in the ordinary way be regarded as issues of fact and, therefore to be

determined by a jury must, in the overall interests of the due administration of justice, be deemed to be issues of law and

left to the determination of the judge. The learned judge conceded that some of what he was saying had to be regarded as

obiter dicta. Nevertheless, the judgment received the unreserved approval of Griffin and Kenny JJ.

The judgment of O’Higgins C.J. with whom Parke J. agreed is along somewhat different lines but it clearly establishes that a

criminal offence even if non-minor of a contempt of court is dealt with in a special way. For instance at page 429 of the

report O’Higgins C.J. makes the following observation:

“I wish to add one further matter. These proceedings are attachment proceedings for contempt of

court. I think it is correct to describe such proceedings as being in reality a charge of a criminal

offence. Being such, however, does not mean that the offence is one of those offences which are

dealt with under Article 38 of the Constitution. That Article, and in particular s. 5 thereof, refers to

offences against the body of substantive criminal law which exists in this and every other country

and which requires for its enforcement the action of the Executive. For the reasons I have given,

the offence of criminal contempt is peculiarly within the control and summary jurisdiction of the

Courts.”

I draw the conclusion from these judgments and from the special procedures used in relation to criminal contempt cases that

there would be no legitimate basis for arguing that an appeal did not lie from a refusal to accede to a motion for contempt

whether that refusal arose from a direction or otherwise and whether or not the High Court judge was sitting with a jury. As

in every case, the findings of a jury on issues of fact put to them could not, as such, be interfered with on appeal. If it is so

important as suggested by Henchy J. (and in my opinion correctly) that the ultimate question of whether a contempt existed

or not should be left to the judge in the overall interests of having a settled jurisprudence as to how justice is to be

administered, then there is all the more reason for allowing the matter go to a final appellate court. In my view, therefore,

irrespective of whether O’Shea’s case was correctly or incorrectly decided there would still be an appeal from the order of

Dunne J.

As far as I can recall, counsel and possibly even the court at the two hearings so far in this appeal assumed that the

alternative to Dunne J. hearing this contempt motion, as she did without a jury, was an ordinary trial in the Central Criminal

Court before a jury and upon indictment. Without necessarily suggesting that there would be anything illegal or inappropriate

about such a trial, it would seem to me that under the procedure contemplated by Henchy J., the judge of the High Court,

hearing a motion for attachment and committal, could sit with a jury in the case of a non-minor criminal contempt and

where there was controversy about actual facts which it would be appropriate to have determined by a jury.

According to Halsbury there has not been a trial upon indictment for contempt of court in England since 1902. I have been

unable to find in the digests any example of such a case in Ireland but there may have been one. The only actual example

given in Halsbury of a trial of contempt on indictment before 1902 was an 1878 case R. v. Dodwell involving an “assault

on judge in precincts of court”. Interestingly, Halsbury in the same paragraph, paragraph 87 of Vol. 9 of the 4th edition

quotes an Irish judge, Fletcher J. in a case called Taaffe v. Downes decided in the Irish Court of Common Pleas in 1813 as

stating that “the mode of proceeding by attachment stands upon the same foundation and basis as trials by jury do –

immemorial usage and practice”.

Having expressed the view that an appeal does lie, I think it appropriate to make another slight diversion before considering

the merits. If I am wrong in the approach which I have adopted and if, nevertheless it were the view of the court that

O’Shea ought not to be overruled, it would then become necessary to consider what order, if any, should be made by this

court in the event of the appeal being successful. If the hearing conducted by Dunne J. is to be regarded, as I think it should

be, in exactly the same way as a hearing by her with a jury would have been treated, then, as is pointed out on behalf of the

respondents in their submissions, there is potentially at least a serious qualification on the effect of O’Shea by reason of the

later decision of this court in The People (DPP) v. Quilligan (No. 2) [1989] I.R. 46. That was a differently constituted

Supreme Court comprising of Walsh, Henchy, Griffin, Hederman and McCarthy JJ. Notwithstanding that in accordance

with O’Shea’s case an appeal to this court had been entertained in respect of an acquittal and that the appeal had been

allowed, it was decided by a majority of three judges to two (Henchy, Griffin and Hederman JJ.) that a new trial should not

be ordered. Walsh and McCarthy JJ. took a different view. However, the issue as an issue of law technically remains

undetermined because although Hederman J. joined in the majority order in that particular case he reserved his position on

the general principle, as indeed he had done in O’Shea’s case. I do not find it necessary to express any view on this issue

given that I am of opinion at any rate, that in the circumstances of this case, a new trial or hearing ought not to be ordered

for the practical reasons indicated later in this judgment.

It is curious and indeed somewhat artificial that the refusal of the motion for attachment and committal was decided in the

context of an application for a direction where the motion was up to that point solely grounded on affidavit evidence. In

dealing with the application for a direction and despite the careful judgment of the learned High Court judge, I am of the

view that she fell into error in two respects.

The first relates to the structure of the judgment. Half way through it, the learned trial judge expressly and indeed correctly

acknowledges that what she was then dealing with was an application by Mr. Shane Murphy, S.C., on behalf of the

respondents “for a direction at the close of the prosecution’s case on the basis that as the onus of proof rests with the

applicant to prove all matters in issue by reference to the criminal burden of proof beyond reasonable doubt that the

prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it.” She

goes on to note that Mr. Murphy had referred to the well-known case of R. v. Galbraith [1981] 1 WLR 1039. Counsel had

apparently submitted that it was essential that there must be proof before the court of a real risk of interference with a

criminal trial. The judge then referred to part of his argument which was that allegedly there was no evidence as to when

there was to be a trial and that no evidence was adduced by the prosecution to demonstrate that the publication of the article

on the 2nd December, 2004, created any real risk of interference with the due administration of justice in the prospective

criminal trial of Patrick O’Dwyer.

From then on, there is nothing to indicate that the learned judge was in fact deciding an application for a direction. The

whole tone of the remainder of the judgment was appropriate only to a final decision. I have little doubt that this may have

been entirely an unintended consequence and that the learned judge was aware that she was dealing with an application for a

direction but unfortunately nowhere does she tease out the question of whether at least there was a prima facie case. If she

did consider this issue separately and was of the view that there was not, she should have said so but even if she had said

so, I would respectfully take a different view. Taken in conjunction with my observations on the second error to which I

will be referring, I would be of opinion there was clearly an arguable case for a conviction having regard to the nature of the

publication. If there was a prima facie or in other words arguable case, as I have suggested, the learned judge should have

refused the direction. If there was no evidence called after that, she would, of course, have to then decide the case. On the

face of it at least those procedures were not carried out and the result (probably unintended) was that there was delivered

what to all intents and purposes appeared like a final judgment.

I now return to what I regard as a second error. In my view, the learned High Court judge ought not to have attached

significance as she appears to have done to the so-called fade factor.

As pointed out in the second supplemental written submissions filed on behalf of the appellant, I expressed the view in my

judgment in Rattigan v. The DPP delivered the 7th May, 2008 that while a fade factor might be relevant in an application

to injunct or prohibit a trial because of adverse publicity it was not normally a relevant factor in a contempt motion. I

expressly approved the comments made in the joint judgment of Mason C.J. and Toohey J. in the Australian case of R. v.

Glennon (1992) 173 C.L.R. 592. Those learned judges said the following:

“The question whether a contempt has been committed has ‘to be determined at the time of

publication and not by reference to subsequent events’... That time may well be in advance of the

actual trial and even before the date for trial is known. Thus a conviction for contempt depends

upon findings of fact and inferences drawn at that time on the basis of evidence then available.”

I am of opinion, therefore, that the appeal should be allowed. Given the sui generis and autonomous nature of contempt

proceedings as already illustrated, I do not believe that there is any inherent problem in this court ordering a new trial. A long

time has elapsed however in the appeal process in this case having regard to the unusual and complex problems which arose.

By any standard the case is now somewhat stale. It was important from the point of the view of the Director of Public

Prosecutions to establish the correct legal position both in relation to procedures and the substance. That has been achieved

and in all the circumstances, I would be of the view that the court should exercise its discretion against ordering a new trial.

Given that the trial stopped at the stage of an application for a direction, there could obviously be no question of this court

making any final determination as to whether there was contempt or not and still less could this court embark on the

imposition of penalties. I would add that even if the decision of Dunne J. had been given at the end of a full hearing and not

by way of an application for a direction, it would still be wholly inappropriate for this court to deal with matters of sentence.

In that event, the case would have to be returned to the High Court for sentencing. Otherwise, this court would be acting as

a court of first instance and furthermore there would be no appeal.

I would allow the appeal but would confine the order to

a) a declaration that the appeal should be allowed on the basis that the direction ought to have been refused;

b) an order setting aside the order of the High Court;

c) an order refusing all further relief sought in the notice of appeal.

DPP v. Independent Newspapers & Ors.