BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Irish Law Reform Commission Papers and Reports


You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Prosecution Appeals in Cases Brought on Indictment, Consultation Paper on (LRC CP19 - 2002) [2002] IELRC CP19 (May 2002)
URL: http://www.bailii.org/ie/other/IELRC/2002/2.html
Cite as: [2002] IELRC 2, [2002] IELRC CP19

[New search] [Contents list] [Printable version] [Help]


THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC CP 19-2002)


 

CONSULTATION PAPER

ON

PROSECUTION APPEALS

IN CASES BROUGHT ON INDICTMENT


 

(LRC CP 19 – 2002)

IRELAND

The Law Reform Commission

I.P.C. House, 35-39 Shelbourne Road, Ballsbridge, Dublin 4

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

© Copyright The Law Reform Commission 2002

First Published May 2002

ISSN 1393 – 3140

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=ii

 

THE LAW REFORM COMMISSION

Background

The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20th October, 1975, pursuant to section 3 of the Law Reform Commission Act, 1975.

The Commission's Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act.

To date the Commission has published sixty three Reports containing proposals for reform of the law; eleven Working Papers; eighteen Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the law of Bail; and twenty two Reports in accordance with Section 6 of the 1975 Act. A full list of its publications is contained in Appendix 4 to this Consultation Paper.

Membership

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are:

President The Hon Mr Justice Declan Budd, High Court

Full-time Commissioner Patricia T Rickard-Clarke, Solicitor

Part-time Commissioners Dr Hilary A Delany, Barrister-at-Law

Senior Lecturer in Law, Trinity College Dublin

Professor Finbarr McAuley

Jean Monnet Professor of European Criminal Justice, University College Dublin

Marian Shanley, Solicitor

Secretary John Quirke

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=iii

 

Research Staff

Director of Research Professor David Gwynn Morgan LLM (Lond), PhD (NUI)

Legal Researchers Dara Dowling BCL, LLM (University of Paris II)

Jane McCullough BCL, EMA (Padua)

Mairéad O'Dwyer MB, BCh, BAO, BCL

Brónagh Maher BCL

Simon Barr LLB (Hons), BSc

Claire Morrissey BCL (Int'l), LLM (K U Leuven)

Administration Staff

Project Manager Pearse Rayel

Legal Information Manager Marina Greer BA, H Dip LIS

Cataloguer Eithne Boland BA (Hons), H Dip Ed, H Dip LIS

Higher Clerical Officer Denis McKenna

Private Secretary to the President Liam Dargan

Clerical Officer Teresa Hickey

Clerical Officer Gerry Shiel

Clerical Officer Sharon Kineen

Principal Legal Researcher on this Consultation Paper

Simon Barr LLB (Hons), BSc

Contact Details

Further information can be obtained from:

The Secretary

The Law Reform Commission

IPC House

35-39 Shelbourne Road

Ballsbridge

Dublin 4

Telephone (01) 637 7600

Fax No (01) 637 7601

Email info@lawreform.ie

Website www.lawreform.ie

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=iv

 

The Commission would like to thank Mr James Hamilton, Director of Public Prosecutions, Mr Barry Donoghue, Deputy Director of Public Prosecutions, and Mr Peter Charleton, Senior Counsel, who offered advice and assistance in relation to this Consultation Paper. Full responsibility for this Paper, however, lies with the Commission.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=v

 

TABLE OF CONTENTS

INTRODUCTION

1

 

CHAPTER ONE: PROSECUTION APPEALS IN IRELAND AND ABROAD

5

 

A. AT COMMON LAW

5

 

(a) The Origins of the Rule

6

 

(b) Legislative Reform

10

 

(c) The Common Law Rule in the Twentieth Century

12

 

B. STATUTORY AVENUES OF PROSECUTION APPEAL

15

 

(a) Section 34 of the Criminal Procedure Act, 1967

16

 

(b) Section 16 of the Courts of Justice Act, 1947

18

 

C. THE ABOLISHED CONSTITUTIONAL RIGHT OF APPEAL

19

 

D. PROSECUTION AVENUES OF APPEAL IN FOREIGN JURISDICTIONS

23

 

(a) The United Kingdom

23

 

(i) England and Wales

23

 

(ii) Northern Ireland

25

 

(iii) Scotland

26

 

(b) Canada

26

 

(c) United States of America

27

 

(d) New Zealand

30

 

(e) Australia

32

 

(f) South Africa

35

 

(g) Germany

36

 

(h) France

37

 

(i) Italy

38

 

(j) The Netherlands

38

 

(k) Summary of Prosecution Avenues of Appeal in Foreign Jurisdictions

39

 

CHAPTER TWO: AN OUTLINE OF ARGUMENTS FOR AND AGAINST PROSECUTION APPEALS

41

 

CHAPTER THREE: KEY VARIABLES AFFECTING THE AMBIT OF PROSECUTION APPEALS

47

 

A. 'WITHOUT PREJUDICE' AND 'WITH PREJUDICE' REFORM OPTIONS

48

 

(a) 'Without Prejudice' Appeals

48

 

(b) 'With Prejudice' Appeals

50

 

B. APPEALS ON QUESTIONS OF LAW OR FACT OR MIXED LAW AND FACT

54

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=vii

 

(a) Ireland

54

 

(b) Canada

57

 

(c) Australia

59

 

(d) New Zealand

61

 

(e) The United Kingdom

61

 

(f) Summary

64

 

C. CATEGORIES OF RULINGS SUBJECT TO APPEAL

64

 

(a) Terminating Rulings

66

 

(b) Non-Terminating Rulings

69

 

(i) Pre-Trial Appeals

69

 

(ii) Adjourning the Trial Part-Heard

70

 

(iii) Abandoning the Trial Part-Heard

71

 

(iv) Hearing the Appeal Following the Jury's Verdict

73

 

(c) Jury Verdicts of Acquittal

75

 

CHAPTER FOUR: PROCEDURAL REQUIREMENTS

82

 

A. GENERAL OR FETTERED RIGHT OF APPEAL

82

 

B. TIME LIMITS FOR THE NOTIFICATION OF APPEALS

84

 

C. TIME LIMITS FOR THE DISPOSITION OF APPEALS AND FOR RETRIALS

85

 

D. POWER OF DETENTION

85

 

E. REPRESENTATION AT APPEAL

85

 

F. FURTHER RIGHTS OF APPEAL

87

 

(a) Appeals Against Unsuccessful Prosecution Appeals in the Court of Criminal Appeal

87

 

(b) Appeals Against Successful Defence Appeals in the Court of Criminal Appeal

88

 

CHAPTER FIVE: OPTIONS FOR REFORM

90

 

A. NARROW 'WITHOUT PREJUDICE' MODEL

90

 

B. BROAD 'WITHOUT PREJUDICE' MODEL

91

 

C. NARROW 'WITH PREJUDICE' MODEL

91

 

D. BROAD 'WITH PREJUDICE' MODEL

92

 

E. COMPREHENSIVE 'WITH PREJUDICE' MODEL

92

 

F. CONSULTATION PROCESS

92

 

APPENDICES

93

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=viii

INTRODUCTION

1.

Until relatively modern times, appeals in criminal cases were virtually non-existent. Today, whilst the defence have broad rights of appeal, the law provides for only a limited prosecution right of appeal. In the case of trials on indictment1 before the Circuit Court and Central Criminal Court the prosecution may only appeal on questions of law arising from judge directed acquittals.2 There is, however, no jurisdiction for the Supreme Court to overturn the acquittal. Moreover, there is no prosecution avenue of appeal whatsoever from the Special Criminal Court.

2.

The limited nature of the prosecution appeal structure has been the subject of criticism in recent years. In 1993, the Committee on Court Practice and Procedure recommended the introduction of a broader prosecution right of appeal.3 The Committee's recommendations were not, however, implemented by the legislature.

3.

More recently, the Director of Public Prosecutions has highlighted “the problem caused by the absence in Irish law of a proper system to allow appeals from decisions of judges in criminal trials to be brought by the prosecution”, and has advocated the introduction of a broader prosecution right of appeal.4 The Director's call for reform was prompted, in part, by the proposed incorporation of the European Convention on Human Rights into Irish domestic law, and the variety of legal issues that are likely to be raised in the course of criminal trials as a consequence of incorporation. The Director was concerned that these questions of law should not be determined in the course of a criminal trial without the opportunity of review in the more considered atmosphere of an appeal court. The Director did not, however, restrict his comments to the potential impact of European Convention law. He considered that the current lack of prosecution appeal avenues was part of a wider problem within the criminal law that prevented the prosecution having questions of law tested at appellate level.


1

For appeals following summary trials, see para.1.27 below.

 

2

The Criminal Procedure Act, 1967, s.34. However, see also s.16 of the Courts of Justice Act, 1947. Both provisions are discussed at paras.1.29-1.37 below.

 

3

The Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993). The Dublin Chamber of Commerce had also called for the introduction of a broader prosecution appeal scheme based on the Canadian model: Dublin Chamber of Commerce, Crime and the Law: Towards a More Effective Criminal Justice System (1990) at 5.

 

4

Director of Public Prosecutions, “Opening Address to the Second National Prosecutors Conference” (Dublin, 19 May 2001).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=1

 

4.

The striking dearth of substantive judge-made criminal law has also been the subject of strong, recent criticism. In consequence of this lacuna, it has been argued that:

“[The] natural development [of the Irish criminal law has been stunted] leaving those charged with its administration to fend as best they can on a diet of first-instance rulings and directions, as supplemented by English authority.”5

5.

Similarly, the Law Reform Commission's recent Consultation Paper, Homicide: The Mental Element in Murder has drawn attention to this criticism in relation to the law of homicide, and the scarcity of jurisprudence as to the meaning of "intention" for murder.6

6.

Ireland is not the only country in which the significance of prosecution appeals has been recognised. This issue has also been explored recently by law reform bodies in other jurisdictions including the New South Wales Law Reform Commission,7 the Law Commission of England and Wales,8 the New Zealand Law Commission9 and the South African Law Commission.10

7.

This Consultation Paper examines the ambit of the current prosecution avenues of appeal in relation to cases brought on indictment, and explores whether there should be greater scope for such appeals.

8.

In Chapter One the Commission reviews the history of prosecution appeals, examines the powers of appeal currently available to the prosecution in this jurisdiction, and surveys the availability of such powers in other common law and civil law jurisdictions.


5

McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000) at vii-xii. Whilst many reasons independent of the absence of a broad prosecution right of appeal have been advanced to explain the scarcity of appellate criminal law jurisprudence, one might expect that the quantity and quality of appellate judgments would be enhanced by wider avenues of appeal.

 

6

There are only two reported judgments which discuss the meaning of intention for murder pursuant to the Criminal Justice Act, 1964: see, Law Reform Commission, Homicide: The Mental Element in Murder (CP 17-2001) at paras.4 and 2.02.

 

7

New South Wales Law Reform Commission, Directed Verdicts of Acquittal: Discussion Paper (DP 37, 1995); Report (R 77, 1996).

 

8

The Law Commission of England and Wales has published a consultation paper, Prosecution Appeals Against Judges' Rulings (CP 158, 2000), and a final report, Double Jeopardy and Prosecution Appeals (LC 267, 2001). The Report also included the Law Commission's final recommendations on the related topic of double jeopardy.

 

9

New Zealand Law Commission, Criminal Prosecution (Report 66, 2000). However, the reference to prosecution appeals in this Report is confined to a minor procedural aspect.

 

10

South African Law Commission, Third Interim Report on Simplification of Criminal Procedure (The Right of the Director of Public Prosecutions to Appeal on Questions of Fact) (Project 73, 3rd Interim Report, 2000).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=2

 

9.

In Chapter Two the Commission questions whether a broader avenue of appeal is desirable and explores the general advantages and disadvantages posed by such an expansion.

10.

In Chapter Three the Commission examines in greater depth the key variables affecting the ambit of prosecution appeals. The Commission suggests that there are essentially three such key variables, namely:



(a)

 

Whether the appeals are 'with prejudice' or 'without prejudice' to any acquittal or ruling in favour of the accused. A without prejudice appeal is one in which the appellate court has no power to quash the acquittal or other ruling favourable to the accused, and is brought for the purposes of clarifying the law for future cases. A with prejudice appeal is one in which the appellate court has the power to overturn a decision favourable to the accused, and is brought primarily for the purpose of achieving the correct result in the particular case appealed;

 



(b)

 

Whether the appeals are restricted to questions of pure law, or may encompass questions of mixed law and fact, or pure fact;

 



(c)

 

Whether the appeals are restricted to trial rulings directing the jury to acquit, or may encompass other decisions made pre-trial and during the trial.

11.

In Chapter Four the Commission examines the procedural requirements that may be entailed by a new prosecution avenue of appeal.

12.

Finally, in Chapter Five the Commission reviews five general prosecution appeal models, namely a narrow and a broad without prejudice model, a narrow and a broad with prejudice model, and a comprehensive with prejudice model.

13.

This Consultation Paper is intended to form the basis for discussion. The Commission will make its final recommendations on this topic following further consideration of the issues and consultation with interested parties. Submissions in relation to this Consultation Paper are welcome. In order that the Commission's Final Report may be available as soon as possible, those who wish to do so are requested to make their submissions in writing to the Commission by 31 July, 2002.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=3

 

CHAPTER ONE: PROSECUTION APPEALS IN IRELAND AND ABROAD

1.01

In this chapter the common law history of prosecution appeals is reviewed. The avenues of appeal available to the prosecution in this and other jurisdictions are also examined. It is demonstrated that, in contrast to the general trends abroad, Ireland has a relatively restricted prosecution appeal scheme which is limited to without prejudice appeals in relation to questions of law arising from directed acquittals.

A. At Common Law

“... whenever, and by whatever means, there is an acquittal in a criminal prosecution, the scene is closed and the curtain drops...”11

1.02

In It is often said that appeals against acquittal are not recognised at common law. This would appear to have been settled principle by 1905 when Palles CB authoritatively stated, in R v Chairman and Justices of the County of Tyrone,12 that it was an “elementary” and “a broad principle of common law” that “an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court.” This rule (“the common law rule”) does not purport to prohibit legislation empowering prosecution appeals against acquittal. However, as Palles CB added, it is “settled principle” that “before you can appeal against an acquittal, the words must be clear, express and free from ambiguity.”

1.03

Numerous statements of a similar nature can be found in the law reports of common law jurisdictions throughout the twentieth century.13 Indeed, the common law rule has had an enduring impact on the development of modern criminal appeal procedures. It is therefore necessary to examine its origins in greater depth.


11

This statement was made by the Attorney General in the Duchess of Kingston's Case (1776) 20 How St Tr 355, 528, cited in Darvern v Messel (1984) 155 CLR 21, para.7, per Mason and Brennan JJ (High Court of Australia).

 

12

(1905) 40 Ir LT 181, 182.

 

13

For example, Benson v Northern Ireland Road Transport Board [1942] AC 520, 526; Thompson v Master-Touch TV Service Pty Ltd (No.3) (1978) 38 FLR 397, 403 (Federal Court of Australia).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=5

 

(a) The Origins of the Rule

1.04

It has been observed that the origin of the common law rule against prosecution appeals is “somewhat obscure”14 given that appeals in all criminal cases were largely unknown to the common law and consequentially a rarity prior to legislative initiatives in the early twentieth century. Indeed, Stephen observed in 1883 that “it is a characteristic feature in English criminal procedure that it admits of no appeal properly so called, either upon matters of fact or upon matters of law”.15 In a legal landscape bereft of appellate procedures, how was it that the common law rule had developed to such an extent that it could be considered “settled principle” in 1905?

1.05

In fact, as Stephen identified, there were a number of exceptions to the common law rule.16

1.06

The first of these was the writ of error.17 A writ of error lay from all inferior criminal jurisdictions to the King's Bench where an error of law appeared on the face of the record.18 Typically, writs of error were brought in cases of conviction; if successful, the conviction would be set aside. However, it has been suggested that writs were also issued in cases of acquittal.19 In any event, this procedure was very limited given that the criminal courts maintained a minimal record of proceedings, and hence was “rarely used”:20

“As the record takes no notice either of the evidence or of the direction given by the judge to the jury the grossest errors of fact or of law may occur without being in any way brought upon the record, and as the writ of


14

Darvern v Messel (1984) 155 CLR 21, para.4, per Mason and Brennan JJ (High Court of Australia).

 

15

Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 308.

 

16

In addition to the judicial procedures discussed in the text above, a convicted person could also petition the sovereign for a pardon. Moreover, a judge could grant a reprieve to a convicted person by suspending their execution where “the judge might not have been satisfied with the verdict, the evidence might be suspicious or the indictment insufficient, or there might have been such favourable circumstances in the criminal's character as to give room to apply to the Crown for either an absolute or a conditional pardon”: Manchester, Modern Legal History (Butterworths, 1980) at 181.

 

17

See, for further discussion, McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000) at 32-34.

 

18

Initially writs of error were allowed entirely at the discretion of the Attorney General. In relation to misdemeanours, this discretion was subsequently placed in the hands of the courts. Whilst cases of felony and treason remained a matter of the Attorney General's favour, in reality it was always decided judicially whether an error existed or not: Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 310.

 

19

The People (Attorney-General) v Kennedy [1946] IR 517, 527.

 

20

Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 310.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=6

 

error affirms that there is error on the record, no error which is not so recorded can be taken advantage of by those means.”21

1.07

A second procedure available to the courts was to grant a motion for a new trial. This procedure was essentially limited to misdemeanour cases.22 It did, however, appear to operate in cases of both conviction and acquittal:23

“... on trials in the King's Bench, new trials would be ordered in cases of misdemeanours for certain defects in the mode of trial even after acquittal and also for insufficiency of evidence or misdirection. In cases of felony, a new trial was never ordered... At all criminal trials at assizes under the various commissions, a new trial after an acquittal on a criminal charge was unheard of...”24

1.08

Thirdly, there was the Court for Crown Cases Reserved, which provided a review procedure for cases on indictment. This Court arose from a practice originating in “very early times”25 whereby a judge presiding in a difficult criminal case could postpone judgment or sentence and refer the matter to his brethren. As Stephen explains:

“The question reserved was argued before the judges by counsel, not in a court of justice but at Sergeant's Inn of which all the judges were members. If they thought that the prisoner had been improperly convicted he received a free pardon. If not, the sentence was executed or judgment was passed. No judgment was delivered and no reasons were given in such cases, the whole proceeding being of an informal kind... In 1848 this informal tribunal was erected into a court called the Court for Crown Cases Reserved... This court can determine questions of law arising at the trial, but cannot take notice of questions of fact, and it is absolutely in the discretion of the presiding judge at a trial whether he will or will not reserve a point for its decision.”


21

Ibid. at 309. Blackstone commented that writs were granted out of tenderness to life and liberty but were “not much to the credit or advancement of the national justice”: cited in Manchester, Modern Legal History (Butterworths, 1980) at 180.

 

22

Stephen notes that in one instance a new trial was ordered in the case of a felony, but that the Privy Council subsequently disapproved of that case: Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 311.

 

23

However, the circumstances in which a new trial could be ordered in cases of acquittal appear to have been limited: “Such a new trial would not be granted at the instance of the prosecutor unless the verdict appeared to have been obtained by some fraudulent or irregular proceeding on the part of the defendant”: Manchester, Modern Legal History (Butterworths, 1980) at 181.

 

24

The People (Attorney-General) v Kennedy [1946] IR 517, 528. Stephen notes that, according to Chitty, a new trial was first ordered in 1655: Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 311.

 

25

Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 311.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=7

 

1.09

Interestingly, the 1848 legislation, which formalised the Court, provided that questions of law could only be reserved in cases of conviction, not acquittal.26

1.10

Many judgments delivered by the Court for Crown Cases Reserved made an enduring impact on the common law27 and a significant number of them are still cited today.28 Notable examples include R v Prince,29R v Tolson,30 and R v Ashwell.31

1.11

Fourthly, through its prerogative power, the Privy Council retained jurisdiction to entertain appeals from decisions from England's colonial courts.32


26

Crown Cases Act, 1848 11 & 12 Vict., c.78, s.1. See, for discussion, Darvern v Messel (1984) 155 CLR 21, para.5, per Mason and Brennan JJ (High Court of Australia).

 

27

Stephen made the following observation as to the volume of cases being decided around 1883: “...the Court for Crown Cases Reserved sits only three or four times a year for a day, or more often half a day, at a time, and probably does not determine twenty cases a year”: Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 312.

 

28

The following examples are cited in McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000): in relation to consent and mistake: R v McGrath (1869) LR 1 CCR 205; R v Middleton (1873) LR 2 CCR 38; R v Flattery (1877) 2 QBD 410; R v Clarence (1888) 22 QBD 23; and, R v Dee (1884) 14 LR (Ir) 468 (a decision of the Irish Court for Crown Cases Reserved); in relation to mens rea and malice: R v Child (1871) LR 1 CCR 307; R v Ward (1872) LR 1 CCR 356; R v Pembliton (1874) LR 1 CCR 122; and, R v Martin (1881) 8 QBD 54; in relation to omissions and duties of care: R v Downes (1875) 1 QBD 25; and, R v Instan [1893] 1 QB 450; in relation to conspiracy and attempt: R v Most (1881) 7 QBD 244; and, R v Martin (1879) 5 QBD 34; and in relation to secondary liability: R v Salmon (1880) 6 QBD 15; and, R v Tyrrell [1894] 1 QB 710.

 

29

(1875) LR 2 CCR 154. Both R v Prince and R v Tolson dealt with the issues of mens rea, mistake and strict liability. In Prince the Court upheld the accused's conviction for abducting an underage girl notwithstanding his belief, on reasonable grounds, that the girl was 18.

 

30

(1889) 23 QBD 168. In R v Tolson the Court overturned the accused's conviction for bigamy where she had remarried believing her husband to be dead, distinguishing Prince on the grounds that bigamy was not an offence of strict liability. Such was the influence of this case, that the law as stated in Tolson remained undisturbed until the 1975 decision of the House of Lords in Director of Public Prosecutions v Morgan [1976] AC 182. Prince and Tolson are cited extensively in McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000) at 149, 277-8, 313, 316, 325, 328, 336, 342, 357, 359, 449, 450, 554-7, 562, 564, 799, 846.

 

31

(1885) 16 QBD 190. In R v Ashwell the Court held that the innocent receiver of a mistaken overpayment was guilty of larceny if he subsequently decided to keep the surplus on discovering the mistake. Ashwell was rejected by the Irish Court for Crown Cases Reserved in R v Hehir [1895] 2 IR 709. Both cases are cited extensively in McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000) at 23, 118-9, 188, 216-7, 219, 329.

 

32

Attorney General for Ceylon v Kumarasinghege Don John Perera [1953] AC 200. In this case the prosecution brought the appeal against a decision of the Court of Criminal Appeal of Ceylon quashing a conviction. In response to a submission on behalf of the accused that the Privy Council had no jurisdiction to hear the appeal on the grounds of the common law rule against prosecution appeals against acquittal, the Privy Council noted that the decision of the Court of Criminal Appeal did not amount to acquittal. However, the Committee expressly held that this was not the basis upon which it held it had jurisdiction. Rather, the Committee founded its jurisdiction on the ground that “Her Majesty in Council has power to entertain an appeal from any Dominion or Dependency of the Crown in any matter, whether civil or criminal, by whichever party to the proceedings the appeal is brought, unless that right has been expressly renounced [by legislation]”.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=8

 

However, this jurisdiction was exercised sparingly in relation to criminal cases, and does not appear to have been exercised at all in relation to prosecution appeals from acquittals at first instance. It has been observed that:

“The absence of any record of an appeal to the Privy Council from an acquittal suggests that the Judicial Committee in granting or refusing special leave to appeal would ordinarily be guided by the common law rule that an acquittal after a hearing on the merits will not be called in question.”33

1.12

In addition to these common law procedures, from the end of the seventeenth century the English legislature enacted a number of statutory appeal provisions in relation to summary proceedings.34 The question then arose as to whether these appeal provisions, expressed in general terms, were capable of supporting prosecution appeals against acquittals. Largely, it was in response to these prosecution applications that the courts developed the common law rule against prosecution appeals as a principle of statutory interpretation. Most provisions were strictly interpreted so as to prohibit prosecution appeals.35 However, such a conclusion was not universal, and on occasion the courts held that the legislation was sufficiently clear so as to permit an appeal by the prosecutor.36

1.13

Nevertheless, the question arose as to why the courts were more open to allowing appeals from conviction than acquittal. The answer seems to be linked to the principle of double jeopardy.37 This principle, which can be traced back to


33

Darvern v Messel (1984) 155 CLR 21, para.15, per Mason and Brennan JJ (High Court of Australia). See also Thompson v Master-Touch TV Service Pty Ltd (No.3) (1978) 38 FLR 397, 404 (Federal Court of Australia).

 

34

For a discussion of these legislative innovations and the judicial response, see Darvern v Messel (1984) 155 CLR 21, paras.6-11, per Mason and Brennan JJ (High Court of Australia).

 

35

Examples cited in Darvern v Messel (1984) 155 CLR 21, para.6, per Mason and Brennan JJ (High Court of Australia) include: R v Justices of Middlesex (1812) 16 East. 310 (104 ER 1107); Payne v The Justices of Uxbridge Division of the County of Middlesex and the Uxbridge Sanitary Authority (1881) 45 JP 327; R v The Keepers of the Peace and Justices of the County of London (1890) 25 QBD 357; Foss v Best (1906) 2 KB 105; R v Wright; Ex parte Bradford Corporation (1907) 6 LGR 89.

 

36

An example cited in Darvern v Messel (1984) 155 CLR 21, para.6, per Mason and Brennan JJ (High Court of Australia) is Davys v Douglas (1859) 4 H & N 180 (157 ER 806) where it was decided that the statute, 20 & 21 Vict., c.43, allowed an appeal in cases of dismissal of informations or complaints.

 

37

Deane J, in Thompson v Master-Touch TV Service Pty Ltd (No.3) (1978) 38 FLR 397, 403 (Federal Court of Australia), observed:

 

“[The common law rule against prosecution appeals] is ordinarily stated in abstract terms without specific reference to the underlying common law right which it embodies... It is, however, important that the statement of the principle in that form neither conceals nor clouds that it is, in essence, the statement of a common law right, namely, the right of a person who has been acquitted by a court of competent jurisdiction after a trial on the merits of a criminal charge to be spared the renewed jeopardy of an appeal against that acquittal.”

See also, R v Keepers of the Peace and Justices of the County of London (1890) 25 QBD 357, 360 (cited in Darvern v Messel (1984) 155 CLR 21, para.8, per Murphy Mason and Brennan JJ (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=9

 

Greek, Roman and Canon Law,38 may simply be understood as stating that “[no-one] should be tried twice for the same offence.”39 It is said that this principle is infringed if an appellate court were empowered to overturn an acquittal and order the acquitted person to stand retrial.40

1.14

However, it must be acknowledged that early statements as to the status of the common law rule were made at a time when the modern criminal process was still in embryonic form. The right to counsel, the presumption of innocence, and the law of evidence, which today are generally considered fundamental components of modern criminal law, were only in the process of formation.41 As discussed above, appeals by either side, even at the end of the nineteenth century, were rare. In this context, it would be unwise to be overly precise when seeking to fix the remote origins of the common law rule. That rule had limited practical application prior to early twentieth century reforms which introduced for the first time modern appellate court structures.

(b) Legislative Reform

1.15

During the nineteenth century there were increasing calls for reform of criminal law and procedure, including the criminal appeal process.42 Typically, reformers sought the introduction of defence rights of appeal on questions of both law and fact, although the judiciary was particularly opposed to the latter.43 In 1848


37

(cont'd) (High Court of Australia)), where Coleridge LCJ held that a prosecutor had no right of appeal against the dismissal of a summons against a person for wilfully obstructing a highway, notwithstanding that a statutory right of appeal was open to “any person who shall think himself aggrieved.” Holding that the prosecutor was not “aggrieved” and had no right of appeal, Coleridge LCJ noted two “broad and well-recognised principles of construction”, namely: “One of those is, that a man acquitted is not to be again proceeded against with respect to the same matter; another principle is that an appeal is never given except by statute.”

 

38

For discussion, see Darvern v Messel (1984) 155 CLR 21, para.4, per Murphy J (High Court of Australia).

 

39

R v Police Complaints Board; Ex parte Madden (1983) 2 All ER 353, 367, per McNeill J. This statement perhaps oversimplifies the principle which has generated volumes of legal jurisprudence. However, it is unnecessary to elucidate the intricacies of this principle for these purposes. The principle was not entirely unknown to the Greeks and Romans and was central to the dispute between Archbishop Thomas á Becket and King Henry II in the twelfth century. However, some commentators have suggested that it did not become a fundamental principle of the English common law until much later, namely, after it had attained that status under the United States Constitution: see, for discussion, McDermott, Res Judicata and Double Jeopardy (1st ed., Butterworths, 1999) at 199-200.

 

40

On the other hand, it is argued that defence appeals against conviction do not infringe the double jeopardy principle. Even where an appellate court, upon allowing a defence appeal against conviction, orders the convicted person to stand retrial, it is argued that the accused, by voluntarily undergoing the appeal procedure, has waived his double jeopardy rights. See below at para.4.24.

 

41

See, generally, McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000) at Chap.1.

 

42

See generally, Manchester, Modern Legal History (Butterworths, 1980) at 183-188.

 

43

For example, Baron Parke opposed the introduction of a Court of Criminal Appeal to consider appeals on questions of fact on the ground that any supposed advantages would be outweighed (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=10

 

pressure from reformers lead to the enactment of the Crown Cases Act, formalising the Court for Crown Cases Reserved, as discussed above.44 However, the reformers were not satisfied and the issue arose again during the course of the Capital Punishment Commission of 1866. Again, the judiciary opposed the introduction of broader defence rights of appeal.45 Little mention seems to have been made of prosecution appeals, although interestingly one witness, in the course of arguing that broader defence appeals should not be introduced, accepted that their introduction would require similar rights to be afforded to the prosecutor.46

1.16

By 1878-79, when a Royal Commission was established to consider Stephen's Draft Code, there apparently had been “a considerable shift in professional opinion”.47 The Commissioners, which included Stephen among their number, recommended the introduction of a Court of Criminal Appeal to hear defence appeals on questions of both law and fact.48

1.17

Moreover, the Commissioners tentatively recommended that a right of appeal be extended not only to the defence but also to the prosecution (albeit on questions of law only). However, the Commission wished to “express no opinion on the expediency of [extending this right to the prosecution]” and added, “little is wanted beyond an adaptation of the existing law”.49 Interestingly, Stephen was of the view that the questions of law were of “little practical importance” given that the criminal law was “for the most part so well settled”.50


43

(cont'd) by inconveniences, defeating “one of the properties which is most advantageous to the due administration of criminal justice, and that is, a speedy determination of every charge of crime”: cited in Manchester, Modern Legal History (Butterworths, 1980) at 184.

 

44

See paras.1.08-1.10 above.

 

45

Manchester, Modern Legal History (Butterworths, 1980) at 185.

 

46

This argument was made by S H Walpole: Manchester, Modern Legal History (Butterworths, 1980) at 186.

 

47

Ibid. at 186.

 

48

The Commission recommended that the parties should have the power to request a case stated rather than leave the matter solely to the discretion of the trial judge as was the case for referrals to the Court for Crown Cases Reserved. If the trial judge refused to reserve a question of law, the Attorney General would be empowered to grant leave to the party making the application to seek leave for appeal from the appellate court. The Commission also recommended the introduction of a defence-only right of appeal, with leave, on questions of fact, namely on the ground that the verdict was against the evidence: Report of the Royal Commission to consider the Law Relating to Indicatable Offences, British Sessional Papers, House of Commons, 1878-79, vol. 20, 217-366, cited in Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 314-15.

 

49

Ibid. at 315.

 

50

Stephen expressed greater concern that there was no provision for questioning the decision of the jury on matters of fact, “however unsatisfactory a verdict may be”, other than an application for a Royal Pardon. Stephen endorsed the view of the Commission that convicted persons (no mention was made of prosecution appeals on questions of fact) should be permitted a right of appeal, with leave of the trial judge, on the ground that the verdict was against the evidence: Stephen, History of the Criminal Law of England, Vol. 1 (1st ed., MacMillan & Co., 1883, reprinted by Routledge/ Thoemmes Press, 1996) at 312-15.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=11

 

1.18

Despite continuing expressions of objection to change, in 1907 the English legislature finally succumbed to pressure from the reformers and established the Court of Criminal Appeal to hear defence appeals against conviction on questions of law and fact.51 However, the Commission's recommendations as to prosecution appeals were not adopted. Similarly, prosecution appeals against acquittals were excluded from the Irish statutory appeal procedures when introduced in 1924.52 (It would not be until 1967 that the Irish legislature created a prosecution avenue of appeal, albeit only on a without prejudice basis.53 The English legislature followed suit with a slightly broader without prejudice provision in 1972.54)

1.19

In contrast, a number of the 'new world' common law jurisdictions seized upon the opportunity to enact Stephen's Draft Code. Hence, when the Australian States of Western Australia55 and Tasmania56 introduced defence rights of appeal in 1908 and 1924 respectively, they also introduced a with prejudice prosecution avenue of appeal on questions of law.57 Similarly, Canada and New Zealand introduced prosecution avenues of appeals in their criminal codes.58

(c) The Common Law Rule in the Twentieth Century

1.20

In the twentieth century the common law rule against prosecution appeals continued to operate as a principle of statutory interpretation in all common law jurisdictions. Thus, in the Northern Irish case of Benson v Northern Ireland Road Transport Board,59 the House of Lords invoked the common law rule to decline jurisdiction to hear an appeal from a dismissal in a summary case. Adopting a narrow interpretation of the general words of a statutory appeal provision,60


51

Criminal Appeal Act, 1907, ss.3 and 4. Whilst the defence could appeal on questions of law as a matter of right, appeals on questions of fact or mixed fact and law required leave of the Court of Criminal Appeal or a certificate of the trial judge.

 

52

Courts of Justice Act, 1924.

 

53

See paras.1.29-1.33 below.

 

54

See paras.1.46-1.50 below.

 

55

Criminal Code Amendment Act, 1911 (Western Australia), s.10.

 

56

Criminal Code, 1924 (Tasmania), s.401(2).

 

57

Other Australian States were slower to make provision for prosecution appeals, and only then on a without prejudice basis. See, for example: Crimes Amendment Act, 1951 (New South Wales), s.7; Justices Act Amendment Act, 1975 (Queensland), s.34; Crimes (Amendment) Act, 1978 (Victoria), s.2; Criminal Law Consolidation Act Amendment Act, 1980 (South Australia), ss.6 and 7. See, generally, Thompson v Master-Touch TV Service Pty Ltd (No.3) (1978) 38 FLR 397 (Federal Court of Australia) for a discussion of the history of the common law prohibition on prosecution appeals and the legislative inroads in Australia.

 

58

These prosecution appeal procedures have been re-enacted in the current legislature, namely: the Canadian Criminal Code, s.676; the New Zealand Crimes Act, 1961, s.380.

 

59

[1942] AC 520, 526.

 

60

The Court held that the general words of the Summary Jurisdiction and Criminal Justice Act (Northern Ireland), 1935 did not confer jurisdiction upon the Court of Criminal Appeal of Northern Ireland to reverse a decision of a court of summary jurisdiction dismissing a summons alleging an offence under the Road and Railway Transport Act (Northern Ireland), 1935 and (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=12

 

Viscount Simon LC stated that the principle that ordinarily there should not be any appeal from an acquittal made by a court of competent jurisdiction was “an extremely important and universally accepted principle of our law, and a principle which had been recognised again and again by the highest authorities in England and in Ireland.” Hence, “very clear statutory language would be needed to establish, by way of exception to the general rule, a right of appeal from a decision dismissing a criminal charge.”61

1.21

In Justice Raham Smith v R,62 the Privy Council was concerned with the appeal procedures of Bermuda, which permitted prosecution appeals against acquittals, but “on questions of law alone.”63 Relying, in part, on the common law rule, the Privy Council adopted a narrow interpretation of the provision and held that the Bermuda Court of Appeal had no jurisdiction to entertain a prosecution appeal against a trial judge's ruling that the accused had no case to answer.

1.22

In Australia, the Federal Court, in Thompson v Master-Touch TV Service Pty Ltd (No.3),64 drew on the common law to conclude that the general words of the appeal provision in question were not sufficiently clear to create a prosecution right of appeal.65

1.23

In Ireland, the common law rule was employed as a principle of statutory interpretation in People (Attorney-General) v Kennedy.66 In that case, the Supreme Court adopted a strict interpretation of section 29 of the Courts of Justice Act, 192467 to deny the Attorney General68 a right of appeal from an unfavourable


60

(cont'd) ordering the complainant to pay a sum in respect of costs.

 

61

Although this case involved an appeal from an acquittal by justices, it has been stated that the general principle “applies in respect of judgments of acquittal pronounced, after a hearing on the merits, by a court of competent jurisdiction regardless of whether the judgment was pronounced after the verdict of a jury and regardless of whether the relevant issues were issues of fact or of law”: Thompson v Master-Touch TV Service Pty Ltd (No.3) (1978) 38 FLR 397, 402 (Federal Court of Australia).

 

62

[2000] 1 WLR 1644.

 

63

Court of Appeal Act, 1964, s.17(2).

 

64

(1978) 38 FLR 397, 403 (Federal Court of Australia).

 

65

The Court concluded that the general words used in the s.24(1) of the Federal Court of Australia Act, 1976 “to hear and determine appeals” did not confer jurisdiction on it to hear an appeal by a prosecutor against the dismissal of a summary information laid under s.59 of the Trade Practices Act, 1974.

 

66

[1946] IR 517. See also the judgment of Henchy J in The People (Attorney General) v Crinnion [1976] IR 29, 34-35, where he stated: “Because section 34 of the Act of 1967 [which created a without prejudice prosecution avenue of appeal] trenches on the pre-existing rights of an accused person in criminal proceedings, it should be construed strictly.”

 

67

Section 29 of the Courts of Justice Act, 1924 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.”

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=13

 

decision of the Court of Criminal Appeal.69 The Court held that the general words of section 29, which do not expressly limit the availability of appeal to any particular party, were not sufficiently clear to create a prosecution right of appeal:70

“The giving of an appeal even to a convicted party, as in the English Act of 1907 [Criminal Appeal Act] and our Act of 1924, was a fundamental innovation. The giving of an appeal against an acquittal would be an even more fundamental innovation... [affecting] the right of personal freedom and a reversal of the policy of centuries. I could not believe that our Legislature intended to introduce such a revolutionary reversal of the policy of centuries and one gravely affecting personal freedom, by a section expressed in such terms as section 29 and subject to such ambiguity.”71

1.24

However, in what might be regarded as a watershed case in relation to prosecution appeals in this jurisdiction, in 1982 the majority of the Supreme Court in The People (Director of Public Prosecutions) v O'Shea72 held that the general words of Article 34 of the Constitution73 conferred a right of appeal upon the prosecution against acquittals in the Central Criminal Court. The majority found that the constitutional provision should be given its literal meaning unencumbered by the common law rule against prosecution appeals. Until this case, it would appear that the prosecution in this jurisdiction had never sought to appeal74 against an acquittal in a case on indictment.75


68

Pursuant to s.3 of the Prosecution of Offences Act, 1974, both the Attorney General and the Director of Public Prosecutions are now authorised to bring appeals pursuant to this provision.

 

69

The accused had been convicted in the Special Criminal Court and had successfully appealed his conviction to the Court of Criminal Appeal. The Court of Criminal Appeal denied the Attorney General leave to appeal to the Supreme Court. The Attorney General then purported to certify, pursuant to his power under section 29, that this decision involved points of law of exceptional public importance such that an appeal to the Supreme Court was in the public interest.

 

70

Courts in other jurisdictions have held that the common law rule against prosecution appeals does not apply to prosecution appeals against unfavourable decisions of appellate courts as such an appeal does not challenge an acquittal of a court of first instance. See, for example, Darvern v Messel (1984) 155 CLR 21 (High Court of Australia).

 

71

People (Attorney-General) v Kennedy [1946] IR 517, 538, per Black J. See also the decision of the United States Supreme Court, in Carroll v United States, 354 US 394 (1957), which stated: “[A]ppeals by the government in criminal cases are something unusual, exceptional, not favoured. The history shows resistance of the Court to the opening of an appellate route for the Government until it was plainly provided by the Congress, and after that a close restriction of its uses to those authorized by the statute.”

 

72

[1982] IR 384. This case followed the case of The People (Attorney General) v Conmey [1975] IR 341, where the Supreme Court held that Article 34 of the Constitution created a constitutional right of appeal from convictions in the Central Criminal Court.

 

73

See fn.101 below for the text of Article 34.4.3° of the Constitution.

 

74

In The State (Attorney General) v Binchy [1964] IR 395, the prosecution sought to quash on certiorari a directed acquittal of a jury in the Circuit Court. Whilst refusing an order of certiorari, Ó Dálaigh J indicated that his view would have been different if the jury had recorded that the acquittal was “by direction, the Court having no jurisdiction”.

 

75

Finlay P, in his dissenting judgment in O'Shea, observed: “A consideration of the decisions of Irish Courts over the past 100 years or so would seem to indicate that there is not a single (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=14

 

1.25

Whilst this constitutional avenue of appeal was closed by the legislature in 1993, the decision warrants further examination given the Supreme Court's apparent abandonment of the traditional approach to prosecution appeals. First, however, it is necessary to examine the two statutory avenues of appeal that were open to the prosecution at the time of the Supreme Court's decision in O'Shea, and which remain in force today.

B. Statutory Avenues of Prosecution Appeal

1.26

This Paper is concerned with the question as to whether prosecution appeals should be permitted in relation to cases on indictment. Nevertheless, it is pertinent to note that prosecution appeals are currently permitted in relation to summary cases and appeals against sentence.

1.27

In relation to summary cases, the Summary Jurisdiction Act, 1857 has provided a statutory avenue of appeal for prosecutors (and the defence) for well over a century.76 Another example is contained in the Fisheries (Consolidation) Act, 1959.77 These provisions appear to operate satisfactorily and therefore they will not be examined further in this Paper.78 More recently, the legislature has created a prosecution avenue of appeal against unduly lenient sentences of those


75

(cont'd) instance of a decision by any court at any level that an appeal lay with the prosecution against the acquittal of a person tried on a criminal charge with a jury. It would further appear that until the present case (notwithstanding the fact that over that period many jury acquittals must have seemed extremely unsatisfactory to the prosecuting authorities) no attempt has been made to assert such a right”: [1982] IR 384, 411–412.

 

76

Either during or at the conclusion of a District Court hearing, the prosecution or the defence may request an appeal on a point of law by case stated to the High Court: s.2 of the Summary Jurisdiction Act, 1857. A further right of appeal then lies to the Supreme Court from the decision of the High Court. See, Ryan & Magee, The Irish Criminal Process (Mercier Press, 1983) at 416-419, and Byrne & McCutcheon, The Irish Legal System (4th ed., Butterworths, 2001) at 248-250. It should be noted that s.4 of the Summary Jurisdiction Act, 1857 was struck down as unconstitutional in Fitzgerald v Ireland High Court (Kearns J), 4 May 2001. Section 4 purported to remove from the District Court the discretion to refuse to state a case to the High Court when the request originated from the prosecution. In contrast, the District Court retained the discretion to refuse a defence request on the grounds that the request was frivolous.

 

77

Fisheries (Consolidation) Act, 1959, s.310. The constitutionality of this provision was upheld by the Supreme Court in Considine v Shannon Regional Fisheries Board [1998] ILRM 11.

 

78

See, for example, the observations of the Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.27, that “the prosecution already have ample powers to appeal on a point of law to the High Court by virtue of section 2 of the Summary Jurisdiction Act 1857 and the present situation would appear to be satisfactory in this regard.” The Committee did, however, recommend the introduction of a prosecution right of appeal against a decision of a District Judge refusing to send forward an accused for trial on indictment following a preliminary examination. However, preliminary examinations have now been abolished and the service of the Book of Evidence will automatically lead to the case being sent forward for trial: Part III of the Criminal Justice Act, 1999; see Byrne & McCutcheon, The Irish Legal System (4th ed., Butterworths, 2001) at 225.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=15

 

convicted on indictment.79 Again, this topic will not be pursued here given that it has been recently addressed in the Commission's Report on Sentencing.80

1.28

In relation to cases on indictment, there are currently two statutory avenues of appeal available to the prosecution.81 First, section 34 of the Criminal Procedure Act, 1967 provides for a limited without prejudice right of appeal in relation to questions of law arising from directed acquittals in Circuit Court and Central Criminal Court trials. Secondly, section 16 of the Courts of Justice Act, 1947 provides for a limited with prejudice right of appeal by way of case stated from certain rulings made in Circuit Court trials.

(a) Section 34 of the Criminal Procedure Act, 1967

1.29

The principal statutory exception to the general prohibition on prosecution appeals against acquittal in relation to cases brought on indictment is section 34 of the Criminal Procedure Act, 1967 (“section 34 of the 1967 Act”). Pursuant to this provision, the Director of Public Prosecutions82 or the Attorney General may appeal to the Supreme Court on a question of law arising from a directed acquittal. However, there is no jurisdiction for the Supreme Court to overturn the acquittal. Section 34 of the 1967 Act provides:



(1)

 

Where, on a question of law, a verdict in favour of an accused person is found by direction of the trial judge, the Attorney General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination.

 



(2)

 

The statement of the question to be referred to the Supreme Court shall be settled by the Attorney General after consultation with the judge by whom the direction was given and shall include any observations which the judge may wish to add.

 



(3)

 

The Supreme Court shall assign counsel to argue in support of the decision.”

1.30

This right of appeal has been described as a “very limited power.”83 First, it is limited to jury trials and does not apply to trials before the Special Criminal


79

Criminal Justice Act, 1993, s.2.

 

80

Law Reform Commission, Report on Sentencing (LRC53-1996).

 

81

In relation to trials in the Circuit Court, there is also the possibility of seeking judicial review in the High Court of a trial decision made in excess of jurisdiction. However, this is not a general right of appeal and does not lie to correct errors made within jurisdiction. Furthermore, once a jury trial is embarked upon the High Court is reluctant to intervene by way of judicial review: Director of Public Prosecutions, Statement of General Guidelines for Prosecutions (2001) at para.10.2.

 

82

Section 3 of the Prosecution of Offences Act, 1974 provides for the transfer of the Attorney General's criminal functions to the Director of Public Prosecutions. However, subs.(4) provides that both the Attorney General and the Director of Public Prosecutions may exercise the powers conferred by s.34 of the 1967 Act as well as s.29 of the Courts of Justice Act, 1924.

 

83

Director of Public Prosecutions, “Opening Address to the Second National Prosecutions Conference” (Dublin, 19 May 2001).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=16

 

Court.84 More importantly perhaps, the provision is confined to judge directed acquittals. In the Supreme Court decision, The People (Attorney General) v Crinnion,85 Henchy J made the following observations regarding the ambit of the provision:

“As I read section 34, it limits the Attorney General's power of reference to a question of law on which the verdict of the jury was directed by the trial judge; it does not apply to prior questions of law which, because of their effect on the evidential content of the trial, may have had a bearing on that point of law. Otherwise, any ruling of the trial judge which specifically excludes, or has the effect of excluding, evidence could be made the subject matter of a reference under the section if in the result a direction was given because of insufficiency of evidence resulting from the earlier ruling.”86

1.31

The Director of Public Prosecutions has noted a number of matters of law that are excluded from the ambit of a section 34 appeal:

“[Section 34] is confined to the situation where the judge actually directs the jury to find a verdict of not guilty. It does not extend to other situations where a finding on a question of law can determine the outcome of a trial – for example, where the judge decides that evidence which is vital to the prosecution case should be excluded, or makes some other ruling adverse to the prosecution which effectively undermines its case or prevents it from proceeding, or where the trial judge gives a mistaken direction to the jury when charging them.”87

1.32

This interpretation of section 34 effectively renders prosecution appeals unavailable except in relation to a restricted category of rulings, namely that the accused has no case to answer in law.

1.33

As a consequence of the narrow scope of the provision, the Office of the Director of Public Prosecutions very rarely uses this provision to appeal against acquittals.88


84

The People (Attorney General) v Crinnion [1976] IR 29. Effectively, rulings of the Special Criminal Court are unreviewable by the prosecution.

 

85

Ibid.

 

86

Ibid. at 36. It should be noted that these observations were obiter, and that the two other members of the Court, O'Higgins CJ and Walsh J, declined to comment on this issue.

 

87

Director of Public Prosecutions, “Opening Address to the Second National Prosecutions Conference” (Dublin, 19 May 2001).

 

88

Director of Public Prosecutions, Statement of General Guidelines for Prosecutions (2001) at para.10.2. The Committee on Court Practice and Procedure also observe that s.34 of the 1967 Act has been infrequently utilised: Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.11. An example of a case where s.34 has been invoked is The People v Rock [1994] ILRM 66, although the provision was not the subject of discussion in the Supreme Court. The appeal related to a trial at which the accused had been charged with simple larceny contrary to s.2 of the Larceny Act, 1916. During the course of the trial evidence was given which disclosed an offence of aggravated larceny which was covered by other provisions of the (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=17

 

(b) Section 16 of the Courts of Justice Act, 1947

1.34

Section 16 of the Courts of Justice Act, 1947 applies to both civil and criminal cases in the Circuit Court and allows a Circuit Court judge to refer questions of law to the Supreme Court by way of a case-stated.89 Either party to the proceedings may avail of this provision, and hence in criminal cases the prosecution may request that a case be stated.

1.35

Although this provision has had a dramatic impact on the law of insanity,90 it has had little practical significance in the context of the criminal law as a whole. In The People (Attorney General) v McGlynn,91 the Supreme Court held that a Circuit Court judge had no jurisdiction under the provision to state a case during the course of a criminal trial on indictment.92 The Court had regard to the fact that to allow appeals mid-trial would cause undue disruption to the jury trial process.93 Given that the majority of rulings are made during the course of the trial, the provision is essentially redundant in criminal cases.94


88

(cont'd) Act. In these circumstances it was argued on behalf of the accused that it was not open to the Court to find the accused guilty of simple larceny. The trial judge accepted this argument and directed the jury to enter a verdict of acquittal. The Director of Public Prosecutions requested the Supreme Court to determine the following questions of law without prejudice to the verdict in favour of the accused: (1) whether the trial judge was bound by the precedent of a judgment of the Court of Criminal Appeal in relation to a similar matter; and (2) whether the trial judge's decision was correct as a matter of law. The Supreme Court held: (1) that the trial judge was bound by the earlier judgment of the Court of Criminal Appeal, and; (2) that the trial judge's decision was incorrect as a matter of law in that the prosecution was entitled to prosecute for simple larceny rather than aggravated larceny, thus confining the case to a lower maximum sentence.

 

89

Section 16 of the Courts of Justice Act, 1947 provides: “A Circuit Judge may, if an application in that behalf is made by any party to any matter... pending before him, refer, on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgement or order in the matter pending the determination of such case stated.”

 

90

In Doyle v Wicklow County Council [1974] IR 55, the Supreme Court recognised the defence of volitional insanity in Irish law. See, for discussion, McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000) at 662. Whilst this case was referred to the Supreme Court by way of a case stated pursuant to s.16 of the Courts of Justice Act, 1947, it was not a criminal trial but rather a civil proceeding for compensation for loss sustained as a result of an alleged criminal injury. Circuit Court judges have jurisdiction to state a case mid-hearing in civil cases where there is no jury: Doyle v Hearne [1987] IR 601.

 

91

The People (Attorney General) v McGlynn [1967] IR 232.

 

92

The Court held that jury trials are not “pending before [the trial judges]” but rather are pending before the jury. Furthermore, the provision refers to the matters upon which the trial judge may pronounce his judgement or order. These words are not apt to describe the functions that the trial judge discharges in a criminal trial on indictment given that it is the jury that gives judgment. The Court concluded, therefore, that in such cases the trial judge has no jurisdiction to state a case between the point that the accused is given in charge to the jury through to the point when the jury returns its verdict.

 

93

See, for further discussion, para.3.089 below.

 

94

Byrne & McCutcheon, The Irish Legal System (4th ed., Butterworths, 2001) at 251.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=18

 

1.36

However, a possible exception arises in relation to pre-trial rulings. In The People (Attorney General) v McGlynn,95 Walsh J made the following obiter observation:

“[A] Case Stated would lie in respect of a matter arising before the prisoner is given in charge to the jury or in respect of a matter arising after the jury had returned its verdict and before the trial judge had finally disposed of the case.”96

1.37

Whilst pre-trial rulings have not been the norm, there is at least one recent example where the Central Criminal Court has dealt with, as a pre-trial application, a motion seeking to quash an indictment on the grounds of delay and prejudice.97 Where the indictment is quashed, as in the above example, there is ordinarily no avenue of appeal available to the prosecution. However, it may be argued that in similar circumstances it would be open for a trial judge in the Circuit Court to state a case for the Supreme Court pursuant to section 16 of the 1947 Act.

C. The Abolished Constitutional Right of Appeal

1.38

As mentioned in paragraph 1.24 above, a series of Supreme Court judgments commencing with The People (Director of Public Prosecutions) v O'Shea,98 recognised for the first time a constitutional prosecution avenue of appeal. For a period of just over 10 years, until the avenue of appeal was abolished by the legislature in 1993,99 the Supreme Court considered a number of prosecution appeals against acquittals returned in Central Criminal Court trials.

1.39

Earlier, the Supreme Court, in The People (Attorney General) v Conmey,100 had accepted that it had jurisdiction to hear defence appeals against conviction by virtue of Article 34.4.3° of the Constitution.101 In The People (Director of Public Prosecutions) v O'Shea,102 a majority of the Supreme Court extended this avenue of


95

[1967] IR 232.

 

96

Ibid. at 239. At 243, Budd J also indicated, without deciding, his support for this view. Nevertheless, it would appear that the Supreme Court would not entertain an appeal on a point of law arising during the trial even when the trial judge stated the case after the verdict. The point of law would have arisen when the case was pending before the jury, and hence would fall outside the ambit of the provision.

 

97

Director of Public Prosecutions v JN Central Criminal Court (Carney J), 19 July 2001.

 

98

[1982] IR 384.

 

99

The Criminal Procedure Act, 1993, s.11, discussed at para.1.44 below.

 

100

[1975] IR 341.

 

101

Article 34.4.3° of the Constitution 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.”

 

102

[1982] IR 384. The decision in O'Shea was recently discussed in the Supreme Court judgment, Considine v Shannon Regional Fisheries Board [1998] 1 ILRM 11. The Court was considering (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=19

 

appeal to include prosecution appeals against acquittal. Disregarding the common law rule against prosecution appeals, the majority held that “the clear words of the Constitution cannot be limited or restricted by advertence to what had been the law, the policies or the procedures formerly recognised or practised.”103 The majority rejected an argument that the immunity of jury acquittals from appeal was an essential ingredient of the constitutional104 right to trial by jury.105 The majority also rejected an argument that the statutory without prejudice avenue of appeal, pursuant to section 34 of the 1967, curtailed the right of appeal afforded to the prosecution by the Constitution.106

1.40

Whilst the majority held that the Court had jurisdiction to consider appeals against all acquittals, it acknowledged that, in reality, considered verdicts of acquittal returned by a jury on the merits would not be disturbed:107


102

(cont'd) a constitutional challenge to s.310(i) of the Fisheries (Consolidation) Act, 1959, which permitted a with prejudice prosecution appeal to the Circuit Court against an acquittal following a summary trial in the District Court. The Court held that the appeal provision did not violate Article 38.1 of the Constitution, which provides that "no person shall be tried on any criminal charge save in due course of law". In doing so, the Court relied, at 22, on passages in O'Shea, including the statement of O'Higgins CJ, [1982] IR 384, 403, that "[t]he phrase 'in due course of law' denotes fair and just procedures in the conduct of the trial and the due application of the relevant law: it denotes no more." The Court stated, at 22: "It is clear... that the common law rule that there should be no appeal from an acquittal of a criminal charge was subject to the right of the legislature to provide for such an appeal provided that such right was given in clear and unambiguous language and that a trial 'in due course of law' did not necessarily involve the preclusion of a right of appeal in the event of an acquittal." However, the Court was anxious to point out, at 22, that it was not concerned in that case with the issue that arose in O'Shea, namely whether an appeal lay from an acquittal by jury in the Central Criminal Court.

 

103

[1982] IR 384, 403 per O'Higgins CJ, Walsh and Henderman JJ concurring. (Walsh J also argued, at 418, that the traditional view that acquittals were unimpeachable was demonstrably wrong in cases where acquittals had been obtained by improper means, such as through corruption or coercion of the jury.) In contrast, Henchy J, in his dissenting judgment, placed considerable weight on the common law rule.

 

104

Article 38.5 of the Constitution.

 

105

This argument is articulated in the dissenting judgment of Finlay P, [1982] IR 384, 414, and the dissenting judgment of Henchy J, at 432. In response, Walsh J, for example, argued that the Constitution cannot have envisaged that only acquittals be immune from appeal given that, at the time of the 1922 Constitution, there was no provision for either the prosecution or the defence to challenge jury verdicts.

 

106

This argument is articulated in the dissenting judgment of Henchy J: “[Section 34 of the 1967 Act] would appear to be a clear statutory recognition of the inviolacy of a jury's verdict of not guilty, even when it is directed by the trial judge on a wrong interpretation of the law”: [1982] IR 384, 443. In contrast, the majority held that s.34 of the 1967 Act provided the Supreme Court with an additional consultative jurisdiction to that provided for by the Constitution. A provision which purported to confine the Supreme Court's constitutional appellate jurisdiction would need to be clear and unambiguous: O'Higgins CJ at 403-4, Walsh J at 414, and Hederman J at 447.

 

107

The Committee on Court Practice and Procedure observed that, “while it is a nice question as to whether the O'Shea principle extends to appeals by the prosecution on the merits, in practice the four appeals all concerned directed acquittals”: Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.14. The four appeals were: The People (Director of Public Prosecutions) v O'Shea [1982] IR 384; The People (Director of Public Prosecutions) v Quilligan (No.1) [1986] IR 495 and (No.2) [1989] IR 46; The People (Director of Public Prosecutions) v Byrne [1987] IR 363; Director of Public Prosecutions v Healy [1990] ILRM 313.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=20

 

“Verdicts which are arrived at properly and are supported by evidence, while in theory appealable, would not be disturbed. This Court would be bound by findings of fact made at the trial. A conviction would be open to challenge on the sufficiency of the evidence relied on to support it, or on the trial judge's directions or rulings on law. An acquittal duly recorded by a jury on a consideration of the evidence would be immune. Where, however, as in this case, the acquittal resulted from a direction given by the judge, so that the verdict was recorded as a result of the judge's decision and not that of the jury, the Court would consider the appeal in the same manner as a similar appeal in a civil action. If the direction should not have been given, the verdict would be set aside in the same manner as a judgment in favour of a defendant where a case had been wrongly withdrawn from a jury in a civil action. As in civil actions, a new trial would be ordered.”108

1.41

The O'Shea majority was three to two and in a subsequent Supreme Court case, The People (Director of Public Prosecutions) v Quilligan and O'Reilly (No 2),109 the Court was again split, on this occasion as to whether section 34 of the 1967 Act negated the Court's jurisdiction to order a retrial following a successful prosecution appeal against an acquittal. In an earlier judgment, Quilligan and O'Reilly (No 1),110 the Supreme Court had held that the acquittal of the accused had been made on the basis of an error of law and made an order allowing the appeal. However, in Quilligan and O'Reilly (No 2) a majority of the Court declined to order a re-trial. Two members of the Court held that section 34 of the 1967 Act demonstrated the Legislature's will that, notwithstanding a successful appeal by the prosecution, the acquitted person should retain the benefit of the acquittal.111 In a very short judgment, the third member of the majority merely voted not to order a re-trial in that particular case without giving reasons.112

1.42

In summary, the effect of this line of Supreme Court decisions was to create a 'quasi' with prejudice avenue of appeal113 from the Central Criminal Court


108

[1982] IR 384, 405, per O'Higgins CJ.

 

109

[1989] IR 46.

 

110

[1986] IR 495.

 

111

[1989] IR 46, 56, per Henchy J, Griffin J concurring. Henchy J observed that if the Supreme Court had the jurisdiction to order a retrial, then s.34 would in effect be cast into disuse. In contrast, Walsh J held, at 51, that s.34 created the Court's jurisdiction to hear a case stated, but did not limit its appellate jurisdiction. McCarthy J was of the view, at 60, that if s.34 indicated the legislature's will that there be no other form of appeal available to the prosecution, then the legislature was wrong.

 

112

Ibid. at 58, per Hederman J.

 

113

It may be argued that the constitutional avenue of appeal was neither with prejudice nor without prejudice as those terms are used elsewhere in this Paper. Given that a majority of the Supreme Court never agreed that the Court had the jurisdiction to order a retrial, it could be argued that it was no more than a hybrid with prejudice / without prejudice avenue of appeal. Nevertheless, this Paper labels the constitutional avenue of appeal as being 'quasi' with prejudice on the grounds that a majority of the Supreme Court held that the Court had jurisdiction to quash an acquittal.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=21

 

to the Supreme Court which was not available from decisions of the Circuit Court or the Special Criminal Court. In addition, the without prejudice avenue of appeal provided for by section 34 of the 1967 Act was available to the prosecution from directed acquittals in the Circuit Court and the Central Criminal Court, but not in the Special Criminal Court.

1.43

In 1993 the Committee on Court Practice and Procedure recommended the abolishment of this prosecution appeal structure which it observed exhibited “a series of indefensible anomalies”.114 The Committee recommended the introduction of a with prejudice prosecution right of appeal from directed acquittals115 in the Circuit Court, the Central Criminal Court and the Special Criminal Court.116

1.44

However, whilst recognising the anomaly,117 the Legislature chose not to follow the Committee's recommendations. Rather, the Legislature simply abolished the constitutional avenue of appeal from the Central Criminal Court, thus restoring the pre-O'Shea appeal structure whereby the prosecution was restricted to a without prejudice right of appeal on questions of law arising from directed acquittals.118

1.45

The restrictive nature of this appeal structure may be contrasted with the vast majority of both common law and civil law jurisdictions abroad, as discussed below.


114

Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.19.

 

115

The Committee restricted the right of appeal to directed acquittals, stating: “[T]he prosecution should not be able to appeal against an acquittal 'on the merits', even where that acquittal is the result of an erroneous instruction by the trial judge to the jury”: Ibid. at para.22.

 

116

Ibid. at para.22. The Dublin Chamber of Commerce had earlier called for the introduction of a broader with prejudice prosecution right of appeal against all rulings of the trial judge, which was based on the Canadian model as discussed at paras.1.57-1.59 below: Dublin Chamber of Commerce, Crime and the Law: Towards a More Effective Criminal Justice System (1990) at 5.

 

117

The Explanatory Memorandum to the Criminal Procedure Bill, 1993 stated:

 

“This section removes the anomaly under existing law whereby a constitutional right of appeal from the Central Criminal Court direct to the Supreme Court exists alongside the normal statutory right of appeal to the Court of Criminal Appeal. The Court of Criminal Appeal, will, therefore, be the court of appeal in respect of all convictions in the Circuit Criminal Court, the Special Criminal Court and the Central Criminal Court. The provision for an appeal from the Court of Criminal Appeal to the Supreme Court involving a point of law under section 29 of the Courts of Justice Act, 1924 will remain. The statutory right of the prosecution to refer to the Supreme Court a verdict in favour of an accused person, without prejudice to the verdict in favour of the accused, on a question of law, will also remain.”

 

118

The Criminal Procedure Act, 1993, s.11. In addition, s.16 of the Courts of Justice Act, 1947 may also provide a with prejudice avenue of appeal against pre-trial rulings.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=22

 

D. Prosecution Avenues of Appeal in Foreign Jurisdictions

(a) The United Kingdom

(i) England and Wales

1.46

As in Ireland, the Attorney General in England and Wales may appeal a point of law on a without prejudice basis (the “English Attorney General's Reference Scheme”).119 However, in contrast to the Irish provision, the right of appeal in England and Wales is not confined to matters of law arising from directed acquittals, but extends to any question of law arising in a case where the accused has been acquitted.120

1.47

The English Attorney General's Reference Scheme has been in operation since 1974 and has resulted in more than 50 judgments to date.121 The questions of law in these references have arisen from a broad spectrum of cases, including those involving relatively trivial charges such as affray, through to the most serious offence of murder. Many of these cases, even those dating back to 1974, remain leading authorities in England.122 Whilst relatively few references are brought


119

Section 36(1)-(3) and (7) of the Criminal Justice Act, 1972 provides:

(1)

“Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall, in accordance with this section, consider the point and give their opinion on it.

 

(2)

For the purpose of their consideration of a point referred to them under this section the Court of Appeal shall hear argument–

 

(a)

by, or by counsel on behalf of, the Attorney General; and

 

(b)

if the acquitted person desires to present any argument to the court, by counsel on his behalf or, with the leave of the court, by the acquitted person himself.

 

(3)

Where the Court of Appeal have given their opinion on a point referred to them under this section, the court may, of their own motion or in pursuance of an application in that behalf, refer the point to the House of Lords if it appears to the court that the point ought to be considered by that House.

...

 

(7)

A reference under this section shall not affect the trial in relation to which the reference is made or any acquittal in that trial.”

 

120

In the Irish Supreme Court judgment, The People (Attorney General) v Crinnion [1976] IR 29, 34, Henchy J contrasted this provision with s.34 of the 1967 Act: “This, unlike our Act, does not confine the reference to a case in which a verdict has been directed by the trial judge, or to the point of law which has directly resulted in the acquittal.”

 

121

See Appendix 1. There are 51 reported judgments, together with a number of recent references in relation to which decisions have yet to be delivered.

 

122

Of the References reported prior to 1999, 44% are cited in the 1999 edition of Smith & Hogan, Criminal Law (9th ed., Butterworths, 1999).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=23

 

annually, no more than seven in one year, the arguments advanced on behalf of the Attorney General have generally been upheld.123

1.48

A recent example is Attorney General's Reference (No.2 of 1999),124 in which the Court of Appeal dealt with the topic of corporate manslaughter. The case arose from a prosecution of a train operating company in relation to the Southall rail disaster in 1997. The Court of Appeal held that manslaughter by gross negligence could be proved in the absence of evidence as to the state of the defendant's mind. The Court further held that a corporation could not be convicted of manslaughter unless an employee embodying the company could be identified as guilty of manslaughter.125 In this connection, the Court took the opportunity to canvass the recent Report of the Law Commission of England and Wales on this topic.126

1.49

Another recent reference is Attorney General's Reference (No.3 of 1999).127 The trial judge had ruled that the prosecution's DNA evidence was inadmissible and, in the absence of further evidence, directed the acquittal of the accused on charges of rape, burglary and assault occasioning actual bodily harm. On appeal, the House of Lords held that the trial judge was wrong to rule the DNA evidence inadmissible as a matter of law.128 It should be noted that notwithstanding that the excluded evidence against the accused was compelling129 and the charges were of a serious nature, the House of Lords had no jurisdiction to order a retrial given that the appeal was without prejudice to the acquittal.

1.50

An earlier judgment, which remains important in the area of legitimate defence, is Attorney General's Reference (No.2 of 1983).130 The Court of Appeal held that it had been open to the accused to make petrol bombs in preparation for the defence of his family or property against an imminently apprehended attack from rioters. The Court rejected the Attorney General's argument that such an anticipatory act was inconsistent with the spontaneous nature of self-defence.


123

In only 14% of the references were the Attorney General's arguments rejected, although in a further 6% of the references the Attorney General's arguments were only partially accepted.

 

124

[2000] QB 796.

 

125

The Court held that unless an identified individual's conduct, characterisable as gross criminal negligence, can be attributed to the company, the company is not liable for manslaughter under the English common law.

 

126

Law Commission of England and Wales, Legislating the Criminal Code: Involuntary Manslaughter (LC 237, 1996).

 

127

[2001] AC 91.

 

128

The DNA evidence in question had been obtained as a result of illegally retaining a DNA sample from an unrelated charge of burglary (for which the accused had been acquitted) which was required to be destroyed by legislation. The House of Lords did not decide whether the trial judge was also wrong to exercise his discretion to exclude the evidence, although Lord Cooke of Thorndon indicated that “it would be astonishing if Parliament had intended the evidence eventually tendered to have been ruled out.”

 

129

Lord Steyn records the Court of Appeal's view that the excluded DNA evidence against the accused was “compelling”.

 

130

[1984] QB 456.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=24

 

1.51

In addition to the Attorney General's Reference Scheme, there is also a limited with prejudice pre-trial avenue of appeal available to both the defence and prosecution against pre-trial rulings made at “preparatory hearings”, which include rulings as to the admissibility of evidence.131 However, this scheme is only available for certain serious fraud trials or other complex or long cases.

1.52

The Law Commission of England and Wales has recently proposed the introduction of a limited with prejudice right of appeal. This proposal would allow the prosecution to appeal on points of law arising from “terminating rulings”132 made during the course of trial, with the exception of no-case-to-answer rulings unless made purely on a point of law.133 This right of appeal would be limited to a certain category of serious offences and would be subject to leave requirements. The Law Commission also recommended the extension of the preparatory hearing scheme to include pre-trial rulings on severance, joinder and abuse of process applications.134

(ii) Northern Ireland

1.53

There is a similar without prejudice avenue of appeal available to the prosecution in Northern Ireland whereby the Attorney General may refer a point of law to the Court of Criminal Appeal of Northern Ireland, and further to the House of Lords.135

1.54

An important example of a case decided under this provision is Attorney General's Reference for Northern Ireland (No.1 of 1975),136 which continues to be a significant decision in relation to legitimate defence.137 The case arose from the prosecution of a solider who shot and killed a person whom the solider believed to be a terrorist as that person attempted to run away. The House of Lords held that it


131

However, the following rulings are excluded from the preparatory hearing scheme and therefore are not subject to pre-trial appeal: a motion to quash the indictment, an application based on whether the prosecution had power to bring the prosecution, an application to stay the indictment as an abuse of process, an application to apply reporting restrictions, an application to discharge a witness summons and an application to sever: see, Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.2.32-2.35.

 

132

A “terminating ruling” is one that brings about the premature termination of a prosecution case. For a discussion of the Law Commission's definition of terminating rulings, see para.3.065 below.

 

133

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at Part VII.

 

134

The Law Commission's recommendations have recently been endorsed by Auld LJ, A Review of the Criminal Courts of England and Wales (2001) at para.12.65.

 

135

The Criminal Appeal (Northern Ireland) Act, 1980, s.15 (formerly the Criminal Appeal (Northern Ireland) Act, 1968, s.48A).

 

136

[1977] AC 105.

 

137

For example, it is cited in McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000) at 772, and Smith & Hogan, Criminal Law (9th ed., Butterworths, 1999) at 256.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=25

 

may have been lawful to resort to such force if there were reasonable grounds for believing that the intention of the deceased was to secure help from associates to attack the accused and his fellow soldiers.138

(iii) Scotland

1.55

In Scotland there is also a without prejudice prosecution avenue of appeal which provides that the Lord Advocate (following either conviction or acquittal) may refer a point of law to the High Court of Justiciary for its opinion.139

1.56

A recent example of a referral is Lord Advocate's Reference (No.1 of 2000).140 In that case the trial judge had directed the acquittal of three accused charged with damaging a submarine. The accused had successfully argued at trial that their actions were justified by the necessity to prevent the government from offending against customary international law by their deployment of Trident nuclear missiles on the submarine. On appeal, the High Court of Justiciary held that the defence of necessity had not, in fact, been open to the accused.

(b) Canada

1.57

Canada has a long established with prejudice prosecution avenue of appeal.141 This provision has survived legal challenges alleging that it breaches the double jeopardy prohibition contained in the Canadian Charter of Rights and Freedoms.142 The Supreme Court has held that double jeopardy principle does not apply until after the appellate procedures have been completed.143


138

For a more recent example, see Attorney General's Reference for Northern Ireland (No.3 of 1993) [1993] NI 50 which was concerned with the interpretation of s.18(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act, 1989, which created an offence of withholding information that may be of assistance to the investigation of a terrorist offence.

 

139

The Criminal Procedure (Scotland) Act, 1995, s.123(1).

 

140

2001 SCCR 296 (High Court of Justiciary).

 

141

Section 676(1)(a)-(c) of the Canadian Criminal Code provides:

 

“The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal:

 

(a)

against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;

 

(b)

against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment;

 

(c)

against an order of a trial court that stays proceedings on an indictment or quashes an indictment...”

 

142

Section 11(h) of the Canadian Charter of Rights and Freedoms provides that an accused, “if finally acquitted of the offence, [is] not to be tried for it again...”

 

143

R v Morgentaler [1988] 1 SCR 30, 156, per McIntyre J.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=26

 

1.58

The avenue of appeal is limited to “any ground that involves a question of law alone”.144 Whilst this phrase has been interpreted so as to exclude appeals on mixed questions of fact and law,145 the courts have not always found it easy to draw a distinction between questions of law and those of mixed law and fact.146

1.59

Prosecution appeals have made a significant contribution to Canada's rich body of appellate criminal law jurisprudence. For example, the Supreme Court's judgment in Perka v R,147 which is considered one of the common law's leading cases on necessity,148 emanated from a prosecution appeal against acquittal in a drug smuggling case. Since the beginning of 2000 there has been at least 16 judgments delivered in prosecution appeal cases.149 By comparison, a similar number of prosecution appeal judgments were delivered in England and Wales over the course of the last six years,150 and in New Zealand over the last 20 years.151 The prosecution succeeded in obtaining fresh trials in 50 percent of the Canadian appeals in the sample period. Interestingly, however, most of the appeals were brought from judge-alone trials rather than jury trials.152

(c) United States of America

1.60

The law in the United States of America in relation to prosecution appeals has been described as “extremely complex”.153 However, the position may be summarised as generally permitting with prejudice appeals on questions of law.

1.61

The United States constitutional prohibition on double jeopardy bars prosecution appeals from any acquittal that involves a finding that there is insufficient evidence to convict the accused.154 Hence, in United States v Scott,155


144

The Canadian Criminal Code, s.676(1)(a).

 

145

R v Biniaris [2001] 1 SCR 381, 401.

 

146

For further discussion, see paras.3.039-3.042 below.

 

147

(1984) 13 DLR (4th) 1.

 

148

See McAuley & McCutcheon, Criminal Liability(1st ed., Round Hall Sweet & Maxwell, 2000) at 865.

 

149

See Appendix 2.

 

150

Sixteen prosecution appeals have been decided in England and Wales since 1996: see Appendix 1.

 

151

Eighteen prosecution appeals have been decided in New Zealand since 1982: see Appendix 3.

 

152

In only three of the sixteen cases in the considered sample were appeals brought where a jury had delivered the acquittal.

 

153

Whitebread & Slobogin, Criminal Procedure (2nd ed., 1986, Foundation Press) at para.30.06.

 

154

The Fifth Amendment to the US Constitution states, in part, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. For discussion, see Whitebread & Slobogin, Criminal Procedure (2nd ed., 1986, Foundation Press) at para.29.05 and Chap.30.

 

155

437 US 82 (1978).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=27

 

the United States Supreme Court held that the prosecution could appeal on a with prejudice basis where the accused had sought and obtained a dismissal “on grounds unrelated to guilt or innocence”, in this case on the grounds of pre-trial delay.156 Although the dismissal had been ordered after the commencement of the trial, and hence after jeopardy had attached,157 the majority held that the rationale behind the double jeopardy principle was inconsistent with a bar on a prosecution appeal:

“This is scarcely a picture of an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact. It is instead a picture of a defendant who chooses to avoid conviction and imprisonment, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government's case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt.”158

1.62

However, the question as to whether a dismissal is unrelated to guilt or innocence may not always be straightforward. In United States v Scott, the majority judges contrasted dismissals on grounds of pre-trial delay, which they viewed as unrelated to the accused's guilt or innocence, with dismissals on the grounds of insanity or entrapment, which they considered were true acquittals and hence unappealable.159 The dissenting judges argued that the majority approach was “incapable of principled application”160 as demonstrated by the “untenable”161


156

Ibid. at 96, per Rehnquist J, Burger Ch J and Stewart, Blackmun and Powell JJ concurring. The trial judge dismissed two out of the three counts of distributing narcotics against the accused at the close of evidence (the accused was subsequently found not guilty of the third charge by the jury). The case was dismissed, upon application by the accused, on the grounds of pre-indictment delay.

 

157

The Supreme Court has held that jeopardy attaches in a criminal jury trial when the jury are sworn in: Crist v Bretz 437 US 28, 37-38 (1978).

 

158

United States v Scott 437 US 82, 96.

 

159

Ibid. at 97-98:

 

“The defense of insanity, like the defense of entrapment, arises from 'the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense,'... where other facts established to the satisfaction of the trier of fact provide a legally adequate justification for otherwise criminal acts. Such a factual finding does 'necessarily establish the criminal defendant's lack of criminal culpability'... under the existing law; the fact that 'the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles'... affects the accuracy of that determination, but it does not alter its essential character. By contrast, the dismissal of an indictment for preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation”.

 

160

Ibid. at 112, per Brennan J dissenting, White, Marshall, Stevens JJ concurring.

 

161

United States v Scott 437 US 82, 113-4, per Brennan J dissenting, White, Marshall and Stevens JJ concurring:

 

“The suggestion that determinations concerning insanity and entrapment are 'factual' whereas dismissals of indictments for preindictment delay represent 'legal judgments'... is simply untenable. Consideration of all three defenses requires the application of legal standards to the evidence adduced at trial, and the most likely ground for reversal and (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=28

 

distinction which the majority sought to draw between dismissals based on pre-trial delay and those based on insanity or entrapment.162

1.63

In the limited circumstances that prosecution appeals are permitted,163 the constitutional “case or controversy” requirement generally dictates that they must be brought on a with prejudice basis.164 The prosecution is barred from bringing an appeal for the purposes of obtaining an “advisory opinion” (in other words, a without prejudice appeal) in the Federal jurisdiction and in most state jurisdictions.165

1.64

Prosecution appeals against pre-trial rulings are also barred where the prosecution is dismissed on the basis that there is insufficient evidence to convict.166 In such cases, jeopardy is said to attach constructively. However, in other situations, including pre-trial evidentiary rulings,167 pre-trial prosecution appeals are routinely allowed.168


161

 

(cont'd) reprosecution following the entry of a final judgment favorable to the accused on such grounds would be an appellate court's conclusion that the trial court applied an erroneous legal test".

 

162

Ibid. at 111, per Brennan J dissenting, White, Marshall and Stevens JJ concurring:

 

“The doctrine of preindictment delay, like a host of other principles and policies of the law – e.g., entrapment, insanity, right to speedy trial, statute of limitations – operates to preclude the imposition of criminal liability on defendants, notwithstanding a showing that they committed criminal acts. Like these other doctrines, the question whether preindictment delay violates due process of law cannot ordinarily be considered apart from the factual development at trial since normally only the '[events] of the trial [can demonstrate] actual prejudice'”.

 

163

Other than the prosecution appeals against mid-trial rulings permitted under the 'United States v Scott rule', appeals are also permitted against certain post-trial rulings where the appellate court will be doing no more than reinstating the jury's original guilty verdict, including appeals from orders arresting judgment (26 States), granting a new trial (33 States and the Federal Government) and acquitting a defendant whom a jury has found guilty (11 States and the Federal Government): Zavin, “The Right to Appointed Counsel on Prosecution Appeals: Hard Realities and Theoretical Perspectives” (1999) 25 NYU Rev L & Soc Change 271, 276.

 

164

For a discussion of Article III of the US Constitution, see Strazzella, “The Relationship of Double Jeopardy to Prosecution Appeals”(1997) 73 Notre Dame L Rev 1, 16-17.

 

165

State courts are not bound by this constitutional restriction, although the majority do not issue advisory opinions: ibid. at 16-17. The US Supreme Court decision in Smalis v Pennsylvania, 476 US 140 (1986) may be interpreted as overruling any State law which permits advisory opinions, but this interpretation has been disputed by Strazzella, ibid. at 23-29. It would appear that at least seven States authorise “advisory” appeals, namely Arkansas, Iowa, Kansas, Mississippi, Nebraska, Ohio, and Wyoming: see Zavin, “The Right to Appointed Counsel on Prosecution Appeals: Hard Realities and Theoretical Perspectives” (1999) 25 NYU Rev L & Soc Change 271, 278 (at fn.41).

 

166

See, Whitebread & Slobogin, Criminal Procedure (2nd ed., 1986, Foundation Press) at para.30.03.

 

167

For example, under Federal law, 18 USC, s.3731 (1988), the prosecution may appeal against pre-trial evidentiary rulings prior to trial if the US Attorney certifies that the appeal is not taken for the purposes of delay and the evidence is a substantial proof of a material fact in the proceedings.

 

168

For example, at least 37 States and the Federal Government permit prosecution appeals against pre-trial final judgments, including the dismissal of an indictment based on insufficiency of the (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=29

 

(d) New Zealand

1.65

The New Zealand Crimes Act, 1961 provides for a with prejudice prosecution avenue of appeal by way of case stated.169 During or after a trial the trial judge may reserve a question of law to be determined by the Court of Appeal.170 If the result of the trial is an acquittal, the accused is discharged but subject to being arrested again if the Court of Appeal orders a new trial.171 Whilst the legislation expressly restricts appeals to questions of law, on occasion it would appear that the Court of Appeal has been prepared to rule on questions of mixed law and fact.172

1.66

In cases where the Court of Appeal finds an error of law at trial, it may order a new trial, but only if “some substantial wrong or miscarriage of justice was thereby occasioned on the trial”.173 The Court has indicated that appellate judges


168

(cont'd) accusatory pleading, prior jeopardy, denial of a speedy trial, lack of sufficient evidence to support a bindover, prosecution misconduct and prosecution under an unconstitutional statute. At least 35 States and the Federal Government permit prosecution appeals against pre-trial interlocutory judgments, including orders suppressing evidence, dismissing arrest warrants, changing venue and denying non-protective orders for the non-disclosure of witnesses: Zavin, “The Right to Appointed Counsel on Prosecution Appeals: Hard Realities and Theoretical Perspectives” (1999) 25 NYU Rev L & Soc Change 271, 276.

 

169

Section 380 of the New Zealand Crimes Act, 1961 provides that at any time during or after a trial, whether the result of the trial is conviction or acquittal, the trial judge may reserve for the opinion of the Court of Appeal any question of law related to the case. The jurisdiction to reserve a question of law extends beyond the point when the accused is sentenced and includes the power to reserve a question of law arising from a post-trial application for the forfeiture of the proceeds of a crime: R v Collins [1990] 2 NZLR 287. If the trial judge refuses to state a case, the applicant may apply to the Court of Appeal for leave to appeal against that refusal: s.381 of the New Zealand Crimes Act, 1961. Whilst either the prosecution or defence may request a case stated, this appeal avenue is of greater importance to the prosecution given that there are also general rights of appeal available to the defence in the event of a conviction. For discussion, see Laws of New Zealand (looseleaf ed., updated 1998, Butterworths) at paras.169 and 310.

 

170

Interestingly, the trial judge's discretion to discharge an accused either prior to or during trial, pursuant to s.347 of the Crimes Act, 1961 is not susceptible to the case stated appeal procedure: R v Grime [1985] 2 NZLR 265 (CA). Discharge orders made in the District Court (which has jurisdiction to try crimes of all but the most serious nature), are susceptible to judicial review in the High Court. However, this power must be exercised sparingly and “is appropriate only in rare cases where, by reason of the nature of the error of jurisdictional law in the District Court, the intervention of the High Court is imperative”: Auckland District Court v Attorney-General [1993] 2 NZLR 129, 136. The Court of Appeal has suggested that where important questions of law arise in such cases the trial judge should direct the jury to acquit, hence giving the trial judge jurisdiction to reserve a question of law: R v Grime [1985] 2 NZLR 265, 269. This procedure is commonly adopted by the trial courts, for example R v Karpavicius [2001] 3 NZLR 41. However, the New Zealand Law Commission has recently suggested that this practice is an “unnecessary complication” and has recommended the judicial discharges be subject to the case stated appeal procedure: New Zealand Law Commission, Criminal Prosecution (Report 66, 2000) at para.158.

 

171

New Zealand Crimes Act, 1961, s380.

 

172

For discussion, see paras.3.047-3.048 below.

 

173

New Zealand Crimes Act, 1961, s.382. This test applies to both prosecution and defence appeals.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=30

 

must “ask ourselves whether we are satisfied that there is a sufficiently real prospect that the jury would have convicted [if the trial judge had not made the error of law] to warrant the [accused] being required to stand trial again on the same evidence as that which he has already been acquitted.”174 Retrials are ordered in approximately two out of every three successful prosecution appeals.175 The Court's judgment in R v Myatt176 is an example of a case where the Court declined to order a retrial notwithstanding that it allowed the appeal. The Court had found that the trial judge had misdirected the jury in relation to a charge of manslaughter. However, on balance there had been no miscarriage of justice given that the summing up had contained misdirections favourable as well as prejudicial to the prosecution.177

1.67

In the last 20 years the avenue of appeal has been in steady use by the prosecution, averaging approximately one case per year.178 Over half these appeals have been allowed, or partially allowed.179 Whilst the volume is not large by comparison with the number of defence appeals, prosecution appeals provide a significant contribution to the New Zealand criminal law jurisprudence. An example is R v Kirifi,180 a decision of the Court of Appeal, which was a leading case on the interpretation of provisions in the New Zealand Bill of Rights Act, 1990 relating to the rights of an accused upon arrest.

1.68

In addition to the case stated procedure discussed above, there is also separate provision for appeal by both the prosecution and defence against certain pre-trial rulings, including rulings as to the admissibility of evidence, applications for change of venue, severance and joinder.181 The prosecution may also appeal against certain orders bringing the prosecution to an end, such as an order quashing an indictment on the ground that it does not state in substance a crime, or the discharge of an accused on the ground that the prosecution has failed to file an indictment within the required time.182


174

In R v McFarlane CA430/95 8 December 1995, the Court of Appeal adopted this test from the Court's earlier judgment in R v Frame CA42/74, 7 August 1974.

 

175

Of the 12 successful, or partially successful, prosecution appeals in the sample, eight resulted in orders for retrial, and in a further case the question was remitted to the trial court. See Appendix 3.

 

176

[1991] 1 NZLR 674.

 

177

See also R v Metuariki [1986] 1 NZLR 488. In that case, the prosecution did not seek a retrial given that the Court of Appeal had found that the trial judge had misdirected the jury, but for different reasons to those submitted by the prosecution on appeal.

 

178

There have been at least 18 prosecution appeals by way of case stated since 1982. See Appendix 3.

 

179

Of the 18 appeals in the sample, 12 were successful or partially successful. See Appendix 3.

 

180

[1992] 2 NZLR 8.

 

181

Appeals may only be brought with leave of the Court of Appeal: s.379A of the New Zealand Crimes Act, 1961. For discussion, see Laws of New Zealand (looseleaf ed., updated 2000, Butterworths) at para.304.

 

182

There is also provision for the defence to appeal against the refusal of the judge to grant these orders.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=31

 

(e) Australia

1.69

There is no uniform approach taken by the various Australian State Governments, although with prejudice prosecution appeals are generally not permitted, the exceptions being in Tasmania and Western Australia.183

1.70

New South Wales is an example of a state operating a without prejudice prosecution appeal scheme.184 There, the Attorney-General or Director of Public Prosecutions may submit to the Court of Criminal Appeal “any question of law arising at or in connection with the trial” where that question is one of general importance for future trials in New South Wales.185 The New South Wales Law Reform Commission has recently recommended against the introduction of a with prejudice prosecution avenue of appeal.186

1.71

In Western Australia, both without prejudice and with prejudice avenues of appeal are available to the prosecution. In relation to without prejudice appeals, the trial judge must refer, upon request by the Attorney-General, any question of law which arose at the trial to the Court of Criminal Appeal, together with a statement of the circumstances.187


183

For discussion, see New South Wales Law Reform Commission, Directed Verdicts of Acquittal: Discussion Paper (DP 37, 1995). See also Findlay, Odgers & Yeo, Australian Criminal Justice (1st ed., 1994, Oxford University Press) at 249, where the authors state that Tasmania is the only State to allow prosecution appeals against “verdicts of not guilty”. Whilst it is correct that Tasmania is the only State where considered jury acquittals may be appealed, it should be noted that prosecution appeals are permitted against directed acquittals in Western Australia.

 

184

Prosecution without prejudice appeals on questions of law are also permitted in the Australian Capital Territory: Federal Court of Australia Act, 1976 (Cth), s.30A; see, for example, DPP v G [1999] FCA 108; in Victoria: Crimes Act, 1958, s.450A (inserted by Crimes (Amendment) Act, 1978, s.2); see, for example, Attorney-General's Reference (No.1 of 1983) [1983] 2 VR 410; in South Australia: Criminal Law Consolidation Act, 1935, ss.350-352 (inserted by Criminal Law Consolidation Act Amendment Act, 1980, ss.6 and 7); see, for example, Director of Public Prosecutions' Reference (No.1 of 1992) (1992) MVR 620; and in Queensland: Criminal Code Act, 1899, s669A(2)(b) (inserted by the Criminal Code and the Justices Act Amendment Act, 1975, s.34). For example, in the Queensland case of Mellifont v Attorney-General (Queensland) (1991) 173 CLR 289 (High Court of Australia), the prosecution appealed against a trial judge's ruling that the element of materiality was not present in a prosecution for perjury at a royal commission of inquiry on the grounds that the alleged false evidence related to a time outside the terms of the commission's inquiry. The ruling was overturned on appeal, and although it was without prejudice to the particular charge, it was of considerable significance to other perjury charges which the prosecution intended to bring against the accused.

 

185

The New South Wales Criminal Appeal Act, 1912, s.5A(2)(a) (inserted by s.7 of the Crimes (Amendment) Act, 1951). For discussion, see New South Wales Law Reform Commission, Directed Verdicts of Acquittal: Discussion Paper (DP 37, 1995) at para.2.2.

 

186

New South Wales Law Reform Commission, Directed Verdicts of Acquittal (R 77, 1996). The Commission concluded, at para.3.4: “The Commission is of the view that to permit appeals from an acquittal would be a major change to the present law. To undertake major changes in the law to accommodate a rare problem requires a very strong case, which, in our view, has not been made out.”

 

187

The Western Australian Criminal Code Act, 1913, s.693A. The accused has the right to be heard at the appeal, but if it appears that the accused does not propose to appear then the Attorney-General shall instruct counsel to argue the point on behalf of the accused. The identity of the accused is automatically suppressed.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=32

 

1.72

In contrast, the with prejudice prosecution right of appeal is limited to cases where there has been a directed acquittal.188 However, the prosecution is permitted to challenge not only the decision to direct the acquittal, but also the prior rulings upon which a directed acquittal is founded. Hence, in R v Udechuku,189 a prosecution appeal was allowed against an erroneous ruling of the trial judge refusing to grant the prosecution an adjournment in order that two prosecution witnesses could be found. As a result of this refusal, the prosecution had led no evidence against the accused, and the trial judge had directed the jury to acquit. Notwithstanding that the directed acquittal was itself unimpugnable, indeed it was the only lawful course of action for the trial judge to adopt, the prior interlocutory judgment was open to challenge as it was the basis of the subsequent directed acquittal.

1.73

As in Western Australia, Tasmania also makes provision for both without prejudice and with prejudice avenues of appeal. Following an acquittal, the prosecution may bring an appeal on a without prejudice basis on “any question of law that has arisen at trial”.190 Similarly, the prosecution may appeal on a with prejudice basis “against an acquittal on a question of law”.191

1.74

Prior to a 1987 amendment, the with prejudice provision referred to “questions of law alone”.192 The High Court of Australia interpreted the pre-1987 provision as excluding appeals on questions of mixed fact and law, such as evidentiary rulings:

“An appeal on the ground that the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law


188

Section 688(2)(b) of the Western Australian Criminal Code Act, 1913 states that the prosecution may appeal “against any verdict of acquittal on an indictment and any judgment founded thereon when such verdict has been found by direction of the judge or other authority entitled to give directions on law to the jury at the trial.” The prosecution may also appeal against “any decision allowing a demurrer to an indictment or arresting judgment on an indictment or quashing an indictment”, or against “any judgment... given on a plea to the jurisdiction of a Court to try an accused person for an offence in an indictment”: s.688(2)(a) and (c). In addition, where the case is tried by judge alone, the prosecution may appeal against an acquittal on a question of law, or with leave, on a question of mixed fact and law or fact alone: s.688(2)(ba).

 

189

[1982] WAR 21, discussed in, New South Wales Law Reform Commission, Directed Verdicts of Acquittal: Discussion Paper (DP 37, 1995) at paras.3.11-3.16.

 

190

Section 388AA(1) of the Tasmanian Criminal Code Act, 1924 states: “Subject to subs(5), where a person has been acquitted after his trial on indictment, the Attorney-General may, within 28 days after the conclusion of the trial, refer any question of law that has arisen at the trial to the Court of Criminal Appeal for determination by that Court.” See, for example, Attorney-General's Reference (No 1 of 1996); Weiderman, David John, Re [1998] TASSC 12, which dealt with the defence of intoxication under Tasmanian criminal law.

 

191

The prosecution must obtain leave of the Court of Criminal Appeal or a certificate of the trial judge that the case is fit for appeal: s.401(2)(b) of the Tasmanian Criminal Code Act, 1924. The prosecution also has a right of appeal against an order arresting judgment: s.401(2)(a).

 

192

The word “alone” was removed in 1987 by section 7 of the Criminal Code Amendment Act.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=33

 

which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence...”193

1.75

Notwithstanding the removal of the word “alone”, the New South Wales Law Reform Commission suggest that the 1987 amendment does not “by implication” increase the ambit of the appeal provision to include questions of mixed fact and law.194

1.76

Although both the with prejudice and without prejudice appeal avenues appear to have been used relatively infrequently,195 they have resulted in a number of significant appellate court rulings. For example, the High Court of Australia's 1961 decision, in Vallance v R,196 remains a leading case on the topic of mens rea.197 Another example is Williams v R,198 which is a leading case in relation to the admissibility of confessions obtained during illegal detentions.199


193

Williams v R (1986) 161 CLR 278, 301-302, per Mason and Brennan JJ, interpreting s.401(2) of the Tasmanian Criminal Code Act, 1924 which restricts prosecution appeals to questions of law. In contrast, the Western Australian provision does not expressly limit prosecution appeals to questions of law, although Pigeon J observed, in the Supreme Court of Western Australian decision of R v Punevski [2001] WASCA 121, para.40, that the statutory context of the provision “would indicate that the section contemplates a direction in law.”

 

194

The Commission points out that the same amendment was made to the provision concerned with defence appeals against conviction which is still restricted to questions of law (questions of mixed fact and law being dealt with elsewhere): New South Wales Law Reform Commission, Directed Verdicts of Acquittal: Discussion Paper (DP 37, 1995) at paras.3.10. The South African Law Commission, to the contrary, suggest that the section is now construed as including questions of mixed law and fact, although this statement is not supported by references. For further discussion, see paras.3.043-3.046 below.

 

195

For example, there appears to be only eight reported decisions in relation to appeals brought under the Victorian without prejudice provision since 1983: Attorney-General's Reference (No.1 of 1983) [1983] 2 VR 410 (Supreme Court of Victoria, Appeal Division); Director of Public Prosecutions' Reference (No.1 of 1984) [1984] VR 727 (Full Court of the Supreme Court of Victoria); Director of Public Prosecutions' Reference (No.1 of 1988) [1989] VR 857 (Full Court of the Supreme Court of Victoria); Director of Public Prosecutions' Reference (No.1 of 1992) [1992] 2 VR 405 (Supreme Court of Victoria, Court of Criminal Appeal); Director of Public Prosecutions' Reference (No.1 of 1992) Supreme Court of Victoria, Appeal Division, 16 December 1994; Director of Public Prosecutions' Reference (No.1 of 1996) (1997) 149 ALR 574 (Supreme Court of Victoria, Court of Appeal); Director of Public Prosecutions' Reference (No.2 of 1996) Supreme Court of Victoria, Court of Appeal, 26 September 1997;Director of Public Prosecutions' Reference (No.2 of 2001) Supreme Court of Victoria, Court of Appeal, 8 August 2001.

 

196

(1961) 108 CLR 56. The with prejudice appeal, brought pursuant to s.401(2)(b) of the Tasmanian Criminal Code Act, 1924, was concerned with the acquittal of the accused on charges of unlawful wounding.

 

197

It is cited as an authority in O'Connor & Fairall, Criminal Defences (3rd ed., Butterworths, 1996) at 15.

 

198

(1986) 161 CLR 278 (High Court of Australia). The with prejudice appeal, also brought pursuant to s.401(2)(b) of the Tasmanian Criminal Code Act, 1924, was concerned with the acquittal of the accused on charges of burglary and stealing.

 

199

It is cited as an authority in Findlay et al., Australian Criminal Justice (1st ed., Oxford University Press, 1994) at 50-51. See also, Attorney-General's Reference (No.1 of 1992) (1993) 67 A Crim R 415 (Full Court of Supreme Court of Tasmania, Court of Criminal Appeal) which is cited in O'Connor & Fairall, Criminal Defences (3rd ed., Butterworths, 1996) at 201 as a leading case on the requirement of “immediacy” for the defence of provocation under the (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=34

 

(f) South Africa

1.77

In South Africa, prosecution appeals are permitted on a with prejudice basis, but are limited to questions of law.200 It should be noted that criminal proceedings in South Africa are conducted before a judge and assessors rather than a jury.201

1.78

It would appear that this avenue of appeal is used sparingly by the prosecution.202 Although the reason for this is unclear, the Courts have encountered a number of practical difficulties with the appeal scheme,203 including the “artificial” and “vexed” question as to whether a question is one of fact or law.204

1.79

The South African Law Commission has recently recommended that the scope of this avenue of appeal should be broadened to include appeals on the merits, or in other words, appeals on questions of fact.205 The Commission described the right of the prosecution to appeal as “a core characteristic of a judicial system which gives expression to the value of the rule of law”, and argued that this right should not be limited to errors of law:

“To err is human and protection against error is necessary. Judicial officers are fallible with regard to the findings of fact and of law. A court once removed from the heat of a trial is often better able to judge the rationality of factual conclusions, the correct finding of the law and the


199

(cont'd) Tasmanian Criminal Code, 1924.

 

200

The South African Criminal Procedure Act, 1977, s.319. The prosecution or defence may apply to the trial court to formulate a question of law for the Supreme Court of Appeal. Whilst this avenue of appeal is theoretically open to the accused, it is of no practical use given the accused's general right of appeal against conviction.

 

201

Trial by jury was abolished in 1969.

 

202

South African Law Commission, Third Interim Report on Simplification of Criminal Procedure (The Right of the Director of Public Prosecutions to Appeal on Questions of Fact) (Project 73, 3rd Interim Report, 2000) at 1.

 

203

Other problems relate to the failure of trial judges to state the relevant facts to the appeal court, and the unavailability of appeals where an accused is found guilty of a lesser crime and hence not acquitted: Ibid. at 10-11.

 

204

Ibid. at 10-11. The Commission summarises, at 11, the ruling in Magmoed v Janse van Rensburg and Others, 1993 (1) SACR 67 (A):

 

“[A] genuine question of law is whether the proven facts bring the conduct of the accused within the ambit of the crime charged. Such a question involves an enquiry as to the essence and scope of the crime charged by asking whether the proven facts in the particular case constitute the commission of a crime. But a question of law is not raised by asking whether the evidence establishes one or more of the factual ingredients of a particular crime where there is no doubt or dispute as to what those ingredients are.”

 

205

South African Law Commission, Third Interim Report on Simplification of Criminal Procedure (The Right of the Director of Public Prosecutions to Appeal on Questions of Fact) (Project 73, 3rd Interim Report, 2000).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=35

 

fairness of the proceedings. Through appeal and review proceedings consistency and uniformity in the application of the law may be achieved. It furthers equality before the law.”206

1.80

The reform proposal would appear to have been prompted by a growing public perception that the South African criminal justice system is unable to tackle crime effectively and that criminals are escaping punishment due to bias and incompetence on behalf of the courts and the prosecution.207 The Commission were also concerned as to a lack of balance within the system:

“The question can validly be raised whether, within a constitutionally protected fair trial system, an undue lack of concern for the interests of [the] prosecutor can any longer be justified.”208

1.81

The Commission rejected the suggestion that prosecution appeals should be on a without prejudice basis. The Commission argued that the public interest furthered by prosecution appeals was not restricted to having the law declared, but included seeing that a guilty person does not escape punishment.209

(g) Germany

1.82

In Germany, there is a with prejudice prosecution right of appeal against acquittals. In relation to less serious offences, both the prosecution210 and defence may appeal against the verdict on questions of law and fact (Berufung).211 However, in relation to more serious offences, appeals are restricted to questions of law (Revision).212 The relatively limited ambit of Revision is explained:


206

Ibid. at 55.

 

207

South African Law Commission, Third Interim Report on Simplification of Criminal Procedure (The Right of the Director of Public Prosecutions to Appeal on Questions of Fact) (Project 73, 3rd Interim Report, 2000) at 32-33.

 

208

Ibid. at 62-3.

 

209

Ibid. at 61. At 64, the Commission rejected the argument that a prosecution appeal on the merits would violate the double jeopardy principle, but further argued that even if it did, it would be a justifiable limitation on the protection afforded by the principle.

 

210

The prosecution also has the right to appeal in favour of the accused in order to ensure that an unsound conviction has a chance of being remedied: see, Foster, German Legal System & Laws (2nd ed., 1996, Blackstone Press) at 225.

 

211

The German criminal procedural code (Strafprozeßordnung), ss.312-332. The lower courts (Amtsgericht), are each presided over by a single judge and deal with criminal matters where the sentence for the alleged crime is expected to be no more than one year imprisonment. Criminal matters with an expected penalty of imprisonment of up to four years may be tried in a specialist criminal chamber (Schöffengericht) consisting of one professional judge and two lay judges. In complex matters where a second professional judge is considered necessary an Erweitertes Schöffengericht can be established. See, Foster, German Legal System & Laws (2nd ed., 1996, Blackstone Press) at 41-42 and 225-226.

 

212

The German criminal procedural code (Strafprozeßordnung), ss.333-358. Chambers of the Landgericht (including Große Strafkammer, which try serious offences, and Schwurgericht, which try certain very serious offences such as unlawful killing) are constituted by three professional and two lay judges. The higher regional courts of appeal (Oberlandesgerichte) act (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=36

 

“Revision is only available in fairly narrow circumstances, involving questions of law, the right law, the correct application, the correct procedure and the correct punishment by the lower court... The pre-trial proceedings cannot be the subject of a review and questions of fact are excluded. However, the term 'law' can be subject to a very wide interpretation and has included customary law, regulations, general rules of international law, rules of scientific experience and logic.”213

1.83

There is also a form of interlocutory appeal (Beschwerde) whereby not only the prosecution and defence, but also witnesses and victims, may challenge any judicial decisions in the course of the trial, with the exception of the verdict which may only be challenged by Berufung and Revision.214

(h) France

1.84

In France, the most serious crimes are tried before the assize court (cour d'assises) which is comprised of three professional judges and nine jurors.215 The prosecution may not appeal against acquittals delivered by the assize court except on questions of law.216 These appeals are without prejudice to the acquittal.217

1.85

In contrast, the prosecution may bring a with prejudice appeal against an acquittal delivered by one of the lower courts, which are comprised of judges only.218


212

(cont'd) as courts of first instance for the most serious criminal cases, such as treason. See, Foster, German Legal System & Laws (2nd ed., 1996, Blackstone Press) at 42-43 and 226.

 

213

Foster, German Legal System & Laws (2nd ed., 1996, Blackstone Press) at 226.

 

214

The German criminal procedural code (Strafprozeßordnung), ss.304-311a. See, Foster, German Legal System & Laws (2nd ed., 1996, Blackstone Press) at 226.

 

215

Article 244 of the Code de Procédure Pénale. The judges and jury deliberate together both in relation to the question of guilt and sentence: Van Den Wyngaert, Gane, Kühne, McAuley (eds.), Criminal Procedure Systems in the European Community (1993, Butterworths) at 113-114.

 

216

An appeal on a point of law by pourvoi en cassation is heard by the chambre criminelle of the Cour de Cassation. Appeals may be brought on the grounds: that the trial court was not properly constituted or the proceedings did not take place in public; that the court was not competent to reach the decision it did; that the court took decisions which were ultra vires; that there were procedural irregularities; that the court's reasoning was unsatisfactory; or that the decision taken was illegal. See, West et al., The French Legal System: An Introduction (1992, Format Publishing) at 268-269.

 

217

Article 572 of the Code de Procédure Pénale. See, West et al., The French Legal System: An Introduction (1992, Format Publishing) at 268.

 

218

Misdemeanours, contraventions, are dealt with by the tribunal de police, single judge courts. Intermediate crimes, délits, are dealt with by the tribunal correctionnel, which is comprised of between one and four judges. See, Van Den Wyngaert, Gane, Kühne, McAuley (eds.), Criminal Procedure Systems in the European Community (1993, Butterworths) at 113, 134.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=37

 

(i) Italy

1.86

In Italy the prosecution may appeal, with prejudice, acquittals delivered by the lower courts219 in relation to less serious crimes both on questions of fact and law.220 In contrast, acquittals delivered by the higher courts221 in relation to more serious crimes may only be the subject of with prejudice appeals on questions of law.222 Whilst the lower courts are presided over by judges only, the higher courts are comprised of two full time judges and six lay judges.

1.87

A similar appeal structure is operated in Belgium223 and Denmark.224

(j) The Netherlands

1.88

There are no jury trials in the Dutch criminal justice system. Hence, the prosecution may generally appeal with prejudice appeals on the merits of any acquittal, whether it relates to a minor or serious offence, and whether delivered by the higher or lower courts. Appeals are conducted by way of full rehearing.225

(k) Summary of Prosecution Avenues of Appeal in Foreign Jurisdictions

1.89

In summary, the limited without prejudice avenue of appeal available in Ireland may be contrasted with a general trend abroad towards with prejudice avenues of appeal. Furthermore, whilst in Ireland appeals are restricted to questions of law arising from directed acquittals, most foreign jurisdictions discussed above permit appeals on questions of law arising from any trial ruling.


219

The Pretore is a single judge who is competent to try crimes carrying a sentence of not more than four years imprisonment. The Tribunale is comprised of three full-time judges and is competent to try all crimes not assigned to the Pretore or the Corte d'Assise, including robbery, kidnapping and corruption: See, ibid. at 227-228.

 

220

See, Van Den Wyngaert, Gane, Kühne, McAuley (eds.), Criminal Procedure Systems in the European Community (1993, Butterworths) at 256-257.

 

221

The Assize Court, Corte d'Assise, deals with the most serious crimes such as murder, manslaughter and slavery. See, ibid. at 228.

 

222

See, ibid. at 256-257.

 

223

See, ibid. at 10-11 and 47.

 

224

In Denmark, the more serious crimes are tried before three judges and a jury, which deliberate and decide the question of guilt separately. Acquittals may only be appealed on questions of law. Intermediate crimes are tried before a mixed bench of two lay judges and one professional judge. Despite the involvement of lay judges, acquittals delivered by these courts may be appealed on questions of fact and law. See, ibid. at 56-57 and 70-71.

 

225

Minor offences are tried before sub-district courts, and are appealable to the district court. More serious offences are tried before district courts, and are appealable to the courts of appeal. There is also a rarely used without prejudice prosecution avenue of appeal to appeal questions of law to the Supreme Court. See, ibid. at 287-8 and 313-315.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=38

 

1.90

In general it may be said that, whilst the volume of prosecution appeals in the common law jurisdictions is not great, there is evidence that, where used, such appeals have made a significant contribution to the development of criminal law appellate jurisprudence.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=39

 

CHAPTER TWO: AN OUTLINE OF ARGUMENTS FOR AND AGAINST PROSECUTION APPEALS

2.01

This chapter examines the general arguments for and against a broader prosecution right of appeal. It will be seen that there are essentially two arguments against prosecution appeals, the most compelling argument being the potentially oppressive nature of such appeals to an acquitted person, and a secondary argument being the detrimental effect of delay on the criminal justice system. On the other hand, those who argue in favour of prosecution appeals urge the importance of achieving just outcomes and improving substantive criminal law jurisprudence for future cases.

2.02

Naturally, the broader the prosecution avenue of appeal the greater the potential oppressiveness to the acquitted person. As stated at paragraph 10 above, the breath of the appeal avenue will depend on whether it is with or without prejudice to an acquittal, whether the appeal is limited to questions of law and whether the appeal is restricted to questions arising from directed verdicts. To use extreme examples, a without prejudice appeal limited to questions of law arising from a directed verdict (the current appeal scheme) will be perceived as less oppressive to an acquitted person than a with prejudice appeal on the factual merits of a jury acquittal. However, rather than deal with the specifics of the various types of appeal at this stage,226 this chapter addresses the general objections to prosecution appeals and the responses to those objections.

2.03

The starting point for those who argue against a broad prosecution right of appeal is the argument that prohibition of appeals against acquittal is a rule with a distinguished historical pedigree and should be treated as a fundamental right of all citizens.227 (The origins of the common law rule against prosecution appeals is discussed in greater depth in Chapter One above.)

2.04

In response it may be argued that, whilst it is true that historically there has been a strong resistance to the introduction of prosecution appeals, until the beginning of the twentieth century there were also few avenues for defence appeals against conviction. As a consequence of legislative initiatives, defence appeals against conviction are now relatively commonplace. Whilst the legislatures in Ireland and England chose not to make similar provision for prosecution appeals, statutory prosecution avenues of appeal are now well established in a number of other common law jurisdictions.


226

The specific categories of prosecution appeal are examined in Chapter Three.

 

227

This is the essence of the arguments advanced by Finlay P in his dissenting judgment in The People v O'Shea [1982] IR 384, 411-414. This argument is also raised in the dissenting judgment of Henchy J, at 431-2.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=41

 

2.05

Furthermore, it may be argued that the rules and practices of the nineteenth century criminal justice system have less relevance to the present. The common law rule cloaking acquittals with immunity from appeal developed at a time when accused persons were not afforded many of the procedural safeguards in place today.

2.06

Nevertheless, the prohibition on prosecution appeals coupled with the availability of defence appeals may be seen as one of the advantages conferred upon the defence which aim to minimise the risk of innocent people being convicted. Procedural advantages enjoyed by the defence, such as the precept that the prosecution must prove its case beyond a reasonable doubt, are often justified on the grounds that it is necessary to compensate for the powerlessness of the accused relative to the state.228

2.07

In response, it may be argued that the system is unduly weighted in favour of the accused in terms of appeal rights.229 Proponents of this argument would say that the absence of a right of appeal for one side is an anomaly, or imbalance, within the system.230 Furthermore, it has been said that the unjustified acquittal of a guilty person is almost as much a denial of justice as the wrongful conviction of the innocent.231 As O'Higgins CJ observed in The People v O'Shea:

“It should be remembered that the Constitution is concerned with justice and, in the context of this case, with criminal trials being fairly conducted in due course of law. While these considerations provide safeguards for the person accused, they also guarantee to the State which accuses him, and which has a duty to detect and suppress crime, that he will be tried fairly and properly on the evidence adduced against him and in accordance with law. If, as a result of an error made by the trial judge, the jury is not permitted to consider the evidence or the charge brought against an accused or to pronounce on his guilt or innocence, can it be said that justice has been accorded to the State and to society? In my view, it cannot and, if this be so, a situation would exist which the Constitution prohibits.”232


228

New South Wales Law Reform Commission, Directed Verdicts of Acquittal: Discussion Paper (DP 37, 1995) at para.4.14.

 

229

Contrasting the avenues of appeal available to the defence and the prosecution, the current Director of Public Prosecutions has observed that “it is clear that the principle of equality of arms between the prosecution and the defence does not apply to the Irish criminal justice system”: Director of Public Prosecutions, “Opening Address to the Second National Prosecutors Conference” (Dublin, 19 May 2001).

 

230

See: Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.20; Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.1.8 and 7.11; Miller, “Appeals by the State in Criminal Cases” (1927) 36 Yale LJ 486.

 

231

See, Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.20.

 

232

[1982] IR 384, 405. However, it is not suggested that the legislative denial of a prosecution right of appeal to the Supreme Court would be unconstitutional. O'Higgins CJ recognises as much (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=42

 

2.08

However, the prospect of a prosecution appeal might be considered oppressive to an acquitted person. First, an appeal may result in a further financial burden. Whilst the burden of legal costs is eliminated where legal aid is available,233 an acquitted person may suffer other financial burdens such as the disruption of normal employment or business.234

2.09

Secondly, an appeal will inevitably involve delay in the final determination of the charge.235 It might be anticipated that delays could have a severe psychological impact on many acquitted persons, particularly if there is a possibility of the acquittal being quashed and a retrial ordered.236

2.10

However, it must also be acknowledged that the resolution of any prosecution causes delay and inconvenience to an accused. The question arises whether additional delay can be justified in cases where a prosecution appeal is sought.

2.11

It may be argued that acquitted persons should not suffer any additional delay on account of trial errors over which they had no control.237 However, the counter-argument is that, in reality, many judicial errors are induced by the submissions of an accused's counsel, and therefore it is wrong that the accused should be entitled to take advantage of any error.238 Furthermore, permitting an acquitted person a 'windfall' of an unwarranted acquittal might weaken public


232

(cont'd) when he stated: “In any event, whether an added burden is imposed or not, the appeal stems from the Constitution and can, if thought proper in this particular instance, be altered by appropriate legislation”: [1982] IR 384, 405. Indeed, s.11 of the Criminal Procedure Act, 1993 was subsequently enacted which removed the prosecution right of appeal recognised by the Supreme Court in O'Shea.

 

233

Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.20.

 

234

New South Wales Law Reform Commission, Directed Verdicts of Acquittal (R 77, 1996) at para.2.12.

 

235

Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at para.4.6.

 

236

In relation to this issue, the New South Wales Law Reform Commission invoke the principle of double jeopardy: “The development of the principle [of double jeopardy] has gone beyond prohibiting multiple punishment for the same offence, to adopting practices to prevent undue prolongation of the criminal process. To allow otherwise is to risk harassment of an accused, who is, after all, presumed innocent”: New South Wales Law Reform Commission, Directed Verdicts of Acquittal (R 77, 1996) at para.2.8. If, however, prosecution appeals were to be allowed, delays could be minimised by way of time limits on the exercise of appeal rights and the conducting of any subsequent retrials: See Chapter Four below.

 

237

Chambers J stated in a dissenting judgment in the Tasmanian Court of Criminal Appeal decision, R v Jessop [1974] Tas SR 64, 86: “If the judge makes a mistake and the accused is acquitted, then the setting aside of the verdict may involve the accused in the emotional ordeal of going through it all again, although the mistake was something over which he had no control.”

 

238

Shaw, “Prosecution Appeals Taken Mid-trial and Following Acquittal: Changing the Trial and Review of Criminal Cases in Ohio” (1996) 22 Ohio NUL Rev 729, 733.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=43

 

confidence in the criminal justice system.239 It is also likely to be detrimental to law enforcement itself:

“Without any safety net in which to catch judicial error, society's interest in law enforcement is greatly compromised. The community incurs an incalculable expense when the vast machinery constructed to bring criminals to justice can be felled by the simple error of a single unreviewable judge.”240

2.12

However, delay could have a detrimental effect not only upon the acquitted person, but also upon all those involved in the case. Whilst complainants will often be dissatisfied with an acquittal, it is not necessarily in their interests that acquittals are challenged. The complainant, like the acquitted person, would be denied finality until the conclusion of the appeal or, possibly, until after enduring a retrial. Prosecution appeals might also be expected to cause some, albeit presumably minor, delay to the general administration of the criminal justice system, using scarce financial and court resources.241

2.13

Thirdly, if there were a with prejudice right of appeal, there would be a risk that the prosecution would have the opportunity to 'mend its hand' in the event of a retrial. Acquitted persons might find themselves facing stronger prosecution cases, particularly where prosecution witnesses did not swear up at the first trial or where deficiencies were discovered in the prosecution case.242 There might be a risk that such appeals would enable the prosecution to remedy incompetence or underpreparedness.243 The defence may also be disadvantaged at any retrial where it has revealed some or all of its strategy at the first trial. This would be particularly so where the acquitted person has given evidence which a prosecutor could then study for defects and inconsistencies.244 Furthermore, prosecution witnesses may be better prepared given that they will have had a 'dry run' at giving evidence.245


239

New South Wales Law Reform Commission, Directed Verdicts of Acquittal (R 77, 1996) at para.2.16.

 

240

Shapiro, “Reviewing the Unreviewable Judge: Federal Prosecution Appeals of Mid-Trial Evidentiary Rulings” (1990) 99 Yale LJ 905, 906. The author gives the example of the cost to society incurred when fraud and other 'white collar' cases are brought to an end by erroneous rulings. He notes that whilst these cases are likely to be relatively few in number, they carry a large cost in terms of the value of the property stolen as well as the expense of bringing complex and lengthy prosecutions. He also notes the demoralising effect of such rulings on law enforcement agencies.

 

241

Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at para.4.6.

 

242

See, Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.20.

 

243

New South Wales Law Reform Commission, Directed Verdicts of Acquittal: Discussion Paper (DP 37, 1995) at para.4.12.

 

244

New South Wales Law Reform Commission, Directed Verdicts of Acquittal (R 77, 1996) at para.2.9.

 

245

Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at paras.6.2-6.7. However, the Law Commission concluded that even though it may be that, on balance, the prosecution would be advantaged by a re-trial, the availability of a retrial (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=44

 

2.14

However, it should be noted that there may be occasions where the defence will be at an advantage at retrial, such as where inconsistencies arise from the prosecution evidence, where the defence is able to secure additional evidence or where the defence is able to adopt a new and more effective strategy.246

2.15

As the law stands, there is a risk that judges at first instance will remain unaccountable to the appeal courts in a respect of legal rulings, which constitute an important aspect of their responsibilities.247 Arguably, in an appropriate case, this unaccountability could lead to a perception, however misguided, of bias or corruption in the judiciary.248

2.16

In summary, there would appear to be compelling arguments both for and against a broader prosecution right of appeal. However, is the question of mere theoretical interest, or would a new prosecution appeal right have practical significance?

2.17

Although no more than speculation, it might be anticipated that any new right of prosecution appeal would be used relatively infrequently.249 If this were the case, on the one hand, its introduction would not cause undue disruption to the system but, on the other, one could question the need for a further complication in procedure if there is little demand for new appeal powers. In this regard, the following observation has been made on a proposed new with prejudice prosecution right of appeal in England and Wales:


245

(cont'd) would not, on its own, constitute an unfairness in the trial process.

 

246

Pattenden, “Prosecution Appeals Against Judges' Rulings” [2000] Crim LR 971, 981.

 

247

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.1.8. It is, perhaps, arguable that the availability of a prosecution appeal could provide a further advantage to the defence in that it could result in a somewhat greater number of finely balanced trial decisions being made in favour of the defence at first instance. It may be speculated that under the current law, all things being equal, a trial judge may sometimes be influenced, consciously or sub-consciously, to rule in favour of the prosecution secure in the knowledge that, if wrong, the decision may be appealed by the defence. In contrast, a decision in favour of the defence is final. Ironically, the availability of prosecution appeals would remove this incentive to rule in favour of the prosecution. However, it is likely that, if judges are influenced at all, they would be influenced to err on the side of the defence, perhaps secure in the knowledge that their decision would be beyond challenge (other than the rare cases where s.34 of the 1967 Act can be invoked). This latter view is suggested by Auld LJ, A Review of the Criminal Courts of England and Wales (2001) at para.12.64.

 

248

Pattenden, “Prosecution Appeals Against Judges' Rulings” [2000] Crim LR 971, 980.

 

249

It may be observed that, commencing with the Supreme Court decision of O'Shea in 1982 and concluding with the enactment of s.11 of the Criminal Procedure Act, 1993, there were four prosecution appeals to the Supreme Court concerning directed acquittals: The People (Director of Public Prosecutions) v O'Shea [1982] IR 384; The People (Director of Public Prosecutions) v Quilligan (No.1) [1986] IR 495 and (No.2) [1989] IR 46; The People (Director of Public Prosecutions) v Byrne [1987] IR 363; Director of Public Prosecutions v Healy [1990] ILRM 313): see Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.14. For a discussion of the likely frequency of use of a broad prosecution right of appeal in England and Wales, Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.7.4 – 7.11.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=45

 

“Although the right would be rarely exercised, the occasions on which it would be used would be significant – affecting the conduct of important cases or the decision of important points of law. The very existence of the right will, we believe, improve the quality of judicial rulings at trials and thereby keep its use to a minimum.”250

2.18

Indeed, an examination of cases arising under the current English without prejudice prosecution avenue of appeal (the Attorney General's Reference Scheme) illustrates that references are relatively infrequent but that many of the judgments have had an enduring impact on English criminal law jurisprudence.251 Similarly, the New Zealand Court of Appeal is not flooded with appeals under the with prejudice prosecution appeal scheme in operation in that jurisdiction.252 In contrast, the Canadian appellate courts deal with a much greater volume of prosecution appeals, although this reflects, perhaps, the greater number of appellate courts needed to serve the various provinces, and possibly a more appeal orientated legal culture.253

2.19

It has been said that the existence of a prosecution right of appeal, even if only sparingly used, could lead to a significant and beneficial change in the culture and practice of the criminal courts.254 This is of particular significance to Ireland given the criticisms raised regarding the dearth of criminal law appellate jurisprudence.255 More fundamentally, however, it may be argued that it is a cardinal principle in any legal system of developing case law, with significance far beyond the particular case, that there should be an appropriate opportunity to correct suspected mistakes by appeal, and especially that decisions with potentially serious long-term effects should be dealt with and considered in the calm and deliberate atmosphere of the appellate courts.


250

The Crown Prosecution Service of England and Wales made this submission to the Law Commission of England and Wales: Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.11. The South African Law Commission were also unconvinced that prosecution appeal rights should be restricted on the grounds that they would be used infrequently: South African Law Commission, Third Interim Report on Simplification of Criminal Procedure (The Right of the Director of Public Prosecutions to Appeal on Questions of Fact) (Project 73, 3rd Interim Report, 2000) at paras.5.22 and 5.24.

 

251

See para.1.47 above and Appendix 1.

 

252

See para.1.67 above and Appendix 3.

 

253

See para.1.59 above and Appendix 2.

 

254

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.1.8.

 

255

For discussion, see McAuley & McCutcheon, Criminal Liability (1st ed., Round Hall Sweet & Maxwell, 2000) at vii-xii.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=46

 

CHAPTER THREE: KEY VARIABLES AFFECTING THE AMBIT OF PROSECUTION APPEALS

3.001

This chapter examines in greater depth the key variables which determine the ambit of prosecution appeals, namely:



(a)

 

Whether an appeal is 'with prejudice' or 'without prejudice' to any acquittal or ruling in favour of the accused;

 



(b)

 

Whether an appeal may be brought only on questions of law or also questions of fact;

 



(c)

 

Which trial rulings may be subject to appeal.

3.002

The distinction between with prejudice and without prejudice appeals reflects an underlying policy choice as to the purpose of prosecution appeals. As discussed at paragraph 10 above, a without prejudice appeal is one in which the appellate court has no power to quash the acquittal or other decision favourable to the accused, and is brought for the purposes of clarifying the law for future cases. A with prejudice appeal is one in which the appellate court has the power to overturn the trial decision, and is brought primarily for the purpose of achieving a correct result in the particular case appealed, although any correction of a erroneous ruling will also benefit future cases.

3.003

Similarly, policy choices will influence whether an appeal model is restricted to questions of law or whether it will also allow questions of mixed fact and law or even fact alone. Those who believe that the role of an appellate court is restricted to overseeing that the law is correctly applied at trial will be anxious that prosecution appeals do not encroach on questions of fact. After all, a trial court and jury are normally in a better position than an appellate court to determine questions of fact. However, those who believe that the appellate court has an overarching duty to ensure that 'justice' is achieved in trial courts will advocate a broader right of appeal including questions of fact.

3.004

In any particular trial proceedings, there may be a multitude of decisions that the prosecution may wish to challenge which may arise either pre-trial, during trial, or even at the stage of jury acquittal. The broadest prosecution appeal model would permit appeals against all such decisions. However, achieving a balance between the competing interests for and against prosecution appeals may require compromise such that only limited categories of decision are appealable. For the purposes of this Consultation Paper, the Commission has chosen a tripartite categorisation of the various decisions that may arise during criminal proceedings which are unfavourable to the prosecution:256


256

The Law Commission of England and Wales draws a similar distinction between terminating (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=47

 



(a)

 

'Terminating' rulings, which are those which bring about the premature termination of a criminal proceeding;

 



(b)

 

'Non-terminating' rulings, which are those which permit the prosecution to continue, albeit with a weakened case;

 



(c)

 

Jury acquittals, excluding acquittals returned by the jury on the instruction of the trial judge (directed acquittals).

3.005

The ambit of a prosecution avenue of appeal will be determined by whether it is with prejudice or without prejudice, whether it encompasses only questions of law or also of fact, as well as by categories of ruling which are deemed to be subject to appeal.

A. 'Without Prejudice' and 'With Prejudice' Reform Options

(a) 'Without Prejudice' Appeals

3.006

One option for reform would provide for an expanded without prejudice avenue of appeal by broadening the ambit of appeals allowed pursuant to section 34 of the 1967 Act. The expanded avenue of appeal could allow without prejudice appeals on questions of law arising not only from directed verdicts, but also from other terminating rulings, such as pre-trial rulings and non-terminating rulings, including erroneous directions to the jury during the trial judge's summing up.

3.007

An example of a broad without prejudice avenue of appeal on a point of law is the Attorney General's Reference Scheme in operation in England and Wales.257 Under that scheme, the Attorney General may refer to the Court of Appeal a point of law arising out of a trial on indictment that resulted in an acquittal. The opinion of the court does not affect the acquittal of the defendant in any way.

3.008

A without prejudice appeal option would address many of the fairness-based arguments levelled against prosecution appeals. Compared to with prejudice appeals, without prejudice appeals are unlikely to be perceived as being as oppressive to acquitted persons. As the acquittal would be immune from its effects, arguably there would be little compulsion upon an acquitted person to attend the appeal. Hence, any acquitted person who chose not to be heard would be unlikely to suffer any financial burden in terms of legal costs. Furthermore, the acquitted person would suffer little prejudice as a result of the delay in the resolution of the proceedings given that there could be no retrial ordered.

3.009

However, some acquitted persons might consider that it is unfair to have the basis of their acquittals called into question during a without prejudice prosecution appeal. Even though their acquittals are legally unaffected by such


256

(cont'd) and non-terminating rulings. However, the Law Commission ascribes different meanings to the terms, as discussed at para.3.065 below.

 

257

See paras.1.46-1.50 above.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=48

 

appeals, should the appellate court overrule the legal basis for the acquittals the public could perceive the acquittals as 'hollow', that is, based on a mere legal technicality. Yet, the acquitted persons would have no further avenue to clear their name.258 One way of alleviating this potential difficulty could be to allow acquitted persons the option of consenting to a retrial, although in reality one would expect very few voluntarily to place themselves back in jeopardy of conviction.

3.010

Perhaps a stronger objection to a broader without prejudice appeal model would be that it would retain a degree of artificiality, which has already been identified as a defect in the current scheme provided for by section 34 of the 1967 Act. The Committee on Court Practice and Procedure advised against without prejudice appeals on the following basis:

“It might be thought to be the ideal compromise between preserving the traditionally sacrosanct nature of an acquittal, while ensuring that the Supreme Court is given the opportunity of pronouncing on points of law, which are often of great public importance. Nevertheless, this form of appeal has the disadvantage that the Court is pronouncing on what is, in effect, a moot point and thus tends to lack that force of urgency and reality that is so desirable in judicial proceedings.”259

3.011

In a similar way, the United States federal courts and the majority of state courts decline to render 'advisory' opinions, that is, judgments in moot appeals where the doctrine of double jeopardy bars the ordering of retrials.260 It is argued that a person whose acquittal cannot be disturbed on appeal is unlikely to provide vigorous opposition to an appeal, and even the appointment of amici curiae may not ensure adequate debate of the issues:

“It will be difficult for even the most competent legal counsel to be an effective and zealous advocate for a phantom appellee. A priori, the decision of the appellate court will not be the product of the adversial process, the bedrock of jurisprudence, but rather will merely reflect the results of an abstract legal debate.”261


258

The case of the acquitted person may seem indistinguishable from the case where a charge is laid but subsequently withdrawn by the prosecution. In both instances the person is deemed innocent in the eyes of the law, but in neither would they have the opportunity to clear their name in open court. However, the person against whom the charge is withdrawn can point to the fact that the prosecution has made a decision not to proceed, implying that a conviction would not be proper against that person based on the available information (although in reality the prosecution may have chosen not to prosecute on broader policy grounds; see, Director of Public Prosecutions, Statement of General Guidelines for Prosecutors (2001) at Chap.4). The person whose acquittal has been undermined by the appellate court can point to no such decision either by the court or the prosecution, and therefore, other than the undermined acquittal, there is no official recognition of a lack of guilt. On the contrary, the appellate judgment that the acquittal was flawed will imply that, but for a statutory prohibition on retrials from prosecution appeals, the acquitted person would still have a case to answer.

 

259

Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.11. (Emphasis added).

 

260

See para.1.63 above.

 

261

Shaw, “Prosecution Appeals Taken Mid-trial and Following Acquittal: Changing the Trial and (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=49

 

3.012

On the other hand, a without prejudice appeal would not be truly abstract, such as a reference to the Supreme Court pursuant to Article 26 of the Constitution, given that the appeal would be based on a concrete set of facts. Furthermore, whilst from an acquitted person's point of view little turns on the appeal, the acquitted person's counsel or counsel appointed by the court might be expected to contribute proficiently and conscientiously to the legal debate for reasons of professional reputation and responsibility.

(b) 'With Prejudice' Appeals

3.013

A more radical option for reform, although relatively common in various foreign jurisdictions,262 would be to provide for a with prejudice prosecution avenue of appeal whereby a successful appeal would result in the acquittal being quashed and, where appropriate, a retrial being ordered.

3.014

The primary justification for with prejudice appeals is that they allow appellate courts to overturn acquittals for the purposes of achieving justice in the actual case on appeal, rather than merely correcting an error of law in the abstract whilst permitting a potentially unjust verdict to stand.263

3.015

However, a with prejudice right of appeal is potentially more oppressive to an acquitted person than a without prejudice right of appeal. Such an appeal may be oppressive not only in terms of delay and financial burden, but more fundamentally a retrial would re-expose an acquitted person to the risk of conviction.

3.016

A question arises, therefore, whether with prejudice appeals would infringe against the principle protecting an accused from 'double jeopardy'. This principle prohibits the system from forcing a person to undergo more than one trial for the same offence, and, more particularly, the principle of autrefois acquit prohibits the retrial of a person for an offence of which that person has already been acquitted.


261

(cont'd) Review of Criminal Cases in Ohio” (1996) 22 Ohio NUL Rev 729, 750. Similarly, the Supreme Court of Victoria, in Director of Public Prosecutions' Reference (No.1 of 1984) [1984] VR 727, observed:

 

“It seems likely that a respondent will often have no legal interest in the Court's expression of opinion on a point of law raised under the section and the Court may accordingly be placed in the position of giving advisory opinions after hearing argument on one side only. Such a situation would not be wholly remedied by hearing argument from counsel as amicus curiae as appears sometimes to be done in England. These considerations suggest that the power granted by [Victoria's without prejudice prosecution appeal provision] should be used sparingly.”

 

262

For example, Canada, New Zealand, the Australian States of Tasmania and Western Australia, South Africa, the various Civil Law jurisdictions and, to a limited extent, the United States of America. See paras.1.57-1.88 above.

 

263

“The policy basis of such a right would be the importance to the community of ensuring that serious criminal matters are dealt with fully according to law, and that the full process of criminal justice is not impeded by 'technical' legal irregularities.” New South Wales Law Reform Commission, Directed Verdicts of Acquittal: Discussion Paper (DP 37, 1995) at para.4.1.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=50

 

3.017

It is debatable whether the double jeopardy principle is applicable to prosecution appeals. For example, the Law Commission of England and Wales has taken the view that retrials following successful prosecution appeals do not offend against the principle of double jeopardy at all as acquittals are not 'final' until rights of appeal have been exhausted or lost.264 In doing so, the Law Commission drew support from the approach of the European Convention on Human Rights.265 In contrast, the United States federal courts enlist the double jeopardy principle to restrict prosecution appeals to a limited range of circumstances.266

3.018

It is unclear whether an acquitted person in this jurisdiction would be constitutionally protected from retrial following a successful prosecution appeal. As discussed earlier,267 a majority of the Supreme Court, in The People (Director of Public Prosecutions) v O'Shea,268 recognised a prosecution right of appeal from the Central Criminal Court.269 However, subsequently in The People (Director of Public Prosecutions) v Quilligan (No.2),270 a majority of the Supreme Court declined to order a retrial following a successful prosecution appeal.271 Whilst the


264

Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at paras.1.8-1.9; Law Commission of England and Wales, Double Jeopardy, A Consultation Paper (CP 156, 1999) at paras.3.17-3.18.

 

265

Article 4 of the 7th Protocol, which provides that the double jeopardy requirement “shall not prevent the reopening of a case in accordance with the law and penal procedure of the state concerned,... if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.” The adoption of this approach by the Law Commission of England and Wales has been the subject of criticism: “Whilst this may be the way the double jeopardy principle is understood in Strasbourg, and in those Continental countries where prosecution appeals are an everyday occurrence, it is not the way that the principle has hitherto been regarded in the common law world”: Pattenden, “Prosecution Appeals Against Judges' Rulings” [2000] Crim L R 971, 979.

 

266

Once acquitted, a successful prosecution appeal cannot result in a retrial unless the acquitted person “deliberately [chose] to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offence of which he is accused”: United States v Scott 437 US 82, 98-99 (1978, United States Supreme Court). In that case the prosecution had appealed against a trial ruling dismissing two counts of a three-count indictment alleging distribution of narcotics because of prejudice to the accused's case from pre-trial delay: see for discussion, Zavin, “The Right to Appointed Counsel on Prosecution Appeals: Hard Realities and Theoretical Perspectives” (1999) 25 NYU Rev L & Soc Change 271, 277-8. For further discussion, see paras.1.60-1.64 above.

 

267

See paras.1.38-1.42 above.

 

268

[1982] IR 384. The decision in O'Shea has been discussed recently in the Supreme Court judgment, Considine v Shannon Regional Fisheries Board [1998] 1 ILRM 11. See fn.102 above.

 

269

O'Higgins CJ and Walsh J held that Article 34 of the Constitution provided for a prosecution right of appeal, and (obiter) that the Court had jurisdiction to order a retrial; Hederman J agreed there was a right of appeal, but reserved his opinion as to whether there was a power to order a retrial. Finlay P and Henchy J took the view that there was no right of appeal.

 

270

[1989] IR 46.

 

271

Henchy and Griffin JJ held that the Court had neither inherent jurisdiction nor delegated power pursuant to the Supreme Court Rules to order a retrial; Walsh and McCarthy JJ held that there was such jurisdiction; Hederman J reserved his opinion, but held that in this particular case there should be no retrial ordered.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=51

 

third member of the majority in Quilligan restricted his decision to the particular facts of the case, two of the three majority judges sought to restrict the remedy available through the constitutional avenue of appeal to quashing the acquittal.272

3.019

Whilst the Court delivered no definitive answer as to whether prosecution appeals could result in retrial, and whilst this avenue of appeal has since been removed by the legislature, O'Shea and Quilligan remain helpful by way of illustrating the possible judicial responses in the event that any new with prejudice right of appeal were constitutionally challenged.

3.020

Henchy J, who took what may be regarded as the pro-acquitted-person side in each of the cases, questioned the constitutionality of any legislation that purported to confer jurisdiction to order a retrial following an acquittal on indictment:

“... if it applied to all trials on indictment, its constitutionality might also be open to question on grounds such as that it would not accord with fundamental fairness or that it would not be compatible with what is inherent in the constitutional guarantee of trial by jury.”273

“Even if a retrial could be ordered, the practical consequences for the accused would be indefensible discrimination, unfairness and harassment. Whereas a retrial ordered in the case of an appeal from conviction is a risk that is voluntarily assumed by the convicted person when he appeals, a retrial ordered in the case of an acquittal would impose willy-nilly on the acquitted person the worry and the possibly crushing expense of a retrial in which, because he would have shown his hand in the first trial, he and his witnesses could be cross-examined out of the transcript of the first trial, and the prosecution could augment the case made against him at the first trial by giving fresh evidence.”274


272

As discussed at fn.113 above, it may be argued that the constitutional avenue of appeal recognised by the Supreme Court is a hybrid of the without prejudice and with prejudice appeal models (namely, the Supreme Court has jurisdiction to quash an acquittal but not to order a retrial), described earlier as a 'quasi' with prejudice avenue of appeal. Arguably, this model is unlikely to satisfy either the prosecution or the defence. On one hand, it may be argued, as did Walsh J in Quilligan, that a power to order a retrial is a natural corollary to a prosecution right of appeal: “The jurisdiction to set aside erroneous decision in law must necessarily carry with it the necessary competence to ensure that the interrupted proceedings are brought to a conclusion in accordance with the law”: [1989] IR 46, 50. On the other hand, one might expect that some acquitted persons would be dissatisfied if they were to be stripped of their acquittals yet were to be denied the opportunity to re-establish their innocence.

 

273

The People (Director of Public Prosecutions) v Quilligan (No.2) [1989] IR 46, 56, Griffin J concurring.

 

274

The People v O'Shea [1982] IR 384, 441-442. Henchy J added, perhaps more controversially: “However, even if the evidence at the second trial did not differ essentially from that given at the first, the jury could (or perhaps should) be told by the trial judge that in the opinion of the Supreme Court they must convict. A verdict of guilty given in those circumstances could not be said to be in any real sense the verdict of an independent jury acting under the guidance of an independent judge.”

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=52

 

3.021

The importance of these arguments are that they are not restricted to the particular constitutional avenue of appeal in issue in that case but, if accepted, would apply equally to any new with prejudice prosecution right of appeal.

3.022

On the other side of the argument, O'Higgins CJ disputed the extent of the impact of a retrial on an acquitted person:

“It has been suggested that all this imposes intolerable burdens on those facing criminal charges in the Central Criminal Court, and that the personal rights of accused persons may in some way be breached. I cannot see any substance in such suggestions. We have advanced very far from the days when the lonely prisoner, with inadequate means, faced at his trial the full resources of the State which accused him. To-day such a prisoner has access, at the expense of the State, not only to the finest professional assistance but also to all other scientific and technical aids required for his defence. The hardship which he faces is the charge and the trial.”275

3.023

Those members of the Court who advocated a power to order a retrial were of the view that a retrial would not breach the double jeopardy principle, at least in relation to an appeal from a directed acquittal. They argued that, given that a directed verdict is not the considered verdict of the jury, an acquitted person would never have been in jeopardy:

“It has also been submitted that it would be inherently unfair to the respondents, having regard to the fact that they have already been subject to a trial 'in accordance with law'. In this case the trial was not in accordance with law. The trial was stopped by reason of an erroneous interpretation of the law by the trial judge. The trial did not then and has never yet proceeded to a verdict considered and chosen by the jury.”276

3.024

One could also argue that a retrial following an acquittal creates little more prejudice to an accused than the existing power to order a retrial where the jury has been discharged because, for example, it is unable to reach a verdict.277 It has been pointed out that this example, and others where retrials are permitted (such as a retrial after a successful defence appeal against conviction), demonstrate that the


275

The People v O'Shea [1982] IR 384, 405.

 

276

The People (Director of Public Prosecutions) v Quilligan (No.2) [1989] IR 46, 52, per Walsh J. Similarly, O'Higgins CJ, in The People v O'Shea [1982] IR 384, 407, did not accept that the retrial of a person acquitted by way of a directed verdict would be contrary to the doctrine of autrefois acquit: “The significant feature of a [directed acquittal] is that the acquittal results in no trial because it is not in fact the verdict of the jury. It follows, therefore, that the person accused has not been in jeopardy.” However, Ryan & Magee, The Irish Criminal Process (Mercier Press, 1983) at 439, have questioned this dicta, and stated that, “it is difficult to see how the accused was not in jeopardy from the time that he was put in charge of the jury on a valid indictment.”

 

277

However, it should be noted that aside from any psychological harm caused by the quashing of the acquittal, the acquitted person will, in addition to the retrial, have also undergone the appeal process which will cause additional delay compared with the case of the accused who undergoes a retrial because the jury is discharged.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=53

 

public interest in the fair administration of justice can outweigh the accused's interest in limiting their personal expense and uncertainty.278

3.025

However, notwithstanding these arguments, and the fact that the Committee on Court Practice and Procedure tentatively concluded to the contrary,279 there is at least some judicial support for the proposition that any new statutory power to order a retrial following a successful prosecution appeal would be constitutionally barred.

B. Appeals on Questions of Law or Fact or Mixed Law and Fact

3.026

One of the factors affecting the ambit of a prosecution avenue of appeal is whether the prosecution is restricted to raising questions of law or whether it may also raise questions of mixed law and fact or questions of fact alone. Typically prosecution appeals in most jurisdictions, including Ireland,280 are restricted to questions of law.281 The purpose of this restriction would appear to be to prevent the appellate courts from encroaching on the factual findings of the trial court which enjoys the advantage, not shared by the appellate court, of observing the demeanour of witnesses.

3.027

However, the boundary between questions of law and questions of fact is often difficult to discern. These terms are malleable and lend themselves to a variety of interpretations. As discussed below, the position is far from clear either in this jurisdiction or in other common law countries.

(a) Ireland

3.028

The distinction between questions of law and fact is found in section 34 of the 1967 Act. This provision restricts without prejudice prosecution appeals to questions of law. However, given the infrequent use of this provision there appears to be no jurisprudence as to the meaning of the term “a question of law”. In any event, the distinction in this provision between questions of law and fact is unlikely to assume great importance given that without prejudice appeals are by nature only concerned with correcting questions of law, and factual issues are largely irrelevant.

3.029

There is, however, a body of case-law interpreting the term “a question of law” which is a requirement for appeals by way of case stated from the District


278

Shapiro, “Reviewing the Unreviewable Judge: Federal Prosecution Appeals of Mid-Trial Evidentiary Rulings” (1990) 99 Yale LJ 905, 917-8.

 

279

The Committee acknowledged that “this matter cannot be said to be free from doubt”: Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.17.

 

280

Appeals pursuant to s.34 of the 1967 Act are restricted to questions of law. See paras.1.29-1.33 above.

 

281

See the law relating to England, Canada, New Zealand, United States of America, Australia, South Africa and the various Civil Law jurisdictions at paras.1.46-1.90 above.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=54

 

Court to the High Court.282 This appeal avenue is open to both the prosecution and defence and is brought on a with prejudice basis. The case-law, therefore, may be instructive as to how the courts might interpret any new prosecution avenue of appeal from cases brought on indictment, particularly if appeals were to be brought on a with prejudice basis.

3.030

The approach taken by the appellate courts has varied as to the meaning of “a question of law” in relation to appeals from District Court decisions. On one hand, the courts have indicated that factual findings are conclusive. For example, in Donaghy v Walsh,283 Gibson J stated:

“On a case stated, jurisdiction is confined to questions of law, and findings of fact are conclusive, unless it appears that there was no evidence to support them.”284

3.031

The Court indicated that a high standard must be reached in order to justify any interference with the lower court's finding of fact, namely that the finding was “impossible” or “irrational or unsupported by the evidence”.285

3.032

A similar approach was adopted in Director of Public Prosecutions v Nangle,286 where the High Court declined to interfere with the factual finding despite the Court's view that there was “a clear air of implausibility” about the account accepted by the District Judge.287 The District Judge in that case had accepted that the defendant's evidence had raised a reasonable doubt and dismissed the charge of assault occasioning actual bodily harm. Acknowledging that the District Judge had the opportunity to hear the witnesses, the High Court declined to overturn the decision as that would “constitute an unwarranted interference by me in a proceeding which is exclusively confined to correcting errors of law by an inferior court”.288

3.033

On the other hand, in Murphy v Bayliss,289 the Supreme Court indicated that “questions raising a mixture of fact and law [are] properly the subject of a case stated”.290


282

For a useful summary of this case law, see Woods, District Court Practice and Procedure in Criminal Cases (1994, James V Woods) at 468.

 

283

[1914] 2 IR 261.

 

284

Donaghy v Walsh [1914] 2 IR 261, 273.

 

285

Ibid. The finding of fact in this case was that an automatic gaming machine operated by the defendant was a game of chance, and hence illegal. The King's Bench declined to interfere.

 

286

[1984] ILRM 171.

 

287

Ibid. at 173.

 

288

Ibid.

 

289

Supreme Court, 22 July 1976.

 

290

Ibid. at 4. The appellant challenged a decision of a District Judge to decline to grant an extradition order on the grounds that he was not satisfied as to the validity of the documents supporting the application. The issue before the Supreme Court was whether the appellant was entitled to challenge the District Judge's grounds for refusing the order. The Supreme Court (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=55

 

3.034

Similarly, in The State (Turley) v O'Connor,291 the Supreme Court overturned a conviction in the District Court notwithstanding the District Judge's assertion that he was deciding the case on an issue of fact. In defence of a charge of using a place for public dancing without a licence, the defendant had claimed that his premises did not require a licence as it was a tennis club. However, the District Judge had held that the club was a “masquerade” intended to avoid the licence requirements and found the defendant guilty. The District Judge also declined to state a case for the High Court on the grounds that the decision was one of fact not law. When the matter eventually reached the Supreme Court, it held that the District Judge was wrong to refuse to state a case given that “the question whether there is sufficient evidence in law to support a conviction is not a question of fact but a question of law.”292

3.035

In Director of Public Prosecutions v Morrissey,293 the High Court quashed a District Court acquittal on a charge of drink driving. The District Judge had ruled that the prosecution had not proved beyond a reasonable doubt that the defendant was in a public place. Acknowledging the limits on its jurisdiction as stated in Director of Public Prosecutions v Nangle,294 the High Court nevertheless overturned the finding on the basis that the prosecution had established a prima facie case and therefore the evidential burden shifted to the defendant if he wished to cast a doubt on an element of the prosecution case.

3.036

In Crowley and Glacken v McVeigh,295 the High Court quashed a District Judge's refusal to grant an extradition order. The District Judge had held that there was a reasonable doubt as to whether the respondent was the person named in the warrants accompanying the application for the extradition order. The District Judge had accepted that the name, address and former address contained in the warrant were those of the respondent. However, the District Judge held that this


290

(cont'd) held that the District Judge's first ground, namely that the phrasing of the charge in the warrant was too ambiguous, was a question of law and hence appealable. The Supreme Court held the remaining grounds were also appealable, notwithstanding that they raised questions of mixed fact and law, given that they raised whether there had been sufficient compliance with the requirements of the Extradition Act. Those remaining grounds of the District Judge were: (a) a finding that one of the documents appeared to be removed from another document casting doubt on its association with the exhibited warrant; (b) a finding that there was reasonable doubt that the certificate may not have related to the warrant given that the certificate was undated and not so marked; (c) a finding that the description of the offence in the certificate was ambiguous and insufficient; (d) a finding that there was doubt as to which endorsement on the warrant was relied upon to arrest the respondent.

 

291

[1968] IR 245.

 

292

The State (Turley) v O'Connor [1968] IR 245, 251, per Ó Dálaigh CJ. The Supreme Court agreed with the statement of the High Court that a number of questions of law would arise in the course of considering the sufficiency of the evidence, including the circumstances in which a purported tennis club ceases to be a legitimate club, and whether dancing restricted to members of a club (including one or more non-members) is public dancing.

 

293

High Court (O'Higgins J), 15 December 1998.

 

294

[1984] ILRM 171.

 

295

[1989] IR 73.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=56

 

information was insufficient given that: (a) no English police officer or official had given evidence identifying the respondent; (b) there was no evidence excluding the possibility that another person of the same name had also lived at the respondent's former address; (c) the respondent was in custody for 16 of the 26 months during which the offences alleged in the warrant were said to have been committed by the respondent and others. Quashing the refusal, the High Court held that it was entitled to draw a different inference from the undisputed facts and formed the view that there was no doubt that the respondent was the person named in the warrant. The High Court distinguished this case from Director of Public Prosecutions v Nangle296 on the basis that the decision of the District Judge in the Nangle case was based on conflicting evidence, whereas in this case the evidence was undisputed.297

3.037

In summary, this selection of case-law in relation to appeals from District Court decisions illustrates that, whilst generally the concept of “a question of law” has been interpreted narrowly, there are examples where appellate courts have been prepared to consider mixed questions of law and fact as falling within its ambit.

3.038

The question arises as to whether the courts would adopt a similar interpretation of “a question of law” in the context of prosecution appeals from cases brought on indictment. For example, would the appellate courts be prepared to interfere with the exercise of a trial judge's discretion, such as occurred in Crowley and Glacken v McVeigh?298 Would the appellate courts be willing to entertain a prosecution challenge to the reasonableness of a jury acquittal? An examination of how other common law jurisdictions approach this issue presents a confusing picture.

(b) Canada

3.039

The with prejudice prosecution avenue of appeal in Canada is limited to “any ground that involves a question of law alone”.299 The Supreme Court of Canada has drawn a distinction between 'questions of law', which the prosecution is permitted to raise, and 'questions of fact or of mixed fact and law', which are prohibited.300 The restriction to questions of law has been a common reason given by the appellate courts for declining prosecution appeals.301 For example, in R v J


296

[1984] ILRM 171.

 

297

Elsewhere, the appellate courts have been less reluctant to review the inferences which a trial judge draws from proven facts, as opposed to the findings of fact themselves: see, People (Director of Public Prosecutions) v Foley Court of Criminal Appeal (Budd J), 18 July 1994. For further discussion, see fn.383 below.

 

298

[1989] IR 73.

 

299

Section 676(1)(a) of the Canadian Criminal Code.

 

300

R v Biniaris [2001] 1 SCR 381, 401.

 

301

For example: R v Blazic 2001 Alta D Criminal J 242; R v Cabral (JM) (2001) 153 Mon R (2d) 115; R v S(G) (2000) 47 WCB (2d) 561; R v Sparks (R)(2000) 188 NSR (2d) 170. See Appendix 2.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=57

 

(GP),302 the prosecution challenged the manner in which the trial judge had used counselling records to assess the complainant's credibility in a sexual abuse case. The appellate Court rejected the submission on the ground that it raised a question of mixed law and fact.

3.040

However, the courts have not always found it easy to draw a distinction between questions of law and fact. Whilst generally it may be said that an assessment of the reliability of witnesses and the inferences that should be drawn from their evidence are not questions of law,303 the guidelines developed by the appellate courts are relatively complex.304

3.041

Interestingly, in its recent decision of R v Biniaris,305 the Supreme Court conceded that the reasonableness of a jury conviction is a question of law:

“Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.”306


302

(2001) 151 CCC (3d) 382 (Manitoba Court of Appeal).

 

303

R v DSH & JDN [1994] 2 SCR 392, rev'g (1994) 90 CCC (3d) 564 (BCCA).

 

304

In R v Morin [1992] 3 SCR 286, the Supreme Court held that there are three circumstances in which an appellate court may interfere with a trial court's decisions without encroaching on the trial court's findings of fact, namely:

 

“If a trial judge finds all the facts necessary to reach a conclusion in law and in order to reach that conclusion the facts can simply be accepted as found, a Court of Appeal can disagree with the conclusion reached without trespassing on the fact-finding function of the trial judge. The disagreement is with respect to the law and not the facts nor inferences to be drawn from the facts. The same reasoning applies if the facts are accepted or not in dispute. In this situation, the court can arrive at the correct conclusion in law without ordering a new trial because factual issues have been settled.”

 

 

“A trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect.”

 

 

“Failure to appreciate the evidence cannot amount to an error of law unless the failure is based on a misapprehension of some legal principle.”

 

305

[2000] 1 SCR 381. The accused had successfully appealed against conviction for second degree murder on the grounds that the verdict was unreasonable, and the Court of Appeal of British Columbia had substituted a conviction for manslaughter. The prosecution sought to appeal against the Court of Appeal's ruling to the Supreme Court. However, whilst the defence could appeal to the Court of Appeal on questions of law, fact and mixed fact and law (s.675(1) of the Canadian Criminal Code), both the defence and prosecution were confined to raising questions of law in any further appeal to the Supreme Court (ss.691 and 693 of the Code). The question arose, therefore, whether the Court of Appeal's finding as to the reasonableness of the conviction was a decision on a question of law so as to allow the prosecution to appeal.

 

306

Ibid. at 398. However, the Supreme Court acknowledged, at 397, that “[o]ne can plausibly maintain, on close scrutiny of any decision under review, that the conclusion that a verdict was (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=58

 

3.042

The question, therefore, arose whether prosecution appeals challenging the reasonableness of an acquittal would likewise raise questions of law. Following the same reasoning as for defence appeals, the Supreme Court acknowledged that such prosecution appeals would indeed raise questions of law. However, the Supreme Court was anxious to uphold the well-established prohibition on prosecution challenges to the reasonableness of jury acquittals. Hence, the Court was required to turn to policy grounds to distinguish prosecution appeals against acquittals from defence appeals against convictions.307

(c) Australia

3.043

The various with prejudice and without prejudice prosecution avenues available in the States of Australia are generally limited to questions of law,308 and the Australian courts have tended to interpret this restriction strictly.

3.044

Hence, in Williams v R,309 the Australian High Court held that the exercise of judicial discretion was not appealable as a question of law under the Tasmanian with prejudice prosecution avenue of appeal. The prosecution in that case had appealed against a trial judge's decision to exclude confession evidence. The trial judge had ruled that the confession had been obtained when the accused was illegally detained and therefore should be excluded on the basis of fairness. The High Court held that the decision was unappealable under the relevant with prejudice prosecution appeal provisions, which were limited to “questions of law alone”. The trial judge's decision involved not only a ruling as to whether the accused was illegally detained, but also an exercise of the judge's discretion as to whether it was fair to admit the evidence which involved an appreciation of the facts. It had been submitted that a question of law arose “where [the conclusion of mixed fact and law] proceeds from a misdirection in law.”310 However, Gibbs CJ cited the following observation with approval:


306

(cont'd) unreasonable was reached sometimes mostly as a matter of law, in other cases predominantly as a matter of factual assessment”. Nevertheless, the Court considered that it would be wrong to bar prosecution (and defence) appeals to the Supreme Court at the jurisdictional threshold stage and consequently held that the reasonableness of a verdict was a “question of law”.

 

307

Ibid. at 402-3. The Court held that the legislation was more consistent with the absence of a prosecution right of appeal against unreasonable verdicts (although the legislation did not expressly prohibit such appeals). However, the primary reason for prohibiting such appeals was that “as a matter of law, the concept of 'unreasonable acquittal' is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt... Since, different policy considerations apply in providing the Crown with a right of appeal against acquittals, it seems to me that there is no principle of parity of appellate access in the criminal process that must inform our interpretation of this issue.”

 

308

Although the Western Australian provision does not expressly limit with prejudice prosecution appeals to questions of law, Pigeon J observed, in the Supreme Court of Western Australian decision of R v Punevski [2001] WASCA 121, para.40, that the statutory context of the provision “would indicate that the section contemplates a direction in law.”

 

309

Williams v R (1986) 161 CLR 278, 301-302, per Mason and Brennan JJ, interpreting s.401(2) of the Tasmanian Criminal Code Act, 1924 which restricts prosecution appeals to questions of law.

 

310

This interpretation had been favoured by the Tasmanian Court of Criminal Appeal in R v Jessop (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=59

 

“[T]here would seem to be great difficulties in the way of entertaining an appeal by the Crown against the exercise of a judicial discretion where the question involved is not so much the existence of a discretion but the question of its exercise in relation to the facts of a particular case.”311

3.045

A similar approach was adopted in relation to without prejudice prosecution avenues of appeal. In Director of Public Prosecutions v G,312 the Federal Court of Australia observed:

“Where what is sought to be challenged is the manner of exercise of the trial judge's discretion, this does not ordinarily raise [a point of law]... Consequently, the question whether a trial judge properly excluded evidence of statements of a confessional nature where the sole impediment to their reception was that the statements were made whilst the accused was in unlawful custody was held not to be a question which could be referred under [the Victorian without prejudice prosecution appeal provision]”.313

3.046

However, as the Supreme Court of Victoria observed, in Director of Public Prosecutions Reference (No 1 of 1984):314

“That is not to say that in some circumstances it may not be possible to distil a point of law which has arisen in the exercise of a discretion, for example the formulation of the correct legal test upon which the discretion should be exercised.”

(d) New Zealand

3.047

The with prejudice prosecution avenue of appeal in New Zealand is limited to questions of law.315 However, on occasion it would appear that the Court of Appeal has been prepared to rule on questions of mixed law and fact.


310

(cont'd) [1974] Tas SR 64, 89, per Nettlefold J.

 

311

Citing an earlier decision of the Tasmanian Court of Criminal Appeal, R v Jenkins (1970) Tas SR 13, 15, per Crisp J.

 

312

[1999] FCA 108. The Federal Court was considering a without prejudice prosecution appeal under s.30A of the Federal Court of Australia Act, 1976. The Federal Court ultimately concluded that a point of law did not arise on the grounds that the question posed by the prosecution was hypothetical in that it had not been decided by the trial judge.

 

313

Director of Public Prosecutions v G [1999] FCA 108 (Federal Court of Australia), citing the Supreme Court of Victoria decision in Director of Public Prosecutions Reference (No 1 of 1984) [1984] VR 727, 729. See also, the Supreme Court of Australia Court of Criminal Appeal decision, in Director of Public Prosecutions' Reference (No.1 of 1992) [1992] VR 405, where the prosecution sought to bring a without prejudice appeal against a trial judge's ruling that the prosecution was bound by the particulars it had alleged against the accused prior to trial. On appeal it was held that the ruling was an exercise of the trial judge's discretion and hence did not raise a point of law.

 

314

[1984] VR 727.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=60

 

3.048

For example, in R v Accused (CA 160/99),316 a historical sexual abuse case, the Court of Appeal overturned a trial judge's ruling that the specimen counts against the accused were not sufficiently particularised by reference to the place and date of the alleged offending. On appeal, the Court held that not only was the trial judge's view of the law incorrect, but went on to assess whether the counts were in fact too general. The Court ultimately concluded that the counts were sufficiently particularised and ordered the accused to stand trial.317

(e) The United Kingdom

3.049

Like their New Zealand counterparts, the English courts on occasion seem to have exercised liberally their power to give opinions on points of law under the without prejudice Attorney General's Reference Scheme. For example, in Attorney General's Reference (No. 1 of 1992),318 the question of law posed for the Court of Appeal related to the proper criteria for staying a prosecution on the grounds of delay. The Court of Appeal not only gave guidance as to the relevant criteria, but went as far as to say that the trial judge had exercised his discretion wrongly.319


315

New Zealand Crimes Act, 1961, s.380.

 

316

[1993] 1 NZLR 385.

 

317

See also, R v Sew Hoy [1994] 1 NZLR 257. In that case the Court of Appeal overturned the trial judge's dismissal (on the grounds of impossibility) of charges of conspiracy to defraud. The Court not only held that the trial judge had proceeded on an erroneous view of the law, but went on to order the accused to stand trial on the grounds that "in the particular circumstances set out in the case" the offence was not impossible. See also R v Duncan [1992] 1 NZLR 528 where the Court of Appeal considered whether the trial judge in a sexual abuse case had correctly ruled that evidence of a recent complaint was inadmissible. Not only did the Court set out the relevant criteria to be applied, but it also considered whether the trial judge's conclusion was correct, albeit that the Court concluded that “by a narrow margin” it would not differ.

 

318

[1992] 1 QB 630.

 

319

See also Attorney General's Reference (No. 3 of 2000) where the Court of Appeal, [2001] EWCA Crim 1214, and subsequently the House of Lords, [2001] 1 WLR 2060, ruled not only as to whether the trial judge's statement on the law of entrapment was correct, but also as to whether the trial judge's application of the law to the facts was correct; that is, whether the trial judge was correct to exclude the evidence in question. The Court of Appeal indicated that the evidence should have been admitted, whereas the House of Lords stated that the trial judge was right to exclude the evidence. See also Attorney General's Reference (No. 1 of 1998) (1998) 163 JP 390 where the Court of Appeal ruled that the trial judge had erred in finding that the accused was not “knowingly” concerned in importation of controlled drugs. The Court of Appeal reached a different view of the facts and law and felt able to overrule the trial judge's decision on the basis that he did not deliver a reasoned decision. See also Attorney General's Reference (No. 3 of 1999) [2001] 2 WLR 56 where the House of Lords held that the trial judge erred in finding that the DNA evidence obtained through a tainted procedure was inadmissible as a matter of law. The trial judge also held, in the alternative, that he would have excluded the DNA evidence in his discretion to prevent an abuse of process. Whilst the House of Lords did not rule as to whether the trial judge had wrongly exercised this discretion, the Court did not appear to consider itself lacking jurisdiction to do so. Rather, the Court did not rule on whether the discretion was properly exercised because this question was not part of the reference.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=61

 

3.050

Indeed, Diplock LJ, in the House of Lords decision of Attorney General for Northern Ireland's Reference (No 1 of 1975),320 seemed to indicate that any ruling made by a judge would involve a question of law, and hence would be subject to appeal under the Attorney General's Reference Scheme:321

“I know of no other satisfactory definition of a 'point of law' arising in a criminal case than that it is a question that under this mode of trial would fall to be decided by the judge, not by the jury.”322

3.051

The Privy Council, in the recent decision of Justice Raham Smith v R,323 also acknowledged that, as a general rule, it is an accepted practice of the courts to describe any ruling of a trial judge as one on a question of law, albeit that this description is sometimes a legal fiction. The Privy Council cited the following passage from Salmond on Jurisprudence:

“[In relation to a no-case submission] it is the duty of the judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff; and if he decides that there is not, the case is withdrawn from the jury altogether; yet this is mere matter of fact, undetermined by any authoritative rule of law. By an illogical though convenient usage of speech, any question which is thus within the province of the judge instead of the jury is called a question of law, even though it may be in the proper sense a pure question of fact. It is called a question of law because it is committed to and answered by the authority which normally answers questions of law only.”324

3.052

However, the Privy Council declined to adopt this broad interpretation of the term “a question of law alone” in relation to the Bermudan with prejudice


320

[1977] AC 105 (House of Lords).

 

321

This case was concerned with the Northern Ireland Attorney General's Reference Scheme. However, there is no material difference between the Northern Irish and the English and Welsh provisions.

 

322

Diplock LJ continued:

 

“Apart from questions of admissibility of evidence, it is a function of the judge to decide what are the constituent elements both physical (actus reus) and mental (mens rea) of an offence with which the accused is charged and to instruct the jury accordingly. It is the function of the jury to decide whether each one of those elements has been proved to have been present in the conduct or mind of the accused. This is because the definition of a crime is always a question of law; so where there has been trial by jury it should not be difficult to isolate and identify as a point of law arising in the case a question as to the correctness of the definition of the constituent elements of the offence given by the judge in his summing up to the jury. It has also long been recognised that the question whether upon a trial by jury there is any evidence upon which the jury could convict the accused is a question for the judge and thus one of law. This can be rationalised as a direction by the judge that if every fact unfavourable to the accused of which there is some admissible evidence, however slight, were treated as established, those facts would not satisfy the definition of the offence.”

 

323

[2000] 1 WLR 1644.

 

324

Salmond on Jurisprudence (12th ed., 1966) at 68.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=62

 

prosecution appeal provision it was considering. The prosecution had appealed against a decision of a Bermuda trial judge to direct the acquittal of an accused on a charge of murder. The trial judge had ruled that the accused had no case to answer on the grounds that the prosecution's circumstantial evidence was too weak. On appeal, the Privy Council held that no question of law arose, adopting a strict interpretation of the term, notwithstanding that the trial judge's decision “was perhaps an astonishing one.”

3.053

The Privy Council distinguished Diplock LJ's observations in Attorney General for Northern Ireland's Reference (No 1 of 1975)325 on a number of grounds. First, the Privy Council observed that Diplock LJ's comments did not deal directly with questions of mixed law and fact. Secondly, the Privy Council emphasised the clear statutory language of the Bermudan provision, which was expressed in such a way as to clearly distinguish between “a question of law alone” and a question of mixed fact and law (the latter being a ground of appeal open only to the defence). In contrast, such a clear statutory distinction was not made in relation to the Attorney General's Reference Scheme. Thirdly, the Privy Council noted that, unlike the without prejudice Attorney General's Reference Scheme, the Bermudan provision created a with prejudice appeal scheme and therefore “makes an inroad on the cardinal principle of double jeopardy”. The Privy Council held that such provisions should be interpreted narrowly, relying on the common law rule against prosecution appeals.

3.054

The Privy Council concluded that most no-case submissions, including the one which was the subject of the appeal, were not “questions of law alone”:

“[M]ost no case submissions will simply involve an assessment of the strength of the evidence led by the prosecution. A certain amount of weighing of evidence is unavoidable at this stage because the trial judge has to form a view whether the evidence could potentially produce conviction beyond reasonable doubt”.326

3.055

It is unclear whether the Privy Council would have reached a different view had the appeal provision only permitted without prejudice appeals. However, the fact that it was a with prejudice appeal provision evidently was an important consideration.

(f) Summary

3.056

The comparative analysis conducted demonstrates that prosecution appeals in most jurisdictions are limited to questions of law, but that a variety of interpretations have been given to the term.


325

[1977] AC 105 (House of Lords).

 

326

The Privy Council noted that some no-case submissions would involve questions of law alone. For example, a ruling that a statutory offence contains an ingredient of mens rea where there is no evidence of mens rea.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=63

 

3.057

It may be argued that a more flexible interpretation is appropriate where the appeal provision is on a without prejudice basis. In without prejudice appeals the appellate court can afford to be less concerned about encroaching on the trial court's findings of facts when there can be little practical consequence for the acquitted person, namely, there is no risk of a retrial. A more flexible approach would allow the appellate courts to intervene in a greater number of cases and hence allow greater scope for providing appellate guidance for the benefit of future cases, which is the purpose of without prejudice appeals.

3.058

In contrast, it may be argued that any infringement on the trial court's fact-finding role is inappropriate in the case of with prejudice appeals where the acquitted person's double jeopardy rights are at stake.

3.059

It is unclear what approach the courts in this jurisdiction would adopt to a prosecution appeal provision that is restricted to questions of law. Any new provision would require careful drafting to ensure that the legislative intent as to the ambit of prosecution appeals was clearly stated.

C. Categories of Rulings Subject to Appeal

3.060

As discussed above, there are essentially three categories that could be the subject of a prosecution appeal, namely, terminating rulings, non-terminating rulings and jury verdicts of acquittal.

3.061

The Commission does not suggest that this is the best, or even the only, method of distinguishing between various decisions. However, this categorisation has been chosen as it highlights many of the hidden pitfalls associated with attempts to place limits on any prosecution avenue of appeal.

3.062

Indeed, this relatively straightforward taxonomy conceals that it is often difficult to categorise a ruling as 'terminating' or 'non-terminating'. It is therefore useful to examine some examples of each category.

3.063

Clear examples of terminating rulings would include: an order quashing an indictment on the grounds that the indictment is bad on its face or so insufficient as to make any judgment given on it erroneous;327 a stay on the grounds of abuse of process or delay; and a trial judge's decision to direct the jury to return a not-guilty verdict.328 Examples of non-terminating rulings might include: an order


327

Ryan & Magee, The Irish Criminal Process (Mercier Press, 1983) at 270.

 

328

Whilst technically it is the jury that brings the trial to an end by its 'not guilty' verdict, the Commission proceeds on the basis that, in reality, the decision is that of the trial judge. As O'Higgins CJ stated in The People (Director of Public Prosecutions) v O'Shea [1982] IR 384, 401, whilst discussing directed acquittals:

 

“The word verdict derives from the Latin words versus and dictum and has always been taken to indicate an important decision truly spoken after careful deliberation by the deciding body. Here the jury's only association with what is described as their verdict was to watch while the foreman, in obedience to the order of the trial judge, signed his name on an issue paper which already had written on it the words 'Not Guilty by direction' in (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=64

 

unfavourable to the prosecution in relation to an application for a transfer of venue;329 the granting of an adjournment;330 or an order for joinder or severance.331 Although not as obvious, in this Paper a trial judge's charge to a jury will be regarded as a non-terminating ruling.332

3.064

The categorisation of the above examples as either terminating or non-terminating rulings poses little difficulty. However, greater difficulties emerge in relation to rulings which indirectly bring about the conclusion of a case by rendering it so weak that the prosecutor considers that the prosecution is now untenable. A common example would be an evidentiary ruling which excludes evidence which the prosecutor considers crucial to the case, such as a confession where the confession is the only evidence of guilt. The practice in this jurisdiction would appear to be that the prosecutor would enter a nolle prosequi. In other jurisdictions, such as England and Wales, the prosecutor would offer no evidence causing the trial judge to direct the jury to acquit.333

3.065

Regardless of which method is adopted, the evidentiary ruling itself does not directly terminate the trial, and therefore is perhaps more logically described as non-terminating. Such an approach would be consistent with the observations of Henchy J, in The People (Attorney General) v Crinnion,334 that evidentiary rulings leading to directed verdicts were not appealable pursuant to section 34 of the 1967 Act as they were not directed acquittals themselves. Therefore, the Commission adopts this approach for the purposes of this Consultation Paper. It may be noted that a different approach has been advocated by the Law Commission of England and Wales, which suggests that such rulings are terminating because they effectively bring about the conclusion of the trial.335


328

 

(cont'd) respect of the seven counts standing on the indictment. Whatever appearance old-established custom and procedure may require in criminal jury trials, the reality is that such a verdict of 'Not Guilty' was never pronounced by the jury and resulted from the judge's decision and his alone.”

 

329

Ryan & Magee, The Irish Criminal Process (Mercier Press, 1983), at 264.

 

330

Ibid. at 266.

 

331

Ibid. at 291-95.

 

332

Although a trial judge's charge to the jury is not strictly speaking a 'ruling', it sits conveniently within this category for the purposes of this discussion. It should be noted that the misdirection of a jury in favour of the prosecution is a ground for a defence appeal against conviction.

 

333

Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at para.4.3.

 

334

[1976] IR 29, 36. See para.1.30 above.

 

335

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.95. The Commission acknowledged that its definition of a terminating ruling would give the prosecution the power to define which rulings are terminating. The Commission expressed concern that the prosecution might gain a right of appeal where it “decided to throw in its hand where its case had become difficult but not impossible.” However, the Commission suggested that a mechanism whereby the appellate court could take into account “the interests of justice” would alleviate this difficulty.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=65

 

3.066

Whether evidentiary rulings are best described as terminating or non-terminating rulings, the above discussion highlights that an appeal model based on such a distinction may not always be clear-cut. The Commission emphasises that it has chosen to separate rulings into these categories not because it necessarily advocates that a new prosecution avenue of appeal should incorporate such a distinction, but to highlight the difficulties involved if such a distinction were incorporated. As discussed below, such a distinction is generally of less importance in a without prejudice model.

(a) Terminating Rulings

3.067

Terminating rulings bring about the premature termination of a criminal proceeding. Compared with the vast majority of rulings made during the course of criminal proceedings, they are relatively rare. However, unlike non-terminating rulings, terminating rulings eliminate the jury from the decision making process. Given the status of the jury in criminal trials this is a significant step and hence it is of the utmost importance that these rulings are just and accurate.

3.068

It is, therefore, unsurprising that the Committee on Court Practice and Procedure336 and, more recently, the Law Commission of England and Wales337 have emphasised a greater need for a with prejudice prosecution avenue of appeal against terminating, as opposed to non-terminating, rulings.338 Interestingly, however, neither the Committee nor the Law Commission recommended that all terminating rulings should be subject to appeal.

3.069

The Committee's appeal scheme was limited to appeals from directed acquittals. A similar restriction is placed on the without prejudice right of appeal under section 34 of the 1967 Act. It may be argued that it is arbitrary to limit either with prejudice or without prejudice appeal schemes to directed acquittals. If directed acquittals are singled out for special treatment merely because they eliminate the jury from the decision making process, then arguably all terminating rulings should likewise be appealable as they have the same effect.

3.070

Whilst limiting its proposed appeal scheme to directed verdicts, the Committee does not appear to have confined its appeals to pure questions of law.339


336

Twenty-Second Interim Report: Prosecution Appeals (February 1993).

 

337

Double Jeopardy and Prosecution Appeals (LC 267, 2001).

 

338

However, it should be noted that the Law Commission includes within its definition of terminating rulings those non-terminating rulings which effectively bring about the conclusion of the trial; for example, an evidentiary ruling that excludes evidence crucial to the prosecution case which in turn leads to the trial judge ruling that there is no case to answer. See para.3.065 above.

 

339

Whilst the Committee is not explicit in this regard, the only decision which the Committee states should not be subject to appeal is “an acquittal 'on the merits', even where that acquittal is the result of an erroneous instruction by the trial judge to the jury”, which presumably refers to considered verdicts of the jury: The Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.22.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=66

 

Rather, the Committee appears to have proposed that prosecution appeals should be available against all directed acquittals, implying that appeals could be brought on questions of mixed law and fact.340

3.071

By comparison, the Law Commission recommended that all terminating trial rulings341 should be subject to its proposed with prejudice avenue of appeal, except for a certain category of no-case-to-answer rulings. As in this jurisdiction, in England a no-case-to-answer ruling may be made on either of two grounds:342



(a)

 

The evidence does not disclose any offence for which the accused might be found guilty; or

 



(b)

 

The prosecution evidence is such that no reasonable jury properly charged could convict.

3.072

Whilst the first ground is said to be a question of law, the second ground requires the trial judge to make an assessment of the evidence and hence is said to be one of mixed law and fact. Whilst the Law Commission considered that directed acquittals based on the first ground should be subject to appeal, it considered that acquittals based on the second ground should not be appealable given that the trial judge would be performing a “quasi-jury role”.343

3.073

The Law Commission's approach appears to be consistent with that of the Privy Council in its recent decision of Justice Raham Smith v R.344 There, the Privy Council was considering a with prejudice prosecution avenue of appeal restricted to questions of law. The Privy Council accepted that some no-case decisions could involve questions of law: for example, a ruling that an offence contains an ingredient of mens rea (where there is no such evidence). However:

“[M]ost no case submissions will simply involve an assessment of the strength of the evidence led by the prosecution. A certain amount of weighing of evidence is unavoidable at this stage because the trial judge has to form a view whether the evidence could potentially produce conviction beyond reasonable doubt”.


340

By comparison, s.34 of the 1967 Act is restricted to questions of law.

 

341

The Law Commission also recommended that the current scheme for appeals against certain pre-trial rulings should be extended: see para.1.52 above.

 

342

Ryan & Magee, The Irish Criminal Process (Mercier Press, 1983) at 341. See Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.7.50-7.74.

 

343

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.68. In making this recommendation, the Law Commission reversed its provisional recommendation in its Consultation Paper that there should be no right of appeal against any ruling of no-case-to-answer.

 

344

[2000] 1 WLR 1644. However, the Law Commission approach is inconsistent with the statement of Diplock LJ in Attorney General for Northern Ireland's Reference (No 1 of 1975) [1977] AC 105 (House of Lords), where he indicated that all judicial rulings involve questions of law: “I know of no other satisfactory definition of a 'point of law' arising in a criminal case than that it is a question that under this mode of trial would fall to be decided by the judge, not by the jury.” For further discussion of this decision, see para.3.050 above.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=67

 

3.074

The question arises, however, whether this approach creates a distinction between the two categories of no-case-to-answer rulings that would be so fine as to be unworkable.

3.075

It should be noted that if a without prejudice appeal scheme allowed an appellate court to take a more relaxed approach to appeals on questions of mixed fact and law, as discussed at paragraph 3.057 above, then such narrow distinctions might not be necessary for without prejudice appeals.

3.076

The Law Commission was also conscious that subjecting no-case-to-answer rulings to the possibility of a prosecution appeal might create what it described as a “defence dilemma”.345 The Law Commission argued that the defence might be discouraged from making a no-case-to-answer application on the grounds that, if successful, there would be a risk that the prosecution would appeal, resulting in a possible retrial. It was said that this disincentive would be greatest for the very cases most appropriately dismissed, namely weak prosecution cases. In these cases the defence may be inclined to leave the matter to the jury.

3.077

However, it may be questioned whether, in reality, the defence would forgo any genuine opportunity for the prosecution to be dismissed. Perhaps, at most, the threat of a prosecution appeal would discourage defence counsel from urging patently erroneous no-case-to-answer rulings which would be inevitably dismissed on appeal. If the possibility of a prosecution appeal discouraged such patently erroneous submissions, then this may add strength to the argument for the availability of prosecution appeals.

3.078

Again, a without prejudice appeal scheme would not create any risk of a “defence dilemma” given that there would be no chance of a retrial.

3.079

It should be noted that not all law reform bodies have supported the introduction of with prejudice appeals against terminating rulings. The New South Wales Law Reform Commission has recently recommended against the introduction of such appeals on the grounds that such a fundamental change in the law would not be warranted to accommodate what was an uncommon problem in New South Wales, namely improper directed acquittals.346 However, like the current law in England and Wales, New South Wales provides for a without prejudice avenue of appeal against both terminating and non-terminating rulings.

(b) Non-Terminating Rulings

3.080

As discussed earlier, 'non-terminating' rulings are those which do not bring the proceedings to an end, but rather weaken the prosecution case.


345

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.65.

 

346

New South Wales Law Reform Commission, Directed Verdicts of Acquittal (R 77, 1996) at para.3.4.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=68

 

3.081

Appeals against non-terminating rulings which are brought on a without prejudice basis pose few novel problems. At the conclusion of the trial, the prosecution could bring an appeal much in the same way as an appeal against a terminating ruling.

3.082

In contrast, one of the principle difficulties posed by without prejudice appeals against non-terminating rulings is the question as to when it is appropriate to hear the appeal. Essentially, such appeals could be brought about in four ways, namely:



(i)

 

In the case of a pre-trial non-terminating ruling, an appeal could be brought prior to the commencement of the trial;

 



(ii)

 

The trial could be suspended pending the outcome of a prosecution appeal;

 



(iii)

 

The trial could be abandoned, an appeal heard, and a retrial held on the basis of the directions from the appellate court; or

 



(iv)

 

The trial could proceed to conclusion and an appeal brought only in the event of an acquittal of the accused.

(i) Pre-Trial Appeals

3.083

Pre-trial rulings are uncommon in this jurisdiction, although as mentioned at paragraph 1.37 above, they are not unheard of. However, other than the possibility of appeal pursuant to section 16 of Criminal Procedure Act, 1947, pre-trial rulings are currently unappealable by the prosecution.347

3.084

It may be argued that the development of a more structured pre-trial ruling scheme, coupled with defence and prosecution avenues of appeal, would enhance the quality of trial rulings. Providing the necessary time is made available to judges, pre-trial rulings can be made in a calm and reflective atmosphere that is not possible during a trial with a waiting jury. An increase in the standard of first instance rulings would itself reduce the necessity for prosecution appeals.


347

Pre-trial hearings and pre-trial appeals are available in a number of foreign jurisdictions. For example, the United States Federal law permits prosecution appeals against pre-trial evidentiary rulings prior to trial if the US Attorney certifies that the appeal is not taken for the purposes of delay and the evidence is substantial proof of a fact material in the proceedings: 18 USC, §3731 (1988). Likewise, in New Zealand both the prosecution and defence may, with leave of the Court of Appeal, appeal pre-trial rulings prior to trial: s.379A of the New Zealand Crimes Act, 1961. In England and Wales there are two categories of hearings in advance of trial. First, preparatory hearings are reserved for fraud cases and other complex or long trials. Appeals against rulings made at this stage may be appealed by both the prosecution and defence. Secondly, pre-trial hearings are available for the remainder of indictable cases. Appeals against rulings are not appealable by either prosecution or defence prior to trial (the defence may appeal against pre-trial rulings as a ground of a general appeal against conviction). For discussion, see Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.2.32-2.35.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=69

 

3.085

Furthermore, where an appeal against a pre-trial ruling was deemed necessary, the appeal could be heard prior to the accused being placed in jeopardy provided sufficient time and court resources were made available. Consequently, pre-trial appeals would avoid many of the arguments associated with the infringement of the double jeopardy principle that arise when appeals are brought at later stages of the proceedings, as discussed below.

3.086

However, it must be acknowledged that not every contentious issue can be anticipated prior to trial. Furthermore, some issues are better dealt with in the context of the trial proper:

“Evidentiary matters are by their very nature holistic. Questions of admissibility are usually predicated on a background of interwoven fact patterns, and the facts set out in the record... are often insufficient to permit an informed decision... To hold a mini-trial in order to decide an evidentiary matter may cause great delay for the defendant and contribute to court inefficiency.”348

3.087

Whether pre-trial appeals could be effectively accommodated in this jurisdiction would depend largely on the establishment of a coherent and structured pre-trial hearing scheme, the merits of which are beyond the scope of this Consultation Paper. Nevertheless, it may be argued that a pre-trial prosecution avenue of appeal has the potential to enhance the quality of trial rulings while at the same time minimising the risk of infringement of an accused's right to be placed only once in jeopardy of conviction.

(ii) Adjourning the Trial Part-Heard

3.088

Dealing with the second option, in the event that the prosecution wishes to appeal against a ruling favourable to the defence, the trial could be suspended pending the outcome of the appeal. However, given that a trial is primarily conducted orally, any delay during trial would be disruptive to a jury's recall and comprehension of the evidence during its deliberations, which would cast doubts on the validity of the verdict.

3.089

Indeed, the Supreme Court, in The People (Attorney General) v McGlynn,349 has expressed disapproval of the practice of adjournment midway through a trial to enable a point of law to be determined on appeal. In that case a


348

Shapiro, “Reviewing the Unreviewable Judge: Federal Prosecution Appeals of Mid-Trial Evidentiary Rulings” (1990) 99 Yale LJ 905, 912. Similarly, the Law Commission of England and Wales has recently recommended that the range of cases which may be subject to pre-trial appeals should be confined to fraud cases and other complex, serious or long trials. The Commission argued that the introduction of a general avenue of pre-trial appeal would create “inconvenience, delay and disruption, given the large number of cases in which such ruling are routinely and properly sought immediately before the start of the trial”: Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.7.20-7.34.

 

349

[1967] IR 232.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=70

 

Circuit Court judge had purported, pursuant to section 16 of the Courts of Justice Act, 1947, to refer a question of law to the Supreme Court at the close of evidence (but before charging the jury) at the request of the defence.350 The Supreme Court held that not only did section 16 of the 1947 Act fail to provide the Circuit Court judge with any jurisdiction to refer a question mid-trial, but also there were policy reasons why there should not be any such power:

“The nature of a criminal trial by jury is that, once it starts, it continues right through until discharge or verdict. It has the unity and continuity of a play. It is something unknown to the criminal law for a jury to be recessed in the middle of a trial for months on end, and it would require clear words to authorise such an unusual alteration in the course of a criminal trial by jury.”351

(iii) Abandoning the Trial Part-Heard

3.090

The third option would be to abandon, rather than adjourn, the trial in order to facilitate a prosecution appeal. A retrial would be required in all cases, regardless of whether the prosecution was successful with its appeal. However, whenever the prosecution were to fail in an appeal, the trial would have been abandoned for no gain whatsoever. The decision to abandon a trial would therefore need to be taken with considerable care.

3.091

This leads to the practical question as to who would decide whether the trial should be aborted. One option would be to leave the decision with the trial


350

The question of law related to whether the trial judge, in a trial involving various firearms and dishonesty charges, was bound to direct the jury in terms of the M'Naughton Rules.

 

351

[1967] IR 232, 239, per Ó Dálaigh CJ. See also the judgment of Budd J, at 242-3, who explained:

 

“Some considerable time must inevitably elapse before the decision of the Supreme Court can be given and before the trial can be continued. During that interval it is almost bound to happen that the jury will forget a great deal of the evidence given before them, and the difficulties of recalling the evidence to their minds must be very great, if it can be done satisfactorily at all. The danger of the case being discussed by members of the jury with other persons, despite any admonition to the contrary given by the trial judge, increases with the length of the adjournment. The danger of the jury forgetting, over a long interval of adjournment, portions of the evidence given is something which also may well militate against the interests of the accused person. The course of adjourning a criminal trial before a judge and jury while the opinion of the Supreme Court is taken on a Case Stated is, therefore, for the reasons which I have stated, one which is consonant neither with convenience nor with the interests of the due and proper administration of justice.”

See also The People (Attorney General) v Jackson [1972] IR 345 where the Court of Criminal Appeal quashed a conviction on the grounds that the trial judge had adjourned a trial following defence counsel's address on a Wednesday through until the Monday when the judge summed up to the jury. The Law Commission of England and Wales, which recommended that there should be no with prejudice prosecution appeals against non-terminating rulings, likewise took the view that mid-trial adjournments were not desirable: Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at para.4.10; Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.7.37-7.39.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=71

 

judge. However, the effectiveness of this approach is debatable given that it would essentially require trial judges to assess the potential for error in their own decisions.352 The decision could be placed in the hands of the prosecutor, although it has been suggested that this would place the prosecutor under “intolerable pressure by those who perceived that their interests had been damaged by such a ruling”,353 including perhaps the complainants, witnesses or the police investigators. Where a trial was progressing poorly, prosecutors themselves may also be improperly influenced to appeal in order to secure a retrial.354

3.092

It has been suggested that the decision whether to abandon the trial should be placed squarely in the hands of the accused person as the person who is likely to suffer the most prejudice from a retrial.355 Under this model, when a trial judge determines that a defence objection should succeed, the prosecution would put an ultimatum to the defence: the accused must decide either: (1) to allow the trial to be abandoned for the purposes of allowing the prosecution to bring an appeal and consent to a subsequent retrial, or; (2) to forgo the objection. If the accused were of the view that the objection had little merit, the accused would be unlikely to opt for a mistrial as it would be likely that the ruling would be reversed on appeal, resulting in a retrial with nothing gained. If the accused were of the view that the objection had merit, the accused would probably opt for a mistrial given that little is gained from continuing with the trial.356 Hence, only the most contentious and important rulings would result in the abandonment of the trial. However, in addition to placing an unenviable dilemma on an accused during trial, it may be argued that this innovation would unduly erode the trial judge's control of the process.357


352

Shapiro, “Reviewing the Unreviewable Judge: Federal Prosecution Appeals of Mid-Trial Evidentiary Rulings” (1990) 99 Yale LJ 905, 920.

 

353

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.7.38 and 7.98.

 

354

Shapiro, “Reviewing the Unreviewable Judge: Federal Prosecution Appeals of Mid-Trial Evidentiary Rulings” (1990) 99 Yale LJ 905, 920.

 

355

For discussion, see ibid. This model was proposed to avoid the strict prohibition in the United States upon placing an accused in double jeopardy. The author suggests that after the trial is abandoned the trial judge should make a pre-trial ruling. In the United States the prosecution may usually appeal against pre-trial rulings without offending against the double jeopardy principle.

 

356

If the accused were to permit the trial to continue and was convicted, the best result that the accused would be likely to achieve on appeal would be a retrial.

 

357

The Law Commission of England and Wales, which recommended that there should be no with prejudice prosecution appeals against non-terminating rulings, took the view that the abandonment of trials to facilitate interlocutory appeals was undesirable. Unlike appeals against terminating rulings, where the accused would be required to undergo a retrial only if the terminating ruling was wrong, if a trial was abandoned following a non-terminating ruling the accused would have to undergo a retrial regardless of whether the non-terminating ruling was right or wrong: Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at para.4.11; Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.7.37-7.39.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=72

 

(iv) Hearing the Appeal Following the Jury's Verdict

3.093

Under the fourth option, the prosecution right of appeal would be exercised following acquittal. However, before the appellate court could overturn the non-terminating ruling and order a retrial, it would first have to quash the considered acquittal of the jury. Traditionally, protection afforded by the double jeopardy principle has been at its strongest where the accused has been acquitted by the jury, rather than where the acquittal is delivered as a result of a judicial direction.

3.094

Furthermore, before retrial could be ordered, the appellate court would have to carry out an assessment of the effect of the non-terminating ruling on the jury's deliberations. However, appellate courts have often been uncomfortable with the prospect of delving into the possible reasons for a jury decision least they are criticised for usurping the role of the jury. On the other hand, it may be argued that the appellate court would be doing no more than is required to determine a defence appeal against conviction. After all, an appellate court which quashes a conviction and orders a retrial might also be said to be going behind the jury's verdict.

3.095

The Law Commission of England and Wales has recently argued that it would be inappropriate to ask an appellate court to assess whether a non-terminating ruling influenced a jury's verdict.358 The Law Commission rejected the analogy with defence appeals arguing that defence appeals, because of the burden of proof, do not require the appellate court to come to a firm conclusion about what the jury found in relation to each element of the offence. Rather a successful defence appeal need only establish that the conviction is unsafe. The Law Commission was of the view, however, that a successful prosecution appeal would require the appellate court to remove all reasonable doubt, namely to conclude that the jury would have been sure of each of the elements of the offence. The Law Commission said that this would be both difficult to determine and objectionable given that it is the function of the jury to find the facts.

3.096

However, this may be overstating the role required of the appellate courts in such appeals. It may be argued that a more appropriate test would be to require the prosecution to satisfy the appellate court that a properly directed jury could have been sure of each of the elements of the offence, or would have been likely to have convicted.359 Appellate courts are used to carrying out such functions and, if a retrial were ordered, then it would be the jury's task to consider the prosecution case unhindered by the earlier erroneous non-terminating ruling.


358

This point was made in Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at paras.6.23-6.25 in relation to appeals against judicial misdirections to the jury.

 

359

In relation to Tasmanian prosecution appeals, the High Court of Australia has stated: “Where the prosecution bears the onus of proof of the issue to which the rejected evidence is relevant, it is not enough for the Attorney General to show that the evidence ought to have been admitted. Regard must be had to the standard of proof in a criminal trial and to the likelihood that, had the rejected evidence been admitted, the jury would have convicted...” (Emphasis added): Williams v R (1986) 161 CLR 278, 302-303, per Mason and Brennan JJ.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=73

 

3.097

There is an alternative model which would completely eliminate the need for a retrial (and the consequential prejudice to the acquitted person) were the prosecution to succeed with its appeal.360 Under this model, where the defence raises any objections to the prosecution case, the trial judge would merely record the objection but allow the prosecution to proceed with their case. All defence objections would be deferred to the conclusion of the trial. If the accused were acquitted, the objections would no longer be relevant. If the accused were found guilty, then the judge would be obliged to rule on the earlier defence objections. If the rulings were in favour of the prosecution, then the verdict would stand and the accused could avail of the standard defence rights of appeal. If the rulings were in favour of the defence, the guilty verdict would be suspended pending the outcome of any prosecution appeal. If the prosecution appeal proved successful, the guilty verdict could be reinstated without the need for a retrial or interfering with the jury's finding of facts. If the prosecution appeal failed then a retrial would be required, but this would be no different to ordering a retrial following a successful defence appeal given that the appellate court would in effect be overturning the guilty verdict.

3.098

Unfortunately, whilst this model would reduce the likelihood of an acquitted person having to undergo a retrial, this would be balanced by an overall increase in the likelihood that accused persons would be convicted (because a trial judge could not rule out any prosecution evidence, even evidence the judge considered inadmissible). There would be nothing to prevent a trial from proceeding on the basis of manifestly inadmissible prosecution evidence, inevitably resulting in a retrial if a conviction followed. Aside from the issue of prejudice to the accused, the complainant and the witnesses, this would be an inefficient use of court time.

3.099

In conclusion, no doubt conscious of the above-mentioned difficulties, other law reform bodies, such as the Committee on Court Practice and Procedure361 and the Law Commission of England and Wales,362 have concluded that there should be no with prejudice prosecution right of appeal against non-terminating rulings favourable to the defence.


360

See, for discussion, Shaw, “Prosecution Appeals Taken Mid-trial and Following Acquittal: Changing the Trial and Review of Criminal Cases in Ohio” (1996) 22 Ohio NUL Rev 729, 747.

 

361

Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.22.

 

362

Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at para.4.4; Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.39. However, the Law Commission includes within its definition of terminating rulings those non-terminating rulings which effectively bring about the conclusion of the trial; for example, an evidentiary ruling that excludes evidence crucial to the prosecution case, which in turn leads to the trial judge ruling that there is no case to answer. See para.3.065 above.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=74

 

(c) Jury Verdicts of Acquittal

3.100

This section deals with prosecution appeals challenging the merits of jury acquittals. In other words, the section is concerned with acquittals delivered by properly directed juries, rather than acquittals tainted by prior judicial errors of law, such as a trial judge's misdirection to a jury363 or an erroneous judicial direction to acquit.364

3.101

One the difficulties associated with appeals on the merits of jury acquittals is that it is impossible for an appellate court to discern the reasoning of juries given that they do not give reasons. Hence, it will not be obvious to an appellate court whether a jury's findings of facts are flawed, whether the jury wrongly applied the law to the facts, or whether the jury has simply chosen to return a 'perverse verdict'.365

3.102

Whilst it is impossible to challenge a jury verdict on the grounds that it made specific errors, there remains two alternative forms of appeal. The broadest form is the de novo appeal. In a de novo appeal the appellate court would be asked to consider the trial evidence afresh and to draw its own conclusions uninfluenced by the jury verdict. At its broadest the appellate court would be substituting its own view of the facts for that of the jury, and hence would be deciding the case on a pure question of fact. However, in common law jurisdictions appellate courts are rarely given such broad powers in relation to appeals from jury trials, regardless of whether the defence or prosecution brings the appeal.366

3.103

The second, and narrower, form of appeal on the merits confines the appellate court to assessing the reasonableness of the acquittal. The question for the appellate court is whether the verdict was one that a properly charged jury could have reached. A corresponding avenue of appeal is already available to the defence in this jurisdiction, namely that the conviction is unreasonable or cannot be supported having regard to the evidence.367 As discussed earlier,368 it is debatable whether this form of appeal raises pure questions of law or whether it is more accurate to acknowledge that the appellate court is required to assess the strength of the evidence, and hence is also deciding questions of fact.

3.104

Either form of appeal on the merits of a jury acquittal would inevitably have to be on a with prejudice basis. There would be little purpose in bringing appeals on a without prejudice basis given that juries do not deliver reasons and therefore any error in the application of law which the jury may have made could


363

Appeals which challenge the correctness of judicial directions during a summing up and other non-terminating ruling are discussed at paras.3.080-3.099 above.

 

364

Appeals which challenge the correctness of directed verdicts are discussed at paras.3.067-3.079 above.

 

365

For a discussion of 'perverse verdicts', see para.3.108 below.

 

366

De novo appeals are not uncommon, however, from decisions in the summary jurisdiction.

 

367

See, Ryan & Magee, The Irish Criminal Process (Mercier Press, 1983) at 430.

 

368

See paras.3.026-3.059 above.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=75

 

never be identified. Different considerations may apply to verdicts delivered by the Special Criminal Court, which are accompanied by reasoned judgments containing statements of the law and findings of fact. Appeals against acquittals delivered by the Special Criminal Court are considered separately below.

3.105

In the case of jury acquittals, it would be a radical step to allow either de novo appeals or appeals on the grounds of unreasonableness. Appellate courts would be asked to carry out an assessment of the strength of the evidence, arguably usurping the role of the jury as the ultimate tribunal of fact in criminal proceedings. Appellate courts do not share the advantage enjoyed by the jury of observing the demeanour of the witnesses when making assessments of the reliability and credibility of evidence.

3.106

Nevertheless, it must be recognised that appellate courts are empowered to carry out this function in relation to defence appeals against conviction, and it has been argued that these appellate powers do not usurp the role of the jury.369

3.107

However, prosecution appeals are sometimes distinguished from defence appeals on the basis that they involve different burdens of proof.370 In order to successfully show that a conviction was unreasonable, the defence need only show that the jury could not have excluded a reasonable doubt. However, in order to appeal successfully on the grounds that an acquittal was unreasonable, the prosecution would need to reach a considerably higher threshold, namely, that the jury could not have entertained a reasonable doubt. This would be a difficult threshold to reach.

3.108

A further argument why prosecution appeals against acquittal on the merits should not be permitted is that they would effectively preclude the jury from returning a 'perverse verdict'. Some would argue that this would be a positive development.371 Others, such as Henchy J, have argued that affording juries the power to return perverse verdicts is a fair price to pay for independent verdicts:


369

See, for example, the Canadian Supreme Court judgment in R v Biniaris [2000] 1 SCR 381. The Court accepted, at 405, that an appeal against the reasonableness of a conviction requires the court “to examine the weight of the evidence, rather than its bare sufficiency.” However, the Court continued, at 409:

 

“When an appellate court arrives at [the conclusion that the fact-finding exercise applied at trial was flawed in light of the unreasonable result that it produced], it does not act as a 'thirteenth juror', nor is it 'usurping the function of the jury'. In concluding that no properly instructed jury acting judicially could have convicted, the reviewing court inevitably is concluding that these particular jurors who convicted must not have been acting judicially. In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. This, in my view, is the assessment that must be made by the reviewing court. It requires not merely asking whether twelve properly instructed jurors, acting judicially, could reasonably have come to the same result, but doing so through the lens of judicial experience which serves as an additional protection against an unwarranted conviction.”

 

370

For example, the Canadian Supreme Court judgment in R v Biniaris [2000] 1 SCR 381, 402-3.

 

371

Auld LJ argues that the jury's power to return perverse verdicts should be, as far as possible, eliminated by requiring juries to return special verdicts in appropriate cases, that is to require (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=76

 

“Both judges and legislators have accepted that while a jury, properly instructed by the trial judge, have no right to bring in a verdict for the accused which is against the evidence, yet they have a power to do so; and that the risks inherent in any efforts at controlling the exercise of that power would not be warranted. The use of the power to err in favour of the accused is left to the consciences of the jurors. In any event, what may seem to judges to be a perverse verdict of acquittal may represent the layman's rejection of a particular law as being unacceptable. So it is that such verdicts have often led to reform of the criminal law.”372

3.109

In The People v O'Shea373 the Supreme Court declined to recognise a prosecution right of appeal on the merits of a jury verdict.374 The Committee on Court Practice and Procedure also rejected such a right.375 Similarly, the Law Commission of England and Wales has recently recommended that such a right of appeal should not be introduced:

“Any proposal to allow a general prosecution right of appeal, simply on the basis that the jury came to the wrong decision on the facts, would undermine the jury. The jury might become, in effect, no more than a screening mechanism for the final finders of fact, the Court of Appeal. The general attachment to the jury is based on the perception that it serves both accuracy of outcome and process values. Juries are seen as being more likely to produce an accurate result by virtue of their acquaintance with the normal life of the community, and as legitimising the criminal justice system by making the ultimate decision on guilt one for a randomly selected group of the defendant's peers. Any question of an appeal on the unconstrained basis that the jury got it wrong should be rejected out of hand, as profoundly damaging to both the accuracy and legitimacy of the system.”376

3.110

These views may be contrasted with that of the South African Law Commission, which has recently recommended the introduction of a broad with


371

(cont'd) them to answer publicly a number of questions fashioned by the judge to the issues of the case. Auld LJ explains: “If that recommendation is accepted, the reasoning of the jury would be exposed to judicial and public scrutiny in a way that it is not now... One consequence would be that the open reasoning of juries in their special verdicts could, on occasion, reveal what is mostly undiscoverable now, namely perverse verdicts.” Auld LJ recommends that such perverse verdicts should be open to appeal by both the defence and prosecution: Auld LJ, A Review of the Criminal Courts of England and Wales (2001) at paras.12.66-67.

 

372

The People (Director of Public Prosecutions) v O'Shea [1982] IR 384, 438.

 

373

Ibid.

 

374

For example, O'Higgins CJ, stated: “An acquittal duly recorded by a jury on a consideration of the evidence would be immune”: ibid. at 405.

 

375

Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.22.

 

376

Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at para.6.22.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=77

 

prejudice avenue of appeal that would include appeals on the factual merits of an acquittal.377 Interestingly, however, the Law Commission only felt able to make such a recommendation given the absence of a jury trial system in South Africa, and recognised that “[a]n appeal on fact where findings of credibility and demeanour are relevant is not feasible against a judgment in a jury trial because a jury does not give reasons for its verdict”.378

3.111

Appeals in civil law jurisdictions are generally limited to questions of law in relation to verdicts rendered by juries, or mixed benches of judges and juries.379 On the other hand, the appellate courts are generally able to conduct de novo reviews of acquittals in trials conducted by judges only.380

3.112

By analogy with the South African proposals and the law in some of the civil law jurisdictions, it may be argued that the acquittals returned by the Special Criminal Court should be appealable by the prosecution given the absence of any jury complications. A verdict of the Special Criminal Court is accompanied by a reasoned judgment containing both statements of law and findings of fact.

3.113

Appeals could be confined to correcting manifest errors of law, either on a with prejudice or without prejudice basis, which would not disturb the Special Criminal Court's findings of fact.381 Successful with prejudice appeals would not necessarily encounter the double jeopardy difficulties associated with retrials provided the appellate court could substitute a guilty verdict on the basis of the Special Criminal Court's findings of fact.382


377

South African Law Commission, Third Interim Report on Simplification of Criminal Procedure (The Right of the Director of Public Prosecutions to Appeal on Questions of Fact) (Project 73, 3rd Interim Report, 2000). Singapore is an example of a jurisdiction that explicitly permits appeals on questions of fact from verdicts delivered in superior courts. Section 44(4) of the Singapore Supreme Court of Judicature Act provides that a prosecution appeal against an acquittal “may lie on a question of fact or a question of law or on a question of mixed fact and law.”

 

378

South African Law Commission, Third Interim Report on Simplification of Criminal Procedure (The Right of the Director of Public Prosecutions to Appeal on Questions of Fact) (Project 73, 3rd Interim Report, 2000) at 6. Criminal trials in the superior courts are conducted by a bench of trial judges and lay assessors.

 

379

For example, acquittals delivered by the higher first instance courts in Germany, France, Italy, Belgium and Denmark. See paras.1.82-1.87 above.

 

380

For example, acquittals delivered by the lower first instance courts in Germany, France, Italy, Belgium and Denmark, and acquittals from all courts in the Netherlands. See paras.1.82-1.88 above.

 

381

These appeals would perform an analogous role to prosecution appeals challenging the correctness of a trial judge's charge to the jury. A similar argument for permitting appellate courts to reverse acquittals made in 'bench' trials is discussed in Shaw, “Prosecution Appeals Taken Mid-trial and Following Acquittal: Changing the Trial and Review of Criminal Cases in Ohio” (1996) 22 Ohio NUL Rev 729, 747-748.

 

382

For example, in The People v Kavanagh Special Criminal Court, 29 October 1997, the accused was charged with three counts relating to false imprisonment and three charges relating to robbery, all arising from the same incident. The Special Criminal Court held that “it was not possible for the Court to consider” the three charges relating to false imprisonment as a “lacuna” in the law had been inadvertently created by the enactment of the Non-Fatal Offences Against the Person Act, 1997. The Court held that the 1997 Act abolished the common law offence and (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=78

 

3.114

A more radical form of appeal would permit the prosecution a with prejudice avenue of appeal against the factual findings of the Special Criminal Court. Appeals against the merits of a Special Criminal Court verdict would present fewer difficulties than similar challenges to jury acquittals given that any flaws in the Court's evaluation of the evidence are likely to be evident in the judgment. Alternatively, a less intrusive review by the appellate court might simply ask whether the Special Criminal Court drew the correct inferences from the evidence.383

3.115

However, the fact remains that an appellate court would not share the advantage enjoyed by the Special Criminal Court of observing the demeanour of witnesses.

3.116

Furthermore, the introduction of a prosecution avenue of appeal on the merits which was limited to acquittals delivered in the Special Criminal Court and did not include jury acquittals would create an inequality between the trial forums. Arguably, it would be unfair to subject an accused tried in the Special Criminal Court to a broader prosecution avenue of appeal than that faced by an accused tried before a jury.


382

(cont'd) provided for a new statutory offence. However, the new statutory offence did not apply retrospectively to the date of the accused's alleged criminal acts. Therefore, the Court concluded that there was no offence of false imprisonment for which the accused could be convicted. However, the Court proceeded to consider the evidence in relation to the charges of robbery and found the accused guilty of those charges. If there had been provision for a prosecution appeal, and assuming that such an appeal had been successful (it is not suggested that an appeal in this case necessarily would have been), the appellate court could have considered whether the Special Criminal Court's findings of fact were such that a conviction on false imprisonment charges would have been made out.

 

383

The function of the Court of Criminal Appeal hearing a defence appeal against conviction by the Special Criminal Court was examined in People (Director of Public Prosecutions) v Foley Court of Criminal Appeal (Budd J), 18 July 1994. The Court cited the approach of O'Higgins CJ in The People v Madden [1977] IR 336, namely that the Court of Criminal Appeal will normally accept a finding of fact made by the trial court, but the appellate court is free to draw its own inferences from the facts so found or from facts admitted. O'Higgins CJ applied the following statements of principle taken from the judgment of Holmes LJ delivered in the Court of Appeal in The SS Gairloch [1899] 2 IR 1 at page 18:

 

“When a Judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite matter of fact, his finding ought not to be reversed by a Court that has not the same opportunity of seeing and hearing the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice. The same rule does not apply, at least in the same degree where the conclusion is an inference of fact. It often happens, as in the present instance, that the decisive finding is a deduction from facts hardly disputed or easily ascertained. In such a case the appellate tribunal is in as a good position for arriving at a correct conclusion as the Judge appealed from, and it would be an undue restriction of the functions of the former if it were to hold itself bound by what has been found by the latter.”

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=79

 

CHAPTER FOUR: PROCEDURAL REQUIREMENTS

4.01

This chapter examines the procedural requirements that may be entailed by a new prosecution right of appeal.

A. General or Fettered Right of Appeal

4.02

Should a prosecution avenue of appeal be subject to a requirement of leave from the trial or appellate court? The purpose of such a requirement would be to screen out unmeritorious prosecution appeals.384 However, it is unlikely that a prosecution appeal scheme would be used inappropriately provided the discretion to bring such appeals was confined to the Director of Public Prosecutions or Attorney General.

4.03

The current without prejudice appeal scheme, pursuant to section 34 of the 1967 Act, imposes no leave requirement on the prosecution. The discretion of the Director of Public Prosecutions and Attorney General to bring an appeal is qualified only by a requirement that they consult with the trial judge when deciding the question of law to be referred to the Supreme Court and include any observations that the trial judge may wish to add.

4.04

The Committee on Court Practice and Procedure has argued, in relation to leave requirements, that there should be consistency between prosecution and defence rights of appeal. Currently, convicted persons must either obtain a certificate from the trial judge that the case is fit for appeal, or in the case of a refusal, obtain leave to appeal from the Court of Criminal Appeal.385 The Committee advocated the abolition of this leave requirement and hence recommended that, likewise, there should be no leave requirement for prosecution appeals.386


384

The South African Law Commission has recommended that its proposed new prosecution appeal scheme should be subject to a leave requirement in order to “weed out” unmeritorious appeals. The Law Commission also recommends that the power to bring an appeal should be vested in the Director of Public Prosecutions as a “responsible independent functionary who will not abuse any procedural right accorded to the State”: South African Law Commission, Third Interim Report on Simplification of Criminal Procedure (The Right of the Director of Public Prosecutions to Appeal on Questions of Fact) (Project 73, 3rd Interim Report, 2000) at para.5.24. In New Zealand the prosecution is bound by leave requirements. If the trial judge refuses to state a case, the prosecutor must seek leave of the appellate court to appeal against that refusal: s.381 of the New Zealand Crimes Act, 1961.

 

385

In relation to appeals to the Court of Criminal Appeal from convictions in the Circuit, Central Criminal or Special Criminal Courts: s.31 of the Courts of Justice Act, 1924.

 

386

Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.24. By the same rationale, the Law Commission of England (cont'd)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=81

 

4.05

However, it may be argued that, as an extraordinary power, the right of the prosecution to appeal should be qualified by specific parameters. The content of such a qualification might depend on whether the avenue of appeal was to be with prejudice or without prejudice.

4.06

As without prejudice appeals are concerned with clarifying the law for future cases, it may be argued that such appeals should be restricted to important questions of law.387 However, the same restriction may not be appropriate for with prejudice appeals which are primarily concerned with correcting perceived injustices in the particular cases appealed. A trial error may create injustice regardless of whether it raises an important question of law.388 Restricting with prejudice appeals to important points of law could result in some acquitted persons arbitrarily facing appeals due only to “a quirk of fate that a set of facts give rise to a novel or important point of view”.389

4.07

Alternatively, a with prejudice right of appeal could be limited to cases of a serious nature on the grounds that it may be unfair to put an acquitted person through a second trial when there is only a minor offence at stake. Indeed, the Law Commission of England and Wales took the approach that costs and delays inherent in permitting appeals in the case of minor offences may be out of proportion to the public interest in securing a conviction.390 Appeals could be restricted to a certain class of serious offences carrying a specified maximum term of imprisonment or, alternatively, a schedule listing the offences that were subject to the appeal could be established.


386

(cont'd) and Wales recommended that a leave requirement should accompany its proposed new prosecution right of appeal on the ground that this will maintain consistency with defence appeals: Law Commission of England and Wales, Prosecution Appeals Against Judges' Rulings (CP 158, 2000) at para.7.10; Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.106. However, the current English Attorney General's Reference Scheme imposes no leave requirement on the prosecution.

 

387

Defence appeals from the Court of Criminal Appeal to the Supreme Court are permitted only where “[the Court of Criminal Appeal] 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”: s.29 of the Courts of Justice Act, 1924.

 

388

As Nettlefold J observed in the Tasmanian Court of Criminal Appeal decision, R v Jessop [1974] Tas SR 64, 94-95:

 

“The public interest may require that an error on a question of law alone should be corrected despite the fact that the decision is not likely to be followed in subsequent cases. For example, serious cases like murder, 'pack rape' and armed robbery cause feelings of grave concern in the community. And the public interest requires, in my opinion, that the Crown should be entitled to seek leave to appeal if an error of law has been made even though it is a patent error which will not be followed in later cases. For, in such a case, the error may be so serious that it may be said correctly that justice has not been done according to law.”

 

389

New South Wales Law Reform Commission, Directed Verdicts of Acquittal (R 77, 1996) at para.2.18.

 

390

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at paras.7.79-7.85.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=82

 

4.08

However, restricting with prejudice appeals to serious offences has drawbacks. Whilst with prejudice appeals are primarily concerned with correcting perceived injustices in the particular cases appealed, they also serve the same purpose as without prejudice appeals: namely, to correct erroneous rulings for the benefit of future cases. A criterion based on the seriousness of the offence may arbitrarily exclude cases of a minor nature but which may nevertheless raise important points of law or legitimate public interest.

B. Time Limits for the Notification of Appeals

4.09

What time limits should be imposed within which the prosecution must notify the defence of an intention to appeal?

4.10

In relation to defence appeals under the current law, application for certification must be made at the close of the trial or within three days thereafter.391 The defence must serve a notice of appeal within fourteen days of certification or an application for leave to appeal within seven days of being refused certification, setting out the grounds of appeal within seven days.392

4.11

However, it may be argued that the prosecution should be required to indicate an intention to appeal at the time of any disputed decision, or at least before the acquitted person “steps out of the courtroom and breathes afresh the air of freedom”.393 It might be considered unfair to require an acquitted person to endure an anxious wait for the expiration of an appeal period.394 An example of this approach is the recommendation of the Law Commission of England and Wales that the prosecution should indicate at the hearing itself that it is minded to appeal against the acquittal. The prosecution would then either obtain a certificate from the trial judge that the case is fit for appeal or within seven days file a notice of application for leave to appeal against the acquittal.395


391

Rules of the Superior Courts, SI No.15 of 1986, O.86, r.3.

 

392

Ibid. at rr.4 & 5.

 

393

Henchy J, in his dissenting judgment in The People (Director of Public Prosecutions) v O'Shea [1982] IR 384, 432, argued that, “after the acquitted person steps out of the courtroom and breathes afresh the air of freedom, even if it should emerge afterwards that there is fresh evidence of his guilt, even evidence provided by his own admission of guilt, he cannot be put on trial again for the offence of which he has been found not guilty by the jury.”

 

394

The New Zealand Law Commission have commented that “it would be undesirable to have a general right of appeal, because an accused person should either be acquitted finally and conclusively or [at least] know that he or she has a conditional discharge because of a point of law”: New Zealand Law Commission, Criminal Prosecution (Report 66, 2000) at para.154.

 

395

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.114.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=83

 

C. Time Limits for the Disposition of Appeals and for Retrials

4.12

Should there be time limits on the hearing of a prosecution appeal and, in the event of a retrial, for the commencement of the retrial? An important consideration in this regard is whether there would be a power to detain the acquitted person pending the appeal. In any event, a time limit may be justifiable to minimise delay in the final resolution of proceedings.

4.13

The Law Commission of England and Wales favours a time limit within which appeals must be concluded, although it declined to recommend a precise time frame.396 However, the Commission did recommend that in cases where the appellate court ordered a retrial the acquitted person must be arraigned on a new indictment within two months.397

D. Power of Detention

4.14

If there were to be a power to order a retrial, should there also be a power to hold the acquitted person in custody until such time that a retrial is ordered?

4.15

The Law Commission of England and Wales concluded that there should be a power of detention given that the same issues may arise as those which apply to accused persons awaiting trial, such as risks of absconding or interference with witnesses.398 However, this arguably fails to give due weight to the fact that the person has been acquitted and is not subject to a fresh trial until such time as the appellate court so orders. This is recognised in New Zealand where the acquitted person is discharged subject to being arrested again if the appellate court orders a new trial.399

E. Representation at Appeal

4.16

Under the current without prejudice prosecution appeal scheme, a person whose acquittal is appealed has no right to appear before the Supreme Court.400 This anomaly was highlighted by Henchy J in the Supreme Court decision, The People (Attorney General) v Crinnion:401


396

Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.135. The Commission left the statutory time limit to be determined by the relevant parties, including the Registrar of the Criminal Division of the Court of Appeal.

 

397

Ibid. at para.7.138.

 

398

Ibid. at para.7.125. However, the Commission recommended that there should be a custody time limit of two months from the conclusion of the trial to the conclusion of the appeal: ibid. at para.7.129.

 

399

The New Zealand Crimes Act, 1961, s.380(4).

 

400

Section 34(3) of the 1967 Act merely states that the Supreme Court shall “assign counsel to argue in support of the decision”.

 

401

[1976] IR 29.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=84

 

“Although the Attorney General, as a moving party, may be heard to argue in the Supreme Court against the direction and the judge is to be consulted by the Attorney General before he settles the statement of the question to be referred to the Supreme Court, and whilst such statement shall include any observations the judge may wish to add, the section gives no say to the person in whose favour the verdict was given in the preparation or prosecution of the post-conviction proceedings which may lead to a change in the legal basis of the verdict. It merely provides that the Supreme Court shall assign counsel to argue in support of the decision.”402

4.17

It may well be that the drafters of this legislation deemed it unnecessary that acquitted persons be granted the right to be heard given that without prejudice appeals could have no legal effect on their acquittals. However, as discussed earlier,403 a Supreme Court judgment could undermine the legal basis of a verdict, potentially leading to a perception that the acquittal is 'hollow'. It may be argued, therefore, that an acquitted person should have the right to be heard as a matter of procedural fairness.

4.18

Nevertheless, some acquitted persons might be expected to waive their right to appear at a without prejudice appeal. In such circumstances, it would be appropriate that counsel is appointed to argue the case against the prosecution. This is the practice in England and Wales where amici curiae are appointed by the courts in almost a third of cases brought under the English Attorney General's Reference Scheme.404

4.19

It may be argued that amici curiae should be appointed for all without prejudice appeals, regardless of whether the acquitted persons choose to appear. Generally without prejudice appeals involve important questions of law and therefore it is important that the appellate court is presented with high quality legal argument. An acquitted person, however, may have little motivation to oppose the prosecution legal argument strenuously and may appear, for example, merely to ensure that the factual findings of the trial court are accurately conveyed to the appellate court. Whilst the acquitted persons' counsel would be expected to contribute proficiently to any legal debate to the extent that they are able, counsel will be confined to act within the instructions of their clients. It may, therefore, be prudent to provide for the appointment of amici curiae in all appeals, or at least where the appellate court deems that there is an important question of law to be decided. It is doubtful that this would result in a large increase in legal costs given the small number of prosecution appeals that are likely to be heard.

4.20

Different considerations may well apply to with prejudice appeals where acquitted persons would have a greater vested interest in advancing strenuous


402

The People (Attorney General) v Crinnion [1976] IR 29, 34.

 

403

See para.3.009 above.

 

404

Of the 51 reported judgments to date, an amicus curiae has been appointed on 15 occasions. See Appendix 1.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=85

 

argument in support of their acquittals. The adversarial system may be more likely to provide the necessary quality of legal argument, perhaps obviating any need for the appointment of amici curiae.

F. Further Rights of Appeal

4.21

On the assumption that appeals from the Circuit, Central Criminal and Special Criminal Courts would be made to the Court of Criminal Appeal,405 should the prosecution be permitted a further right of appeal to the Supreme Court?406 The question of a further appeal may arise in two circumstances: first, where the prosecution was unsuccessful in the Court of Criminal Appeal; secondly, where the prosecution wishes to challenge a successful defence appeal against conviction. These scenarios are considered separately below. However, it is important to note that were the prosecution to be granted a right of appeal to the Supreme Court, fairness would dictate that the defence is granted a right of appeal against any Court of Criminal Appeal judgments in favour of the prosecution.

(a) Appeals Against Unsuccessful Prosecution Appeals in the Court of Criminal Appeal

4.22

It may be argued that to permit the prosecution a second right of appeal would amount to harassment of the acquitted person. Furthermore, should the prosecution be seeking a retrial, the resultant delay may be such that a retrial would be unfair to the accused. On the other hand, to deny a further right of appeal would exclude the development of appellate jurisprudence at the highest level on what could be important points of law.

4.23

Apparently balancing these considerations, the Committee on Court Practice and Procedure recommended that a further appeal to the Supreme Court should be possible only with leave and on a without prejudice basis. This is to be contrasted with their recommendation in relation to appeals at first instance which could be brought without seeking leave and on a with prejudice basis.407


405

If brought into effect, s.4 of the Courts and Court Officers Act, 1995 will abolish the Court of Criminal Appeal. However, the commencement order has yet to be promulgated and it has been observed that “it now seems increasingly unlikely” that the Court will be abolished: Byrne & McCutcheon, The Irish Legal System (4th ed., Butterworths, 2001) at 'x' of the preface.

 

406

By comparison, currently the defence has no right of appeal to the Supreme Court from the decision of the Court of Criminal Appeal affirming or varying conviction unless the Court of Criminal Appeal, the Director of Public Prosecutions or Attorney General certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the appeal should be taken to the Supreme Court: s.29 of the Courts of Justice Act, 1924.

 

407

Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993), at para.25. The view taken by the Law Commission of England and Wales would appear to be that the prosecution should have a further right of appeal, with leave, to the House of Lords on a with prejudice basis: Law Commission of England and Wales, Double Jeopardy and Prosecution Appeals (LC 267, 2001) at para.7.124.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=86

 

(b) Appeals Against Successful Defence Appeals in the Court of Criminal Appeal

4.24

Currently the prosecution is not able to appeal to the Supreme Court against a successful defence appeal against conviction in the Court of Criminal Appeal.408 Again, a second appellate tier would increase delays in the resolution of cases, which would raise issues of fairness to the accused, particularly if a retrial was sought. On the other hand, it has been argued that accused persons who commence the appellate process have waived any right to a speedy disposition of their cases:

“Once the case is in appellate hierarchy there is no logical reason why the matter should not be determined – assuming that the point involved is of sufficient importance to warrant the attention of the Court – by the very highest tribunal. There can be no surprise or unfairness; the accused simply takes the appellate structure as he finds it.”409

4.25

This reasoning was applied in Darvern v Messel,410 a decision of the High Court of Australia. There, the Court held that the general words of the appeal provision in question were sufficient to found a prosecution appeal against an appellate court's quashing of a conviction:

“The question then is whether the rule against double jeopardy has any application when the accused has been convicted and has himself invoked the appellate procedure. The rule against double jeopardy is not a mere fetish, an empty formula to be applied blindly in all circumstances. It exists, as I have said, to ensure fairness and to prevent oppression. It seems to me neither unfair nor oppressive to restore a conviction that was set aside on erroneous legal grounds.”411

4.26

In relation to this issue, the Committee on Court Practice and Procedure recommended that the prosecution should have a right to seek leave to appeal on a with prejudice basis.412 The Committee reasoned that it was the defence, not the prosecution, which had brought the case before the Court of Criminal Appeal, and that the prosecution should not be denied a single right of appeal on a with prejudice basis.


408

See People (Attorney-General) v Kennedy [1946] IR 517, discussed at para.1.23 above. However, s.14 of the Courts Martial Appeals Act, 1983 does allow the prosecution to appeal without prejudice to the Supreme Court from a decision favourable to the accused of the Courts Martial Appeal Court.

 

409

Friedland, Double Jeopardy (Oxford, 1969) at 293, cited in Pattenden, “Prosecution Appeals Against Judges' Rulings” [2000] Crim LR 971, 973.

 

410

(1984) 165 CLR 21.

 

411

Ibid. at para.14, per Gibbs CJ.

 

412

Committee on Court Practice and Procedure, Twenty-Second Interim Report: Prosecution Appeals (February 1993) at para.26.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=87

 

CHAPTER FIVE: OPTIONS FOR REFORM

5.01

This chapter discusses five representative prosecution appeal models, namely:



(a)

 

A narrow without prejudice model;

 



(b)

 

A broad without prejudice model;

 



(c)

 

A narrow with prejudice model;

 



(d)

 

A broad with prejudice model;

 



(e)

 

A comprehensive with prejudice model.

5.02

The Commission is strongly of the view that the Irish law should move from the current near token system of prosecution appeals to one in which prosecution appeals would represent a real and substantial element in the criminal process. To facilitate discussion of this issue, the Commission decided to set out the benefits and drawbacks associated with the five above-mentioned options with a view to making recommendations in our Report.

5.03

Whilst there is a vast number of possible appeal models, the Commission has chosen these five options to facilitate discussion of the general principles covered in the preceding chapters. The Commission does not intend, however, to confine discussion solely to these general models, and would welcome comment on any particular model which falls between the above-mentioned categories.

A. Narrow 'Without Prejudice' Model

5.04

The 'narrow without prejudice model' may be defined as one that would restrict without prejudice prosecution appeals to questions of law arising from terminating rulings, whether arising pre-trial or during trial.

5.05

This is essentially the model embodied in section 34 of the 1967 Act, except that section 34 is even more restrictive in that only a certain category of terminating ruling is appealable, namely the directed acquittal.

5.06

The major advantages of retaining the status quo would be that: first, there would be little risk that an appeal would be oppressive to the acquitted person; and secondly, few procedural difficulties would arise.

5.07

However, there would also be disadvantages to adopting this model. In practice the narrowness of the avenue of appeal would render many important rulings unappealable. In the rare cases that it would be possible for the prosecution to bring appeals, appellate courts could only correct errors of law in the abstract,

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=89

 

potentially letting unjust verdicts stand. The combination of these two factors could eventually lead to an undermining of public confidence in the criminal justice system, particularly were the public to perceive that 'guilty' persons were being wrongfully acquitted on a regular basis.

5.08

This appeal model might also be objectionable to acquitted persons in that appellate courts could undermine the basis of acquittals, yet the acquitted persons would have no further opportunity to clear their name.

5.09

Finally, given that the appellate courts would be pronouncing on no more than moot points, it may be argued that the without prejudice appeal process would lack the urgency and reality necessary in the adversarial system.

B. Broad 'Without Prejudice' Model

5.10

The 'broad without prejudice model' may be defined as one that would allow without prejudice prosecution appeals on questions of law and questions of mixed law and fact arising from terminating and non-terminating rulings, whether arising pre-trial or during trial.

5.11

This is essentially the model adopted by the English Attorney General's Reference Scheme.

5.12

The major advantage of adopting this model would be that, unlike the narrow without prejudice model, it would eliminate the fine distinctions between terminating and non-terminating rulings, and between questions of law and questions of mixed law and fact.

5.13

However, other than curing the narrowness of the appeal avenue, this model would retain the disadvantages identified for the 'narrow without prejudice model'.

C. Narrow 'With Prejudice' Model

5.14

The 'narrow with prejudice model' may be defined as one that would restrict with prejudice prosecution appeals to questions of law arising from terminating rulings, whether arising pre-trial or during trial.

5.15

This is essentially the model adopted in Canada. It is also the model currently recommended by the Law Commission of England and Wales, although the Law Commission would not allow appeals against certain pre-trial rulings.

5.16

The major advantage of adopting this model would be that it would permit appellate courts to, not only correct errors of law in the abstract, but also quash acquittals for the purpose of achieving justice in the actual cases on appeal. By limiting this right to those rulings that have the greatest impact on the trial, namely

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=90

 

terminating rulings, the model would arguably achieve a balance between the need to achieve justice and the need to protect the accused from the risk of oppression.

5.17

However, the introduction of a with prejudice appeal scheme would be a radical innovation for this jurisdiction,413 albeit that such schemes are not uncommon in other common law and civil law jurisdictions. It may be argued that a with prejudice appeal scheme would violate the double jeopardy principle and would be oppressive to acquitted persons.

5.18

Furthermore, as with the narrow without prejudice model, difficulties may again arise as to the fine distinctions between terminating and non-terminating rulings, and between questions of law and mixed law and fact.

D. Broad 'With Prejudice' Model

5.19

The 'broad with prejudice model' may be defined as one that would allow with prejudice prosecution appeals on questions of law and questions of mixed law and fact arising from terminating and non-terminating rulings, whether arising pre-trial or during trial. However, appeals challenging the reasonableness of jury acquittals, although arguably raising questions of mixed fact and law, are excluded from the ambit of this appeal model, and are covered by the 'comprehensive with prejudice' model below.

5.20

In practice, this model is similar to the model operated in New Zealand.414

5.21

The advantage of adopting this model would be that it would eliminate the fine distinctions discussed above. There would be greater scope for appellate courts to intervene and order retrials in cases of 'unjust' acquittals, regardless of the types of erroneous legal rulings that have brought about the verdicts.

5.22

However, the extension of the scope of with prejudice appeals to include non-terminating rulings might be said to undermine the integrity of the jury verdict. It would be difficult, if not impossible, to establish whether an alleged error at trial has influenced a jury decision to acquit. Alternative appeal procedures, which would eliminate the need for appellate courts to look behind the jury verdict, might introduce undue complexity and inefficiency into the process.

E. Comprehensive 'With Prejudice' Model

5.23

The 'comprehensive with prejudice model' may be defined as one which, in addition to that permitted by the broad with prejudice model, would also permit


413

Although the Supreme Court, in the line of decisions commencing with O'Shea, recognised a constitutional avenue of appeal against acquittals, it was split as to whether retrials could be ordered.

 

414

However, the relevant provision purports to limit appeals to questions of law only.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=91

 

appeals against unreasonable jury acquittals, or even de novo reviews of trial evidence.

5.24

This is essentially the model adopted in a number of European civil law jurisdictions and the model recommended by the South African Law Commission. However, it should be noted that criminal trials are not conducted before juries either in the civil law jurisdictions or in South Africa.

5.25

The advantage of adopting this model would be that it would recognise that the jury is capable of reaching erroneous decisions on the facts in the same way that a trial judge is capable of making errors of law. Under this model, both errors could be corrected on appeal.

5.26

However, this model may be criticised on the basis that it would undermine the role of the jury as the ultimate tribunal of fact. The power of the jury to return 'perverse verdicts' would also be removed. Furthermore, appellate courts would not share the advantage enjoyed by trial courts of observing the demeanour of witnesses.

5.27

Although appeals against acquittals in the Special Criminal Court would present fewer difficulties, allowing appeals from that trial forum and not from jury trials would create an inequality between accused persons.

F. Consultation Process

5.28

The Commission is of the view, as set out in paragraph 5.02, that Irish law should move to a system in which prosecution appeals would represent a real and substantial element in the criminal process. The majority of the Commission at this initial stage are inclined to favour a with prejudice model, but would not go so far as the 'comprehensive with prejudice model'. The Commission awaits submissions and the arguments to be made at seminars before formulating its fully considered recommendations.

5.29

The Commission welcomes submissions on this Consultation Paper by 31 July, 2002.

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=92

 

APPENDIX 1 SUMMARY OF ENGLISH ATTORNEY GENERAL'S REFERENCES

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

2001, No. 2

Violent disorder

Stay of indictment on ground of delay

(1) Notwithstanding a breach of Article 6 of the European Convention on Human Rights (“ECHR”) due to delay, normally a charge should not be stayed where there has been no prejudice to the accused.

Allowed

No

[2001] 1 WLR 1869

(2) The relevant delay is usually measured from when an information has been laid before the court.

2000, No. 7

Bankruptcy; contributing to insolvency by gambling

Exclusion of documentary evidence at preliminary ruling; directed acquittal

(1) The prosecution's use of documentary evidence provided to the official receiver by the bankrupt under compulsion did not violate the bankrupt's right to a fair trial under the ECHR.

Allowed

No

[2001] 1 WLR 1879 (CA)

(2) The documents were admissible subject to the trial judge's discretion to exclude unfairly obtained evidence.

2000, No. 5

Polluting the environment

Preliminary ruling that no offence disclosed

The trial judge adopted an erroneous statutory interpretation of the term “controlled waste”.

Allowed

No

[2001] EWCA Crim 1077 (CA)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=93

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

2000, No. 4

Dangerous driving causing death

No case to answer

The voluntary action of applying the vehicle accelerator in the mistaken belief that it was the brake was sufficient to establish the actus reus of the offence, namely, voluntary driving.

Allowed

No

[2001] EWCA Crim 780 (CA)

2000, No. 3

Supply of 'Class A' drugs

Stay of proceedings on the grounds that the evidence had been obtained by entrapment

(1) The ECHR did not modify English law in relation to entrapment. (2) The trial judge was right to order a stay.

Allowed

No

[2001] 1 WLR 1879 (CA)

2000, No. 2

Possession of an offensive weapon

Directed acquittal after jury empanelled but prior to prosecution opening

The trial judge had no power to direct an acquittal on the grounds that a conviction was unlikely.

Allowed

No*

The Times, 23 November 2000 (CA)

2000, No. 1

Forgery

Preliminary ruling that no offence disclosed; prosecution offer no evidence

Whether the accused coach driver's falsely recorded tachograph could amount to a charge of forgery.

Allowed

No

[2001] WLR 331 (CA)

'*' denotes that neither the accused nor an amicus curiae appeared to argue against the Attorney-General.

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=94

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1999, No. 3

Rape, burglary, assault

Preliminary ruling excluding DNA evidence; prosecution offer no evidence

The trial judge erroneously excluded DNA evidence obtained as a result of information from an earlier DNA sample. Legislation stated that the earlier sample should have been destroyed.

Allowed

No

[2001] AC 91 (HL's)

1999, No. 2

Corporate Manslaughter (Southall rail crash)

Preliminary ruling that no offence disclosed

(1) Manslaughter by gross negligence may be proved in absence of evidence as to the defendant's state of mind. The trial ruling was erroneous.

Partially allowed, partially declined

No

[2000] QB 796 (CA)

(2) A corporation cannot be convicted of manslaughter unless an employee embodying the company can be identified as guilty of manslaughter. The trial ruling was upheld.

1999, No. 1

Intimidation of a witness

Preliminary ruling that no offence disclosed

The offence of intimidating a witness encompassed the conveying of a threat through a third party, intending that the third party convey the threat to the witness.

Allowed

Yes

[2000] 1 QB 365 (CA)

1998, No.3

Burglary and affray

Directed acquittal following defence evidence

Where the accused was insane at the time of the offence, the prosecution was not required to prove the accused's mens rea.

Allowed

Yes

[2000] QB 401 (CA)

1998, No.2

Making false statement to company examiners

Preliminary ruling excluding evidence obtained from the accused

The trial judge erroneously limited the power of the examiner to require explanations from the accused.

Allowed

No

[2000] QB 412 (CA)

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=95

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1998, No.1

Drug trafficking

Preliminary ruling that no offence disclosed; prosecution offered no evidence

The accused agreed to look after a parcel. It was sufficient that the accused knew the parcel might contain controlled drugs.

Allowed

No

163 JP 390 (CA)

1996, No.1

Breach of planning enforcement order

Preliminary ruling that no offence disclosed; prosecution offered no evidence

An enforcement order prohibited shooting on more than 28 days in a calendar year. The trial judge erroneously excluded evidence of shooting taking place within the calendar year but prior to the notice taking effect.

Allowed

No

(1997) 1 PLR 96 (CA)

1995, No.2

Influencing prostitutes' movements

No case to answer

It was not necessary to prove that the accused, who operated a call-girl agency, persuaded or compelled the prostitutes' movements. It was sufficient that the accused was the controlling mind of the agency.

Allowed

No

[1996] 3 All ER 860 (CA)

1995, No. 1

Offence against the Banking Act

No case to answer

Ignorance that certain banking transactions required the consent of the Bank of England was an error of law, and was no defence.

Allowed

No

[1996] 4 All ER 21 (CA)**

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=96

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1994, No.3

Murder

No case to answer

The accused stabbed the mother of a child in utero. The child was born and died as a consequence of injuries to the mother. It was not necessary for the child to have been born at the time of the act causing death. It was sufficient that the accused had an intention to kill / cause serious harm to the mother.

Allowed

No

[1996] 2 All ER 10 (CA)**

1994, No.2

Polluting the environment

Preliminary ruling excluding evidence; prosecution offered no evidence

The trial judge adopted too strict an interpretation of a statutory requirement that evidential water samples be dealt with “there and then”. It was sufficient that the samples be dealt with at or approximate to the site.

Allowed

Yes

[1995] 2 All ER 1000 (CA)**

1994, No.1

Polluting the environment

No case to answer in relation to one accused; jury acquittal in relation to two further accused

(1)The directed acquittal was erroneous. A sewage company, which had set up and owned a system to carry out its statutory duties, could be said to have caused pollution that passed through that system. There was no need for a positive act.

Allowed

No

[1995] 2 All ER 1007 (CA)

(2) The summing up was erroneous. More than one party could cause pollution by separate acts.

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=97

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1992, No.3

Attempted aggravated arson

No case to answer

Where the charge was one of attempted aggravated arson, whilst it was necessary that there be proof that the accused intended to cause damage to the property, it was sufficient that mere recklessness was established as to whether the life of another was endangered.

Allowed

No

[1994] 2 All ER 121 (CA)**

1992, No.2

Dangerous driving

Jury acquittal after trial judge left defence of automatism to the jury

Psychological evidence that the accused was “driving without awareness” was insufficient to ground a defence of automatism.

Allowed

No

[1994] QB 91 (CA)**

1992, No.1

Attempted rape

Directed acquittal during defence counsel's closing speech

In order to raise a prima facie case of attempted rape, it was not necessary to prove that the accused had gone as far as intentionally attempting physical penetration.

Allowed

No

[1993] 2 All ER 190 (CA)**

1991, No.1

Unauthorised computer access

No case to answer

The offence of unauthorised access with intent to commit the crime of false accounting did not require access involving a second computer.

Allowed

No

[1993] QB 94 (CA)

1990, No.1

Assault

Pre-trial ruling granting stay on grounds of delay

A 27-month delay was not unjustified in the circumstances. A stay should be ordered only where the delay is exceptional

Allowed

No

[1992] 1 QB 630 (CA)

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=98

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1988, No.2

Environment polluting; breach of licence

No case to answer

(1) The trial judge correctly held that the relevant condition of the licence was ultra vires in that it purported to prohibit all public nuisances.

Partially allowed, partially declined

No

[1990] QB 77 (CA)

(2) The trial judge erroneously held that the nuisance need to be traced back to the failure of management.

1988, No.1

Insider dealing

No case to answer

It was unnecessary for the accused, who received unsolicited insider information, to have procured the information.

Allowed

No

[1989] 1 AC 971 (HL's)

1985, No.1

Theft

No case to answer

An employee made a secret profit by the sale of goods on his employer's premises. The trial judge correctly ruled that the employer had no proprietary interest in the secret profits, nor was the employee a trustee of the secret profits for the employer.

Declined

Yes

[1986] 1 QB 491 (CA)

1983, No.3

Affray

No case to answer

It was not necessary that a bystander be present. An innocent victim of the affray could constitute a bystander.

Allowed

Yes

[1985] 1 QB 242 (CA)

1983, No.2

Possession of explosives

Jury acquittal after trial judge left self-defence to the jury

Explosives could be possessed for the lawful purpose of self-defence against an imminent and apprehended attack.

Declined

Yes

[1984] 1 All ER 988 (CA)**

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=99

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1983, No.1

Theft

No case to answer

An employee received a direct debit overpayment from their employer and intentionally failed to repay it. The chose in action was capable of being stolen and the employee was under an obligation to repay the sum under the principles of restitution.

Allowed

No

[1984] 3 All ER 369 (CA)**

1982, No.2

Theft from the accused's company

No case to answer

The accused, who were in total control of the company as directors and shareholders, were capable of stealing from the company.

Allowed

No

[1984] 2 All ER 216 (CA)**

1982, No.1

Conspiracy to defraud

No case to answer

There was no jurisdiction to prosecute as, although the conspiracy was formed in England, the object was to defraud potential buyers abroad, and the damage to an English company was only incidental.

Declined

No

[1983] 1 QB 751 (CA)**

1981, No.1

Importation of cannabis

No case to answer

The charge of fraudulent evasion of the customs prohibition on the importation of cannabis did not require that a customs officer be present and that the accused deceive that officer.

Allowed

Yes

[1982] QB 848 (CA)

1980, No.6

Assault

Jury acquittal after trial judge left the defence of consent to the jury

The defence of consensual fighting is not available where actual bodily harm was intended or caused.

Allowed

Yes

[1981] QB 715 (CA)**

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=100

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1980, No.5

Obscene publications

No case to answer

A video-cassette was a “film or other record”, and therefore the article was capable of being published.

Allowed

No

[1980] 3 All ER 816 (CA)**

1980, No.4

Manslaughter

No case to answer

It was not necessary that the prosecution prove which of three alternatives was the cause of death, provided each act was sufficient to establish manslaughter.

Allowed

No

[1981] 2 All ER 617 (CA)**

1980, No.3

Possession of rifle

Directed acquittal at the end of expert evidence

Re the correct statutory interpretation of “shotgun”: a rifle that had the rifling removed and was altered to take shotgun cartridges was a legal “shotgun”.

Declined

No

[1980] 3 All ER 273 (CA)

1980, No.2

Forgery

No case to answer

A police officer falsified a witness statement and tendered it in evidence at a trial. It was not necessary that the forgery had taken place at the actual time when “the document... was made evidence by law”.

Allowed

No

[1981] 1 All ER 493 (CA)**

1980, No.1

False accounting

No case to answer

A loan application was “required” for accounting purposes notwithstanding that the information would not be inputted until the loan application was accepted.

Allowed

Yes

[1981] 1 All ER 366 (CA)**

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=101

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1979, No.4

Receiving stolen goods

No case to answer

The accused received a cheque from a thief's bank account that contained a mix of legitimate and stolen funds. As there was sufficient legitimate funds to cover the payment, it was not possible to infer that the payment was from stolen funds merely from the intention of the receiver to receive stolen funds.

Declined

No

[1981] 1 All ER 1193 (CA)**

1979, No.3

Criminal deception as to the value of work done

Evidence from police officer excluded at a voir dire; no case to answer

A constable was entitled to refresh his memory from full notes written up shortly after an interview and was not restricted to referring to jottings made during the interview.

Allowed

Yes

(1979) 69 Cr App Rep 411 (CA)

1979, Nos.1&2

Burglary

No case to answer

It is not necessary to specify and prove that a burglar intended to steal a specific object.

Allowed

Yes

[1980] QB 180 (CA)

1977, No.3

Obscene publications

Jury acquittal after trial judge allowed defence of “public good”

The term “in the interests of learning” meant that the publication should be a product of scholarship, rather than merely sex education.

Allowed

No

[1978] 3 All ER 1166 (CA)

1977, No.2

Breach of Act enforcing UN sanctions

No case to answer

Soliciting individual members of the public to emigrate to Southern Rhodesia amounted to soliciting “members of the public generally”.

Allowed

No

[1978] 2 All ER 646 (CA)

1977, No.1

Possession of cannabis resin

No case to answer

Separation of the cannabis leaves and stalk, which contained resin, from the plant did not constitute the separation of resin.

Declined

No

[1978] 1 All ER 649 (CA)

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=102

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1976, No.1

Drink driving

No case to answer

Breath testing was prohibited when the suspect was a patient at a hospital. However, it was permitted in the hospital car park as the suspect left outpatient treatment.

Allowed

No

[1977] 3 All ER 557 (CA)

1975, No.3

Customs; recklessly making a false declaration

Trial judge refuses a qualified guilty plea with a reservation that the accused acted without recklessness

The trial judge erroneously held that the legislation only created one offence. Two offences were created, one summary (without recklessness) and one indictable (requiring recklessness).

Allowed

No

[1976] 2 All ER 798 (CA)

1975, No.2

Obscene publications

Contradictory pre-trial rulings and trial rulings (by different judges) re no case to answer

The accused distributor of an obscene film to a cinema licensee did not publish the film to the cinema audience (unusually, the Attorney General had brought the appeal in support of the trial judge's ruling, as it conflicted with another lower court ruling).

Allowed, affirming the trial judge's ruling

Yes

[1976] 2 All ER 753 (CA)

1975, No.1

Aiding and abetting drink driving

No case to answer

Procuring another person to unwittingly commit the offence of drink driving was an offence notwithstanding the absence of communication (the accused had laced the drink driver's drink).

Allowed

Yes

[1975] QB 773 (CA)**

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=103

 

Ref. No.

Alleged Offence

Method of acquittal

Ruling on Appeal

Allowed/Declined

Amicus Curiae

Citation

1974, No.2

Drink driving

No case to answer

The trial ruling was correct in that a breath test is invalidated where a constable fails to follow test instructions due to ignorance (issuing a breath test immediately after the driver had been smoking). However, the trial judge should have left to the jury whether the driver was smoking “immediately” prior to the test.

Partially declined, partially allowed

Yes

[1975] 1 All ER 658 (CA)

1974, No.1

Handling stolen goods

No case to answer

A constable, upon discovering stolen goods in an empty car, disabled the car to await the arrival of the suspect. It was for the jury, not the trial judge, to decide whether the constable had taken legal custody of the stolen goods.

Allowed

Yes

[1974] QB 744 (CA)**

'**' denotes that the case is cited in Smith & Hogan, Criminal Law (9th ed., 1999, Butterworths).

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=104

 

APPENDIX 2 SUMMARY OF CANADIAN PROSECUTION APPEALS 2000-2002

Case Name

Alleged Offence

Method of acquital

Issue On Appeal

Allowed/Declined

New Trial Ordered

Citation

R v Jourdain (M)

Keeping a common gaming house

Acquittal by judge alone

Whether the trial judge erred in law in concluding that the criminal law did not extend to a person who failed or refused to comply with the provincial scheme regulating gambling.

Allowed

Yes

(2001) 150 OCA 414 (Ontario CA)

R v L (D W)

Assault / sexual assault

Stay

Re: the “right to make answer and defence” under the Canadian Charter of Rights and Freedoms. Whether the trial judge should have ordered discovery of the complainant's diaries, and should have granted a stay on grounds that the diaries had been destroyed.

Allowed

Yes

(2001) 156 CCC (3d) 152 (Nova Scotia CA)

R v Budai

Murder

Jury acquittal

Re: jury bias. The accused and a juror made inappropriate eye contact during the trial. There was also fresh evidence that the juror and the accused had a relationship.

Allowed

Yes

(2001) 154 CCC (3d) 289 (British Columbia CA)

R v Tessier

Second degree murder

Acquittal by judge alone

Whether a confession should have been excluded on grounds of oppression.

Declined

No

2002 Can Sup Ct LEXIS 6 (Supreme Court)

R v Robicheau (MD)

Sexual assault

Acquittal by judge alone

Re: the meaning of “sexual assault”. The accused was convicted of assault but acquitted of sexual assault.

Allowed

Yes

(2001) 193 NSR (2d) 42 (Nova Scotia CA)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=105

 

Case Name

Alleged Offence

Method of acquital

Issue On Appeal

Allowed/Declined

New Trial Ordered

Citation

R v Blazic

Impaired driving

Acquittal by judge alone

Whether the trial judge committed an error of law in his application of the standard of proof. Held: not a “question of law alone”.

Declined

No

2001 Alta D Criminal J 242 (Alta QB)

R v Guttman

Conspiracy to import narcotics

Jury acquittal

Whether the trial judge should have ruled evidence inadmissible where it was obtained under an illegal interception warrant (violating the Charter of Rights and Freedoms). Held: not a “question of law alone”.

Declined

No

(2001) 152 CCC (3d) 447 (Supreme Court)

R v J (GP)

Child sexual abuse

Acquittal by judge alone

Re: the trial judge's use of complainant's counselling records in assessing the complainant's credibility. Held: not a “question of law alone”.

Declined

No

(2001) 151 CCC (3d) 382 (Manitoba CA)

R v Cabral (JM)

Impaired/ dangerous driving causing death / injury

Acquittal by judge alone

The accused was convicted of drink driving but acquitted of causing the death and injury. Held: there was evidence upon which the trial judge could have reached the finding, and hence there was no “question of law alone”.

Declined

No

(2001) 153 Man R (2d) 115 (Manitoba CA)

R v Araujo

Drug trafficking

Acquittal by judge alone

Whether the trial judge correctly excluded evidence obtained by way of a wiretap on the grounds that the authorisation for the wiretap was based on a misleading and erroneous affidavit.

Allowed

Yes

(2000) 149 CCC (3d) 449 (Supreme Court)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=106

 

Case Name

Alleged Offence

Method of acquital

Issue On Appeal

Allowed/Declined

New Trial Ordered

Citation

R v Creswell

Laundering proceeds of crime

Stay

Whether the trial judge erred in ordering the prosecution to disclose a legal opinion as to the legality of a sting operation.

Allowed

Yes

(2000) 149 CCC (3d) 286 (British Columbia CA)

R v S (G)

Child sexual abuse

Acquittal by judge alone

Whether the trial judge was correct to limit prosecution cross-examination of the accused. Whether the prosecution was required to prove specific intent. (There was also a challenge to the credibility of witnesses, but this was not a “question of law alone”.

Declined

No

(2000) 47 WCB (2d) 561 (New Brunswick CA)

R v Sparks (R.)

Drug trafficking

Acquittal by judge alone

The correct inference to be drawn from the evidence was a question of fact, not a “question of law alone”.

Declined

No

(2000) 188 NSR (2d) 170 (Nova Scotia CA)

R v Brunczlik (S)

Not stated

Acquittal by jury (on grounds of insanity)

Whether the trial judge's decision to exclude a statement of the accused was unreasonable.

Declined

No

(2000) 131 OAC 144 (Ontario CA)

R v Czarnecki

Firearms offences

Dismissed after preliminary hearing

Whether direct evidence of intent to endanger life was required, or whether it could be inferred. The appeal was not decided on the merits, however, as it was out of time.

Declined

No

(2000) 143 CCC (3d) 179 (Manitoba CA)

R v B (FC)

Historical child sexual abuse

Stay

Whether trial judge was correct to grant a stay on the grounds that an earlier prosecution file had been destroyed.

Allowed

Yes

(2000) 142 CCC (3d) 540 (Nova Scotia CA)

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=107

 

APPENDIX 3 SUMMARY OF NEW ZEALAND PROSECUTION APPEALS 1982-2002

Case Name

Alleged Offence

Method of acquital

Issue On Appeal

Allowed/Declined

New Trial Ordered

Citation

R v Karpavicius

Conspiring to import drugs

Directed acquittal

Where there was sufficient evidence that the accused conspired to import either Class A or B but insufficient evidence as to which Class, the trial judge should have directed the jury to convict on the residual offence contained in the legislation.

Allowed

Yes

[2001] 3 NZLR 41

R v Cole

Burglary

Directed acquittal

In what circumstances should the 'doctrine of recent possession' be put to the jury? The Court declined to answer the question on the ground that an unhelpful question had been posed in the case-stated.

Declined

No

[1999] NZCA 230

R v Tauilili

Child abduction

Directed acquittal

Whether a father of a child who failed to return a child after access could be convicted of abduction.

Allowed

Yes

[1997] 1 NZLR 525

R v McFarlane

Wilful damage

Jury acquittal

Whether the trial judge should have excluded voice recognition evidence.

Partially allowed

No

Unreported Court of Appeal, 8 December 1995, CA430/95

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=109

 

Case Name

Alleged Offence

Method of acquital

Issue On Appeal

Allowed/Declined

New Trial Ordered

Citation

R v Sew Hoy

Conspiracy to defraud customs

Directed acquittal

Whether the trial judge was correct to direct an acquittal on the grounds of impossibility.

Allowed

Yes

[1994] 1 NZLR 257

R v Accused (CA160/92)

Child sexual abuse

Directed acquittal

Whether the specimen counts were sufficiently specific to proceed.

Allowed

Yes

[1993] 1 NZLR 385

R v Renata

Manslaughter

Jury acquittal

Whether the trial judge misdirected the jury as to the elements of aiding and abetting manslaughter.

Allowed

No

[1992] 2 NZLR 346

R v Kirifi

Arson

Directed acquittal

Whether both confession and 'real' evidence should have been excluded on the grounds that the accused was not informed of his right to legal counsel.

Declined

No

[1992] 2 NZLR 8

R v Duncan

Child sexual abuse

Jury acquittal

Whether recent complaint evidence should have been excluded on the grounds that it had been obtained by leading questions.

Declined

No

[1992] 1 NZLR 528

R v Accused (CA423/90)

Child sexual abuse

Directed acquittal

Whether the specimen counts were insufficient on the grounds of duplicity and lack of particularity.

Allowed

Yes

[1991] 3 NZLR 513

R v Myatt

Unlawful and dangerous manslaughter

Jury acquittal

Whether the trial judge correctly charged the jury as to the elements of unlawful and dangerous manslaughter.

Partially allowed

No

[1991] 1 NZLR 674

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=110

 

Case Name

Alleged Offence

Method of acquital

Issue On Appeal

Allowed/Declined

New Trial Ordered

Citation

R v Collins

Confiscation of proceeds of crime

Confiscation order refused

Whether the trial judge erred by ordering the return of the proceeds of the crime.

Declined

N/A

[1990] 2 NZLR 287

R v Hughes

Drug dealing

Directed acquittal

Whether the prosecution was required to reveal the identity of an undercover witness.

Partially allowed

Yes

[1986] 2 NZLR 129

R v Metuariki

Possession of Class A drugs

Jury acquittal

Whether the trial judge was correct to direct the jury that the prosecution was required to prove that the accused knew that substance contained a controlled drug.

Partially allowed

No

[1986] 1 NZLR 488

R v Jones

Dangerous driving causing death

Jury acquittal

Whether the trial judge was correct to direct the jury that the accused must have had actual knowledge of the danger he was causing.

Allowed

Yes

[1986] 1 NZLR 1

R v Grime

Importation of heroine

Discharge (pursuant to s.357 of the Crimes Act)

There was no jurisdiction to hear an appeal where the accused had been discharged under s.347.

Jurisdiction declined

No

[1985] 2 NZLR 265

R v McCurdy

Confiscation of property

Confiscation order refused

Whether the trial judge erred in refusing a confiscation order where the property was owned by a company controlled by the accused.

Declined

N/A

[1983] NZLR 551

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=111

 

THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

APPENDIX 4: LIST OF LAW REFORM COMMISSION PUBLICATIONS

First Programme for Examination of Certain Branches of the Law with a View to their Reform (December 1976) (Prl. 5984)

€0.13

Working Paper No. 1-1977, The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises (June 1977)

€1.40

Working Paper No. 2-1977, The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (November 1977)

€1.27

Working Paper No. 3-1977, Civil Liability for Animals (November 1977)

€3.17

First (Annual) Report (1977) (Prl. 6961)

€0.51

Working Paper No. 4-1978, The Law Relating to Breach of Promise of Marriage (November 1978)

€1.27

Working Paper No. 5-1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse (December 1978)

€1.27

Working Paper No. 6-1979, The Law Relating to Seduction and the Enticement and Harbouring of a Child (February 1979)

€1.90

Working Paper No. 7-1979, The Law Relating to Loss of Consortium and Loss of Services of a Child (March 1979)

€1.27

Working Paper No. 8-1979, Judicial Review

 

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

of Administrative Action: the Problem of Remedies (December 1979)

€1.90

Second (Annual) Report (1978/79) (Prl. 8855)

€0.95

Working Paper No. 9-1980, The Rule Against Hearsay (April 1980)

€2.54

Third (Annual) Report (1980) (Prl. 9733)

€0.95

First Report on Family Law – Criminal Conversation, Enticement and Harbouring of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, Seduction of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC 1-1981) (March 1981)

€2.54

Working Paper No. 10-1981, Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (September 1981)

€2.22

Fourth (Annual) Report (1981) (Pl. 742)

€0.95

Report on Civil Liability for Animals (LRC 2-1982) (May 1982)

€1.27

Report on Defective Premises (LRC 3-1982) (May 1982)

€1.27

Report on Illegitimacy (LRC 4-1982) (September 1982)

€4.44

Fifth (Annual) Report (1982) (Pl. 1795)

€0.95

Report on the Age of Majority, the Age for Marriage and Some Connected Subjects (LRC 5-1983) (April 1983)

€1.90

Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters (LRC 6-1983) (November 1983)

€1.27

Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7-1983) (December 1983)

€1.90

Report on Divorce a Mensa et Thoro and Related Matters (LRC 8-1983) (December

 

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

1983)

€3.81

Sixth (Annual) Report (1983) (Pl. 2622)

€1.27

Report on Nullity of Marriage (LRC 9-1984) (October 1984)

€4.44

Working Paper No. 11-1984, Recognition of Foreign Divorces and Legal Separations (October 1984)

€2.54

Seventh (Annual) Report (1984) (Pl. 3313)

€1.27

Report on Recognition of Foreign Divorces and Legal Separations (LRC 10-1985) (April 1985)

€1.27

Report on Vagrancy and Related Offences (LRC 11-1985) (June 1985)

€3.81

Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters (LRC 12-1985) (June 1985)

€2.54

Report on Competence and Compellability of Spouses as Witnesses (LRC 13-1985) (July 1985)

€3.17

Report on Offences Under the Dublin Police Acts and Related Offences (LRC 14-1985) (July 1985)

€3.17

Report on Minors' Contracts (LRC 15-1985) (August 1985)

€4.44

Report on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (LRC 16-1985) (August 1985)

€2.54

Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors (LRC 17-1985) (September 1985)

€3.81

Report on the Liability in Tort of Mentally Disabled Persons (LRC 18-1985) (September 1985)

€2.54

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

Report on Private International Law Aspects of Capacity to Marry and Choice of Law in Proceedings for Nullity of Marriage (LRC 19-1985) (October 1985)

€4.44

Report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees, and the Hague Convention on the Celebration and Recognition of the Validity of Marriages (LRC 20-1985) (October 1985)

€2.54

Eighth (Annual) Report (1985) (Pl. 4281)

€1.27

Report on the Statute of Limitations: Claims in Respect of Latent Personal Injuries (LRC 21-1987) (September 1987)

€5.71

Consultation Paper on Rape (December 1987)

€7.62

Report on the Service of Documents Abroad re Civil Proceedings -the Hague Convention (LRC 22-1987) (December 1987)

€2.54

Report on Receiving Stolen Property (LRC 23-1987) (December 1987)

€8.89

Ninth (Annual) Report (1986-1987) (Pl. 5625)

€1.90

Report on Rape and Allied Offences (LRC 24-1988) (May 1988)

€3.81

Report on the Rule Against Hearsay in Civil Cases (LRC 25-1988) (September 1988)

€3.81

Report on Malicious Damage (LRC 26-1988) (September 1988)

€5.08

Report on Debt Collection: (1) The Law Relating to Sheriffs (LRC 27-1988) (October 1988)

€6.35

Tenth (Annual) Report (1988) (Pl. 6542)

€1.90

Report on Debt Collection: (2) Retention of Title (LRC 28-1988) (April 1989)

€5.08

Report on the Recognition of Foreign Adoption Decrees (LRC 29-1989) (June

 

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

Report on Land Law and Conveyancing Law: (3) The Passing of Risk from Vendor to Purchaser (LRC 39-1991) (December 1991); (4) Service of Completion Notices (LRC 40-1991) (December 1991)

€7.62

Thirteenth (Annual) Report (1991) (PI. 9214)

€2.54

Report on the Crime of Libel (LRC 41-1991) (December 1991)

€5.08

Report on United Nations (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC-42) (May 1992)

€10.16

Report on The Law Relating to Dishonesty (LRC 43-1992) (September 1992)

€25.39

Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44-1992) (October 1992)

€7.62

Consultation Paper on Sentencing (March 1993)

€25.39

Consultation Paper on Occupiers' Liability (June 1993)

€12.70

Fourteenth (Annual) Report (1992) (PN. 0051)

€2.54

Report on Non-Fatal Offences Against The Person (LRC 45-1994) (February 1994)

€25.39

Consultation Paper on Family Courts (March 1994)

€12.70

Report on Occupiers' Liability (LRC 46-1994) (April 1994)

€7.62

Report on Contempt of Court (LRC 47-1994) (September 1994)

€12.70

Fifteenth (Annual) Report (1993) (PN. 1122)

€2.54

Report on the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (LRC 48-1995) (February 1995)

€12.70

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

1989)

€6.35

Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30-1989) (June 1989)

€6.35

Consultation Paper on Child Sexual Abuse (August 1989)

€12.70

Report on Land Law and Conveyancing Law: (2) Enduring Powers of Attorney (LRC 31-1989) (October 1989)

€5.08

Eleventh (Annual) Report (1989) (Pl. 7448)

€1.90

Report on Child Sexual Abuse (LRC 32-1990) (September 1990)

€8.89

Report on Sexual Offences against the Mentally Handicapped (LRC 33-1990) (September 1990)

€5.08

Report on Oaths and Affirmations (LRC 34-1990) (December 1990)

€6.35

Report on Confiscation of the Proceeds of Crime (LRC 35-1991) (January 1991)

€7.62

Consultation Paper on the Civil Law of Defamation (March 1991)

€25.39

Report on the Hague Convention on Succession to the Estates of Deceased Persons (LRC 36-1991) (May 1991)

€8.89

Twelfth (Annual) Report (1990) (Pl. 8292)

€1.90

Consultation Paper on Contempt of Court (July 1991)

€25.39

Consultation Paper on the Crime of Libel (August 1991)

€13.97

Report on the Indexation of Fines (LRC 37-1991) (October 1991)

€8.25

Report on the Civil Law of Defamation (LRC 38-1991) (December l99l)

€8.89

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

Consultation Paper on Intoxication as a Defence to a Criminal Offence (February 1995)

€12.70

Report on Interests of Vendor and Purchaser in Land during the period between Contract and Completion (LRC 49-1995) (April 1995)

€10.16

An Examination of the Law of Bail (LRC 50-1995) (August 1995)

€12.70

Sixteenth (Annual) Report (1994) (PN. 1919)

€2.54

Report on Intoxication (LRC 51-1995) (November 1995)

€2.54

Report on Family Courts (LRC 52-1996) (March 1996)

€12.70

Seventeenth (Annual) Report (1995) (PN. 2960)

€3.17

Report on Sentencing (LRC 53-1996) (August 1996)

€10.16

Consultation Paper on Privacy: Surveillance and the Interception of Communications (September 1996)

€25.39

Report on Personal Injuries (LRC 54-1996) (December 1996)

€12.70

Eighteenth (Annual) Report (1996) (PN. 3760)

€7.62

Consultation Paper on the Implementation of The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (September 1997)

€12.70

Report on The Unidroit Convention on Stolen or Illegally Exported Cultural Objects (LRC 55-1997)(October 1997)

€19.05

Report on Land Law and Conveyancing Law; (6) Further General Proposals including the execution of deeds (LRC 56-1998) (May

 

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

1998)

€10.16

Consultation Paper on Aggravated, Exemplary and Restitutionary Damages (May 1998)

€19.05

Nineteenth (Annual) Report (1997) (PN. 6218)

€3.81

Report on Privacy: Surveillance and the Interception of Communications (LRC 57-1998)(June 1998)

€25.39

Report on The Implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (LRC 58-1998) (June 1998)

€12.70

Consultation Paper on The Statutes of Limitation: Claims in Contract and Tort in Respect of Latent Damage (Other Than Personal Injury) (November 1998)

€6.35

Twentieth (Annual) Report (1998) (PN. 7471)

€3.81

Consultation Paper on Statutory Drafting and Interpretation: Plain Language and the Law (LRC CP14-1999) (July 1999)

€7.62

Consultation Paper on Section 2 of the Civil Liability (Amendment) Act, 1964: The Deductibility of Collateral Benefits from Awards of Damages (LRC CP15-1999) (August 1999)

€9.52

Report on Gazumping (LRC 59-1999) (October 1999)

€6.35

Twenty First (Annual) Report (1999) (PN. 8643)

€3.81

Report on Aggravated, Exemplary and Restitutionary Damages (LRC 60-2000) (August 2000)

€7.62

Second Programme for examination of certain branches of the law with a view to their reform: 2000-2007 (PN 9459) (December 2000)

€6.35

 

THIS IS AN ORIGINAL PAGE-BREAK:

PAGE NUMBER=0

 

Consultation Paper on the Law of Limitation of Actions arising from Non-Sexual Abuse Of Children (LRC CP16-2000) (September 2000)

€7.62

Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61-2000) (December 2000)

€7.62

Report on the Rule against Perpetuities and Cognate Rules (LRC 62-2000) (December 2000)

€10.16

Report on the Variation of Trusts (LRC 63-2000) (December 2000)

€7.62

Report on The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent Damage (Other than Personal Injury) (LRC 64-2001) (March 2001)

€7.62

Consultation Paper on Homicide: The Mental Element in Murder (LRC CP17-2001) (March 2001)

€6.35

Seminar on Consultation Paper: Homicide: The Mental Element in Murder (LRC SP 1-2001)

 

Twenty Second (Annual) Report (2000) (PN. 10629)

€3.81

Consultation Paper on Penalties for Minor Offences (LRC CP18-2002) (March 2002)

€5.00

 


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/other/IELRC/2002/2.html