Retrial Post-Conviction
Cases
The People (Attorney General) v. Griffin
FitzGerald C.J.; Walsh J. [1974] IR 416
Supreme Court
FITZGERALD C.J. :
10 May
I have read the judgment of Mr. Justice Henchy and I agree with it.
WALSH J. :
I also have read the judgment and agree with it.
HENCHY J. :
It was agreed in the Court of Criminal Appeal and in this Court that, on the authority of The People (Attorney General v. Kennedy 4, it was essential for the prosecution to prove the statutory instrument in question. That could have been done in either of the ways laid down5 by s. 4 of the Documentary Evidence Act, 1925. No attempt was made to prove it in either of those ways or in any other way, although counsel for the appellant, relying on Kennedy’s Case 4, applied at the end of the prosecution case for a direction on the ground of that missing proof. The trial judge refused the application whereupon, no evidence having been tendered by the defence, the case proceeded to a conviction by the jury.
Counsel for the prosecution conceded in the Court of Criminal Appeal that the matter was ruled by the decision in Kennedy’s Case 4 to the effect that, in the absence of proof of the making of the relevant statutory instrument, the conviction could not stand; accordingly, that court quashed the conviction. But the Court of Criminal Appeal refused to follow its decision in Kennedy’s Case 4 to the extent of giving the appellant an outright discharge. Instead, purporting to rely on dicta in the minority judgment of Lavery J. in The People (Attorney General) v. Quinn 6, it ordered a retrial.
It is agreed that an order of retrial in those circumstances is unprecedented. Counsel for the Attorney General, notwithstanding the wording7 of s. 5, sub-s. 1(b), of the Courts of Justice Act, 1928, finds himself unable to argue in this Court that the Court of Criminal Appeal has power to order a retrial when quashing a conviction because of the prosecution’s default in giving necessary proof of a statutory instrument. I too find myself unable to support the order of retrial.
While there are many examples of the unqualified quashing of convictions where evidential proofs were wanting because of the prosecution’s default, there seems to be no recorded case where a retrial was ordered in such circumstances. The reason would appear to be that s. 5, sub-s. 1(b), of the Act of 1928 was passed to enable the Court of Criminal Appeal to order a retrial when the quashed conviction resulted not from the inadequacy of the prosecution case but from a faulty trial (e.g.,misdirection, inadmissible evidence, procedural irregularity) which, but for such fault, might have led to a supportable conviction. So far as I know, the section has never hitherto been judicially treated as authorising a retrial for the purpose of enabling the prosecution to mend its hand by presenting evidence at the retrial which ought reasonably to have been given at the first trial I use the word “reasonably” because of the decision in The Attorney General v. Cleary .8
It seems to me that any wider interpretation of the jurisdiction to order a retrial would be outside the intendment of the legislature. In the present case the Court of Criminal Appeal considered that the jurisdiction extends to cases where the conviction is quashed because of the prosecution’s failure to adduce an essential proof if it was merely a technical error. But where is the line to be drawn? The boundary between what is and what is not a technicality is hopelessly blurred. To limit the jurisdiction to order a retrial by that test would be to introduce uncertainty into an area of the criminal law where reasonable certainty is required. A more fundamental ground of objection is that, if the section is held to authorise a retrial merely to enable the prosecution to proceed afresh against an accused on evidence augmented by what was neglected to be tendered at the first trial, it would become an instrument of harassment. A construction of the section leading to that result would be contrary to the rule of interpretation that a penal provision such as this should be deemed to be intended to restrict as little as possible the pre-existing rights of the individual.
In my opinion, when a conviction in quashed because the prosecution failed to tender the evidence necessary to sustain a conviction, the accused should not be subjected to the worry of a retrial in which the prosecution could mend its hand, unless there is clear statutory authority for such a course. Section 5 of the Act of 1928 provides no such authority.
Counsel for the Attorney General has made it clear that, in not arguing in support of the order of retrial in this case, he does not concede that a retrial may never be ordered when a conviction has been quashed as a result of the failure of the prosecution to adduce all necessary evidence to support a conviction. For my part I would point out that, when at the trial counsel for the appellant applied for a direction on the ground that the statutory instrument had not been proved, it was open to the trial judge either to direct an acquittal or to allow the necessary evidence to be given notwithstanding that the case for the prosecution had been closed. He refused a direction, and counsel for the prosecution made no application to be allowed to adduce the necessary evidence. It is in those circumstances that I consider the order of retrial to be outside the jurisdiction created by s. 5 of the Act of 1928. For those reasons I am of opinion that the appeal should be allowed.