The fact remains that the Deputy did not divide the House against the sub-section which stood in the Bill at the time. Now I come to Deputy de Valera's arguments, or what pass for arguments, and the first of them is that this is doing away with an old legal formality. That is the best way in which I can, I think, abbreviate the Deputy's argument. That is not so. This Court of Criminal Appeal is a court which up to a very short time ago was unknown in this country, or in any other country which administered a code of criminal law similar to the code which we administer, and based upon that code. The Court of Criminal Appeal is, in this country, an extremely new thing created by the Courts of Justice Act. There has been no time for legal formalities to grow up. Certain defects were shown, and it is these defects, which have been shown in action, that we are seeking here to remedy. I might say that in the two countries, England and Scotland, where more or less the same laws exist, where also by statute a Court of Criminal Appeal was set up, it has been found necessary to have a section of that nature, in one case an amending Act and in the other the very Act which created the court. We find on the one side the statement by the Deputy that this is doing away with old-established legal formalities, and we have on the other side the experience, not only of our own courts, the practical experience in this country, but we are also fortified and strengthened by the experience of other countries in the belief that such a section is necessary. The Deputy again says that this section is unnecessary because sufficient remedies are put in sub-section (b). I have already in this House explained the difference between what is now contained in sub-section (a) and what is now contained in sub-section (b). I think I did so fairly fully, but since the Deputy certainly has not dealt with the matter in a fashion which would lead me to believe that he had either listened to, or, if he listened to, had followed the argument I was endeavouring to put to the Dáil, I will repeat my argument. My argument was this: These two sub-sections are concerned with quite a different state of affairs.
It may be that the judges are clearly of opinion that there is a very trifling matter—that the judge has allowed in a piece of immaterial evidence that could not have weighed upon the minds of the jury at all, or something of that kind. Then a retrial is a great deal too big and too cumbersome a procedure. They see that a small mistake has been made, some little immaterial thing has been done which could not have affected the minds of the jury in finding the prisoner guilty, and in those circumstances if the court are perfectly satisfied that no miscarriage of justice has taken place, then it is, I submit to the House, quite right and proper, seeing that on an immaterial issue or an immaterial point a mistake has been made and that no injustice is being done to the prisoner, that the court should uphold the verdict of the jury. Another case arises; that is the case which arises under sub-section (b). I will only deal with that very shortly. There something has gone wrong. Let me make the illustration again which I have used before. The court is not satisfied on a piece of evidence that has been admitted and the court cannot make up its mind; it cannot say as to whether if that bit of evidence had not been admitted the jury would inevitably have convicted. It is in a case like that that the court would order a new trial. But you must bear in mind that a new trial is absolutely necessary in order that justice shall be done between the State upon the one side and the prisoner on the other. If that is your object, still that new trial consists of a procedure which must cost a great deal of money and a great deal of public time, money certainly of the State and, in certain cases, it may be money of the prisoner also, because though the court have full jurisdiction to make any order they like as to the costs, still they may not, of necessity, make such an order. All that procedure is perfectly unnecessary in a case in which the court are clearly convinced that whether a trifling error which has been made in the conduct of the first trial or not a conviction must have followed.
Deputy de Valera talked again about the advantage of judges seeing witnesses, if they are going to decide questions of fact. That is the one thing that the judges do not do in the Court of Criminal Appeal. The one thing that they have never done and never will do—certainly not under this section—is to decide questions of fact. I mean by question of fact a question such as the Deputy has brought up, the credibility of witnesses. The credibility of witnesses is never for the Court of Criminal Appeal. The credibility of witnesses is for the jury, in the first instance, and for the jury only, and it is only from the evidence which it is clear the jury have believed that the court is free to draw deductions, and from that evidence only the courts do draw deductions. The credibility of witnesses is always for the jury. There is no difficulty in applying those principles; they are regularly applied. Here we are really dealing only with this one sub-section, sub-section (a).
I have wandered, I am perfectly aware, from sub-section (a), but I have wandered away from it because I wished to counteract, as I hope I have counteracted, Deputy de Valera's argument, that sub-section (a) is now unnecessary, because sub-section (b)— the new trial—exists. When the Deputy put his contention to the House at the end it was not really that sub-section (a) is bad; it was not really that sub-section (a) is wrong; it worked itself down to this, that sub-section (a) is unnecessary in the Deputy's view. Yet the Deputy has got the whole experience of people in this country, and of the legislatures in the two neighbouring countries, whose criminal system is similar, that a section like this is necessary. Now the Deputy has talked very often of, and is very pleased with describing himself as a layman unconversant with legal matters. Yet the Deputy puts up his own authority—I will leave out for a moment the experience of this country —against the authority of the working of precisely the same system, as far as appeals go, in two neighbouring countries. What is the strongest argument that the Deputy can put forward? He has put it forward as his strongest argument that this sub-section is unnecessary. Then the judges who administer the law, even if that were right, would never use it. It would not be harmful; it would be, at most, useless. My contention is—and it is a deliberately-considered contention, based on experience and on authority—that a section of this nature is necessary for the proper working of any Court of Criminal Appeal. The Court of Criminal Appeal is a new court; it is a court which has been established entirely in favour of not merely accused persons, but convicted persons. It is a one-sided court, so to speak. No appeal lies on the part of the State; appeal lies on the part of the prisoner and on the part of the prisoner only to the Court of Criminal Appeal. The prisoner has got under the Courts of Justice Act a right which a prisoner in this country never enjoyed before, a right of appeal. That right of appeal should be exercised to acquit men where there is or there can be a real doubt as to their guilt, but this new right which is given should not be made, and I trust will never be made, a way by which a man found guilty by a jury of his fellow-countrymen and, in the opinion of the courts of this country, correctly found guilty upon the evidence before the jury— a subterfuge by which a guilty person of that class who has wronged the community can escape from the consequences of the wrong he has done. I ask the House to reject this amendment and to stand over this section.