I put some matters to the Minister on the last occasion purely as a layman. I had the good fortune of not becoming a lawyer, something for which one has to be grateful, and therefore, speaking as a layman, I think the whole practice of appeals as retrials is objectionable. I cannot take quite seriously the assurance given by the Attorney-General that, in a country where there is no need of anything of the kind, it is not putting a premium to a certain extent, at all events, on perjury. I remember when the original Courts of Justice Bill, or some similar Bill, was under consideration, my own personal view on the question of perjury was this—it was a purely personal view—that it was so prevalent that it would be better to avoid the scandal of perjury, to do away with the taking of an oath altogether. Making the penalties very serious would do instead. It seems to me—and from what I have heard this is borne out—that very often the preliminary hearing is only regarded as a trial run. Each side tries to find out what is the case of the other side, and then fixes its evidence afterwards. You are really helping and perpetuating that particular system. I have been assured by practitioners that very often even they are unaware of their client's case until they have heard their client and the other side examined in court. Why extend—as you are doing under this Bill, in practice at all events—the scope of those appeals? I may say that the original Courts of Justice Bill did contemplate—I think the Attorney-General made that point, by way of interruption at all events—appeals on matters of fact, but again I have been assured that in practice it did not work out that way, and that you had appeals mainly on matters of law. Here again, when you have appeals you have not what might act as a check on the repreparation of the case by either side; you have not the shorthand note of the original evidence. I think if you are going to have appeals it is better to have that check, so that you will obviate certainly one of the objections to them. I understand the case of the Government is that the people are accustomed to this particular objectionable form of procedure, but why encourage it if, in itself, it is wrong? A judge ought to be able to decide at least on a question of fact. On that question one man as a judge is as good as anyone else. It is not necessarily the best-trained lawyer who will be the best judge of fact. In the most serious of cases, that is, the criminal cases where a death penalty is involved, we leave it to men unversed in the law to judge the question of fact. Why, then, is it necessary to have a retrial by way of appeal from any law court to another on a question of fact? It does not seem to me that the practice is sound. The fact that it was in existence in this country has led to confusion. Now that we are recasting the administration of the courts there is no reason why we should perpetuate that particular evil. I would once more ask the Minister not merely to consider the suggestion made on the last day to limit those appeals to some extent, but also to reconsider, between now and the next stage, this whole question of appeal. Why has it grown up in this country? Has it led to good results in this country? Those are points which I ask the Minister to consider on this matter.
Courts of Justice Bill, 1934—Recommittal—Resumed.
I suppose, while human nature is what it is, it will be almost impossible to find a state of affairs where there will not be perjury or other things of that kind.
I quite agree.
I do not agree with, and I do not think anybody would be impressed by the argument that appeals gave this unlimited opportunity for what is called mending the hand, and that consequently they gave people an additional opportunity for committing perjury. I am sure that advocates and judges who have had experience would say that where there is a rehearing on appeal the advocate will be keen enough to see any mending of the hand which may be attempted. He will be instructed, I am sure, by a solicitor and by his clients as to what those people swore in the court below, and an opportunity will be given him to check that. I have never heard that the old system of appeal gave anything like what might be described as this unlimited opportunity for perjury or mending of the hand, although there may have been, and I believe there were, cases of that sort. I would, however, put it to Deputies opposite or any Deputy in the House that a greater wrong might be committed by not having an appeal. Take a case in a very small country district where there is a disagreement between neighbours about some matter or other and it is brought to court. Invariably your client, when he is instructing you, can give you a fairly good line as to what he thinks is going to be the opposition's case. He knows the witnesses who have been subpoenaed from the district. He has a very shrewd idea as to what those witnesses are going to swear, and you can get some idea, at any rate—even if it is not a very good idea —as to the case that is going to be made by the opposite side. I have come across cases—very few—where what I consider to be a great injustice was done by the knowledge which was in those persons' hands as to the case that was to be prepared, and they made a case to upset that. On the overwhelming amount of evidence which they produced they got away with it. There was a case where some unfortunate person was wronged or was deprived of his rights, and if there were no appeal there would be no opportunity of remedying that. There you had the success of both perjury and wrong.
The courts took a narrow view on the construction of Section 61 of the Act of 1924, and after that ruling there was practically only an appeal on law, and the question of fact was ruled out.
I have known cases where the High Court judges expressed the opinion that they were very sorry they were precluded from going into the facts of the case, because they would come to a very different decision. I would say that from that point of view an appeal in some cases at any rate is very useful. The perjurer will be prevented from getting away with it, and there will be an opportunity of putting up additional evidence. In regard to the shorthand note, while I agree that it would be an additional check there is this much to be said against it. If you were to have both the shorthand notes and a rehearing it would take the judges an unlimited time to get through their work. They would have to be continually referring to the notes and referring to the evidence, while at the same time hearing the witnesses. In that way it would take an extremely long time to get through their business, and I do not think it would be workable. I agree that on the part of the people who have been intimately concerned in the matter, not only in their own interests but in the interests of the public, the overwhelming amount of the evidence we have seen and the indications we have got recommended that this course be adopted, and that we go back to the old system.
The Minister has spoken of the evidence of those people who have knowledge in the matter. Was there not evidence in favour of keeping the shorthand notes?
They wanted to keep the shorthand notes as well.
Their evidence is good when it suits the Minister; it is bad when it does not. The point raised by the Minister was that the judges could never get through their work if this system existed, but the overwhelming view of the people who gave evidence is that they could get through it; they recommended the system. A lot of time is lost in cross-examining a man to find out what he had said. Surely it is much easier to say: "It is written here in the shorthand notes that you swore so-and-so on such a date"? That would boil down to five minutes what might easily be half-an-hour's cross-examination. I presume that idea influenced the overwhelming body of opinion which the Minister both stands behind and rejects in this manner. He will also recognise that his argument about appeals goes much further than this Bill goes. I have not the slightest doubt that the Supreme Court would sometimes like to have a rehearing of the case coming up to it from the High Court, and that exactly the same opinion might be expressed by members of the Supreme Court about the hearing of facts in the High Court as was expressed by the High Court in regard to the Circuit Court. It is inevitable that you will have disagreement between individuals as regards facts and that means that if you are to satisfy the Minister you must have no limit to the appeals you can make. The mere fact that there are differences of opinion regarding the facts is no reason why a certain decision should not be final. It is quite obvious that the Minister is not convinced of the force of his own arguments, otherwise he would have extended the appeal system much further than is allowed under this Bill. I can see only one ground for allowing an appeal on a question of fact and that is the necessity which sometimes arises for some kind of check on a possibly cantankerous judge so as to keep him in order. It has not any other value. That is, there may be a certain man whose judgment of facts may be coloured by his own whims and unless he knows that there is an appeal from them he may run riot. If the Minister's argument is sound it must apply all round but it does not apply all round. I have come to the conclusion that the Minister is not convinced, but the old habit is there and he is keeping it up for no other reason. I think it is a mistake that he is keeping it on. It is perpetuating a bad habit. The Minister says that there will always be perjury. I admit that there will, but you are tending to increase the force of a natural tendency by what you are doing.
I see no reason whatever why there should not be an appeal on a question of fact, but there is only one way by which you can prevent a litigant making a new case and possibly committing perjury. That is by having an official note of the evidence given in the court below. The business of an appeal judge is to see that justice is done between the litigants and even if the consultation of these notes imposes some extra trouble on him, that is his business.
I suggest that no Deputy would desire to see a position arising in which the judge would have to read the notes in all these cases as well as rehear them.
They could be referred to the relevant portion by counsel.
They could be referred to by counsel who perhaps would read two or three lines taking them out of their context.
There is the opposite counsel.
I do not know that a judgment would be improved by the fact that the judge's attention had been called to a particular note. He would much prefer to hear the whole case made in the court below. I think that certainly would take a considerable amount of time. If there is going to be anything like the number of appeals which were usual when the old system was there, it would mean, having regard to the number of judges available, that they would get considerably into arrear and they would not be able to carry on.
Let justice be done though the heavens fall.
Does the Minister not realise that in the Courts of Appeal under the old system, counsel appearing on one side or the other frequently had to rely on the local Press report, in cases in which a litigant had definitely and blatantly changed his case? Does he not know that it is a well-established fact that while counsel may cross-examine upon the report of the case in the local paper, at the same time that report had no official standing? When a witness brazened it out, as they generally did, counsel could not do anything except to say: "Did you not say such and such a thing in the court below? I have the report here in the local paper. Is that not what you said?" I am perfectly satisfied that in many cases witnesses got a going-over for the second trial. I have personal cognisance of one case in which a litigant said that they would go on a new line altogether at the new trial. If the notes of the official shorthand writer are there the judge can become officially cognisant of the evidence tendered in the court below. While I can see Deputy O'Sullivan's point that it is not necessary for the judge to go through the whole notes, they are there as a preventive. Unless the witness knows that there is an official record of his previous evidence to which the judge can have access, you will have, undoubtedly, that spate of perjury that occurred in the past and that I regret may also happen in future. We have taken many steps to improve the morals of the country generally, and I think this is one of the instances in which it is the bounden duty of the Government to take steps to prevent such occurrences. I join with those Deputies who have stressed the point that the official stenographers' notes should be retained for the purpose of preventing, if for no other purpose, the introduction of perjured evidence.
I do not intend to go again into the question of the merits of the old system as compared with the proposed system. It is quite obvious that this system, as it is in the Bill, is going to operate. Litigants will have had an opportunity of seeing the kind of justice they got under the present system and, when this operates, they will see how they fare under the new system. It is only in that way that the people of this country are going to learn. They are not willing to learn from argument; they are only capable of learning from experience. I entirely agree with Deputies O'Sullivan and MacEoin that if this system is going to be worked properly and if there is to be any check upon the rather wholesale perjury that does exist in courts in this country, the shorthand notes in the Circuit Courts should be retained. I do not say for a moment that these notes should be used freely on appeals. I entirely disagree with the Minister when he says that the judges of the High Court going down on circuit would freely read the shorthand note of each case and that that being their mental attitude, they would, of necessity, have to take up a considerable amount of time in reading the transcript of the shorthand notes of cases before they came on. I believe that the mental attitude of judges is entirely the contrary. They do not read the transcript of the shorthand note of cases before they come into court at the present time and they certainly would not do it where they would be rehearing the case on facts again. The old judges of Assize, as Deputies who remember the system know, were entirely disinterested in what happened in the court below. They were there to retry the case and what happened in the court below was no concern of theirs. They were rehearing it and they were going to decide on the facts before them irrespective of what happened in the court below. That is the general experience of everybody who had experience of the old judges of Assize. That will be the mental attitude of judges under the new system. They will not care what happened in the court below. It was pointed out here on the last occasion by Deputy Lavery, I think, certainly by some one of experience, that when you put in the old days in cross-examination the question "Did you not say so-and-so in the County Court; did you not swear such a thing in the court below?" the judge of Assize did not take the slightest notice of cross-examination of that kind. It was common form on both sides, and it was recognised that that sort of thing was practised by advocates.
I do not wish to go into the merits of this matter, but I do think that if this new system is to be worked properly, that if there is to be a check on perjury and on litigants changing their hands—mending their case between the hearing in the Circuit Court and the hearing before the judge of Assize— there ought to be an official shorthand writer who will take the evidence in the Circuit Court so that it can be referred to if there is any question of a changing of hand or of perjury. No additional time will be wasted by referring to that evidence. The mere fact that there is such a check in existence will tend, I believe, to stop this changing of hands and the committing of perjury before the judge of Assize.
There is one point of detail on the section on which I would like to have the Minister's views. Under sub-section (3) there is a provision that the judge of Assize may state a case for the opinion of the Supreme Court. I notice that that power to state a case for the Supreme Court, as the sub-section stands at the moment, is left entirely in the discretion of the judge of Assize. If he should think proper, he may state a case for the decision of the Supreme Court. The Minister may perhaps have heard of the observation of a well-known judge in this country who, when he was asked to state a case, said that he would do nothing of the sort: that it was the sign of a weak judge to state a case. Well, now, that attitude may possibly not be shared by the present judiciary, but at the same time it is one, I think, the Minister should give some attention to: as to whether or not it should not be obligatory on the judge of Assize, in a serious case, to state a case for the opinion of the Supreme Court unless he is of opinion, and so certifies, that there is no serious question of law involved and that the application is frivolous. I do not like leaving the matter entirely in the discretion of the judge of Assize. There is the danger of a judge making up his mind and taking a strong view of a case and of the law. Everyone knows that at Assizes in the past it was not possible adequately to deal with very serious legal issues, and it will not be possible either under the proposed system. Consequently, I think the Minister ought to give some consideration to the question as to whether or not it should not be mandatory on High Court judges, in serious cases, to state a case for the decision of the Supreme Court.
With regard to what the Deputy has said on that last point, I agree to some extent with him, as I had a very bitter experience myself. The position then was that you had to apply immediately for leave to appeal. Counsel in the case thought it better to leave it over for a while, to have a chat with the judge and get leave to appeal. He did not get leave, and it was a very bitter experience for me. I certainly would be inclined to meet the Deputy in some way on that on the next stage of the Bill.
There was one point that I omitted to mention when making my argument before, and that was the costs of the stenographer's notes. As Deputies know, the main costs at the present time arise from the stenographer's notes. Evidence was given before the Committee on that, but the Committee seem to have overlooked that particular matter. Evidence was given as to the costs incurred in these appeals by way of rehearing on the notes. The costs were mainly due to the notes. What I suggest would happen, if you retain the stenographer and the taking of the notes, is that in every case that is being appealed the solicitors engaged will brief the stenographer's notes to counsel, and we will be back again to the old position and trouble as to costs.
Does the Minister not think that it would be an exceedingly good thing to get the notes briefed to counsel going to the Assizes? By doing that, the Minister will be ensuring that counsel have proper briefs in these cases. They will be in a position to present their cases properly to the court. The cost of the shorthand notes could be graded down and in any event it would fall on the litigants. So far as the cost to the State is concerned, an official shorthand writer could be employed whole-time in the County Registrar's office. That would mean very little additional cost to the State. What we had in view was that there would be one copy available for the judge and that it would be produced by the county registrar if and when required, or if there was any question of perjury or of the changing of evidence during the hearing of appeals.
I repeat again what I stated before. The Committee took the view that the present system was too costly, and their main consideration, in recommending a new system, was to get a cheaper one. They started off with that idea that seems to have implanted itself in their minds. That may be seen from the questions put by them to witnesses very early in their proceedings. Then there came a succession of witnesses, one of whom, Judge Devitt, said that the old system was a breeding ground for perjury and that the new system would breed more perjury. He was the first, I think, who spoke very explicity on that. Mr. Henry Murphy also gave evidence on this. He started off by saying that he did not believe that amongst orderly living people there was any more inclination to perjury in this country than there was in any other. He went on to say:—
"A lot of our people are not as bad as they are painted, but it is a terrible temptation to hang this before a man. He goes home from the court in the first instance a beaten man, and he sees the victor lighting a bonfire and that eats into him and he thinks that he will have another run for his money by way of a rehearing. The poor fellow will spend his last pound upon it even though his case is hopeless."
The Chief Justice, in giving evidence, used very much the same phrase. He said that it was an obvious temptation and would breed perjury. I am nearly sure, although I have not looked up the reference, that the President of the High Court said the same thing. So impressed were the Committee with that evidence that, having in the forefront of their thoughts the idea of economy, and being really out against the stenographer's notes in the beginning, in the end they brought in a recommendation that the notes should be retained. They state in their Report:
"The Committee heard a good deal of evidence on this question, and are of opinion that the official stenographer should be retained. This does not mean that his note should form part of the record in the Circuit Court, or that it should necessarily be briefed for counsel, or be transcribed, but it should be available, and any party to the action should be entitled to a transcript on payment therefore of the prescribed fees."
You had that remarkable thing: that the Committee opened strongly in favour of economy, but they do gain the impression, although it is weakened towards the end, that the main field in which economy is possible is in regard to the notes, and yet the other current is started in their minds by all the evidence that was given before them in regard to perjury. In the end I think they brought in two contrary sorts of suggestions: a report in favour of economy, a going back to a system which they think is going to be more economical and reporting in favour of the retention of the notes. There is no doubt that certain members of the Committee started off prejudiced against the system that holds at the moment, and were inclined to go back to the old system. If not favourable to the impressive argument of economy, the saving of expense, even these people were swayed by the evidence given with regard to perjury. On the last occasion I referred to the suggestion made at the end of the evidence by the Chief Justice. He suggested that the witness should not be sworn at all at the beginning, and that the impressive matter of imposing the oath should be retained, until such time as it would seem to the judge or counsel that a statement of considerable moment in the case, or one that was questioned very much, was being made. At that point the man was sworn in order to have his attention directed to the particular statement that was about to be made, or that possibly had been made, and he was then faced up to that with the oath he had just sworn.
I understand that a good number of people not merely approved of that suggestion of the Chief Justice but added to it the weight of their experience. I have certainly heard it said by practitioners that there was a peculiar mentality in this country which could only be met by not having the oath imposed; that where you press the oath it has this effect, that they only lie just sufficient to win the case and that there is a great deal to be got out; whereas, if they are not sworn, there will be more lying, but it will be so blatant that they will be caught. I thought I heard the Attorney-General express that view. I certainly heard that view expressed by people who practise mainly in the west of Ireland. I included the Attorney-General when I said I heard a number of people supporting the view of the Chief Justice, that you retain the solemnity of the oath until some critical statement is sworn to, or when a witness is answering a particular statement.
The Deputy is only dealing with evidence in cases in which a witness would be liable to prosecution for perjury.
That he would be liable to be prosecuted. I have been reminded that, with all the talk about perjury, prosecutions are almost unknown.
Does the Deputy consider that would exercise some sort of restraining effect on people giving evidence?
The Chief Justice suggested that it would have a restraining effect. I do not know. I heard other people, who have experience of witnesses and to whose opinion I would give credence, approve of this idea. Whether perjury is more rife in this country than in another country, or whether we are just as infirm with regard to that matter, and no more infirm than other people, there is no doubt there was an amazing amount of evidence which apparently impressed the Committee, that this was an undesirable thing, that it was tempting these people into perjury, and that the only way to block the temptation, and to make weight against that temptation, to some extent, was by having the note somewhere around, not necessarily in the brief to counsel, or available so that the judge could call for it. I understand the argument has been made that that would mean that the judge would have to go into the cases and have to read them, and that that would be an imposition on his time, and so on. There are cases in which depositions are taken, and certainly whether the judge reads them or not, they are not referred to in court until there is some blatant misstatement of what was previously said. Then it is the usual course to have the depositions and to ask a man about them and if his signature was on them. Whether a witness has to be questioned, and whether the note is brought forward or not, there is that deterrent in the background. There is the record of his having said something. Some evidence was given before the Committee that perjury would be always caught out. The answer given to that by, I think, the President of the High Court, was that perjury to be feared did not mean a complete misstatement of what was said on the first trial, but that the man who trimmed, who tied up little tangles and little hang-overs, who knew how to improve a new statement, and how far he could go, having that knowledge was able to warp a statement a little bit so as to get into line with the new case.
There is another defect, not on that subject, but one that is, undoubtedly, going to prevail in the future. That is a scheme of not putting forward the best case. I am not now referring to people who made the case and who went back on it, changed and warped it a bit, and perjured themselves in the process. There is a rather better method of using it as a trial run, by withdrawing an important witness, and then making the real case on the rehearing. Although that is not as disgraceful a practice as perjured evidence, that trial need not be made too easy. The appeal ought to be a real appeal. If a bad judgment on the case is presented in the first instance, you are certainly opening the door to the other method, of availing of the appeal. The real case need not be presented the first time. There is no prohibition with regard to the bringing forward of extra witnesses, and it will be possible still to get out of a man important pivotal things when it is known that the real hearing is on the second occasion.
The Attorney-General
It always puzzles me why people who have not, perhaps, an intimate knowledge of the people, or who have not been concerned closely with them in their litigation, should be so ready to make the charge that the ordinary people are so ready to commit perjury. Deputy Costello stated this evening that there was wholesale perjury in the courts. I know that that view is shared by a great many people, and that Deputy O'Sullivan seems to think there is a good deal of perjury there—I suppose in County Kerry.
In how many dioceses is perjury a reserved sin?
The Attorney-General
I do not think it is a reserved sin in the counties I speak of, or that even the fact that it is a reserved sin justifies the charge that was made here against the people. I want to give my own views about it. I say that when one hears so many responsible people expressing the view that there is wholesale perjury, I hesitate to challenge its correctness. It may possibly be that people who are so ready to make that charge have means of judging the truth or untruth of the stories told in the courts, or that they have a better instinct as to what is the truth than I have. I had experience as a solicitor for five years, I acted as a judge in the old Sinn Féin Courts for a couple of years, and I have experience at the Bar, and I consider the charge against the people, that there is a general tendency towards perjury in law cases, unjustified. Undoubtedly certain people that one gets to know—particularly in an area where they are confirmed litigants— are prepared to commit perjury in court, if they can. The ordinary country man is not inclined to commit perjury in civil cases. Where criminal courts are concerned I agree that in defence of a prisoner, guilty, perhaps, of a crime, his alibi witnesses are prepared to go a long way in order to escape punishment. Civil cases that went on appeal from the old County Court to the Assizes, in my judgment, and from my practical experience, are not characterised by the frequent perjury that has been treated by some of the speakers here as being almost a common feature of them.
Deputy Costello said that appeal judges paid no attention to counsel who asked a man what he swore in the court below. If witnesses were so prone to change their stories before the Assize court, it is an extraordinary thing that steps were not taken in the interest of justice to introduce some means of checking their evidence by stenographers' notes or otherwise. If perjury were so frequent and stories were changed in that way, it is extraordinary that some steps were not taken to rectify the position. Deputy Costello has said that no attention was paid to that charge when made by counsel. I have known of witnesses who improved their story between one court and another, but that applied only to the odd case in my experience. Deputy McGilligan referred, over and over again, to the Committee's judgment as showing that they were so impressed by the case made for preventing this "mending of the hand" and this perjury that they suggested that the stenographers' notes should be retained even though the system was to be changed. It strikes me that the real reason why the Joint Committee were anxious to preserve the stenographers' notes was in the interests of the stenographers employed at present. They felt that, if there was a big change, all these men would be thrown out of work. When I was before the Committee, that was the feeling I had when asked these questions about stenographers' notes. Deputy O'Sullivan and Deputy McGilligan referred, over and over again, to the Committee's report on this point. May I refer to paragraph 23 of the report?
"The principal objection made by some witnesses to an appeal by way of rehearing was that the hearing in the Circuit Court would, in many cases, be in the nature of a direction of proofs and that, on the rehearing on appeal, litigants would `mend their hand,' to the great encouragement of perjury."
The next sentence is : "The Committee were not impressed by that objection."
But the case was made to them.
The Attorney-General
The Deputy has throughout his speech suggested that the Committee were so impressed by that objection that they regarded it as essential that, though we were to have a return to the old system, and that the provision for stenographers' notes should be retained.
Why did they ask to have them retained—was it to keep the jobs for the stenographers? Is that the contention?
A nice committee !
The Attorney-General
Various reasons may be advanced. What I am dealing with at the moment is the charge which runs through the speeches of several Deputies on the opposite side, that the old system was a breeding ground for perjury. That is a charge which it is easy to make, difficult to meet but not so easy to substantiate. I agree thoroughly with what Mr. Henry Murphy said that there is no greater tendency to commit perjury amongst the ordinary people of this country than there is amongst the ordinary people of any other country. I do not think that it is proper that Deputies should make this charge without having experience to guide them. I do not think that Deputy McGilligan can claim to have experience of the ways of country people in the courts and their methods of making up their cases. It is easy to see that if a plaintiff or defendant has a serious case to make, he is not going to carry that case on his own uncorroborated testimony. Yet, the suggestion is that he mends his hand between one court and another.
Do Deputies not realise that the litigant would have to drill all his witnesses to do the same thing in order to succeed? Unless we are prepared to accept the contention that a litigant is not alone prepared to change his own hand and to commit perjury, but is able to induce the whole body of witnesses to do the same thing, it is difficult to see how the suggestion of Deputies opposite, that success is so frequently achieved in this way, can be believed. In my evidence I was asked a question about stenographers' notes, and I agreed that it would be useful to have stenographers' notes, but I objected to the note being available in the way the Committee reported. It seems to me that if you have a stenographer's notes available, it will become common form for counsel to say: "Brief me a copy of the stenographer's notes." That would become the normal thing and that would add considerably to the cost. If the only purpose to be served by the note is to check the evidence of a witness, my suggestion was—I think somebody has made it from the opposite benches— that stenographers' notes should be available, to be called for by the judge if required for the purpose of testing a witness's evidence, or if some important turn in the case made it desirable to have the notes produced. I doubt, however, if it is justifiable to retain the stenographer's notes for that purpose only. It will be expensive to the State and to the litigants who, as part of the brief to solicitor or counsel, will have to include these notes.
If the notes are to be available only to the judge, the sole point made in favour of that procedure is that it will be a deterrent against perjury. I do not really think that perjury is the widespread evil that Deputies opposite seem to believe it is. I may be wrong. Everybody in Kerry may be a perjurer. I am speaking of Mayo and Galway and the counties with which I am familiar. I have known people without inside knowledge who were prepared to accept that allegation when made by people who pretended to know. I speak merely as one who had inside knowledge of the working of the system and of the ways of litigants, and I am not at all impressed—neither, apparently, was the Committee—with the charge that a return to the old system will encourage perjury on a large scale. I do not know whether it is possible to meet the suggestion that the stenographer's notes should be retained for the purpose mentioned in my evidence and which I have just discussed. The Minister may consider that there is something to be said for that contention. On the whole, I think it would be unjustifiable to incur all that expense and add to the expense of litigation on the grounds suggested by Deputies opposite.
I am afraid that the Attorney-General is a very simple man. Notwithstanding his experience in Mayo and Galway and as a Dáil judge, I think it must be recognised that litigants in general in this country are a little bit prone to what we call perjury, but what possibly they do not conceive to be perjury and merely regard as lies. The Attorney-General accused Deputy McGilligan of lack of experience in this matter. Perhaps he will admit that I have a little experience of the County Court and Assize Court. On one occasion, going into the County Court, I happened to meet a person for whom I was appearing in a slander action. I asked him whether he had or had not used the words the plaintiff complained of. "I have," he said, "but I have two witnesses here to swear I did not." The Attorney-General will not take that as a typical instance of the sort of thing that happened in the county to which I am referring. Does the Attorney-General know that one district justice habitually keeps a crucifix in front of him for the purpose of endeavouring to stop perjury, and that another district justice here in the City of Dublin conceives it his duty, whether rightly or wrongly, to administer an oath two or three times to the same witness? I am not concerned with emphasising the fact, which we believe to be a fact, that perjury is rife in this country in civil cases. The Attorney-General says that it is rife in criminal cases. In my experience, there is much more perjury in connection with civil cases in this country than in connection with criminal cases: that people regard them as more important and are prepared to go to greater lengths to win their cases in civil actions than in criminal cases.
Again, may I refer a point of detail to the Minister in connection with sub-section (3), coupled with the following Section 42. In reading it over, it struck me that there might be difficulties in regard to the construction of the section. It would appear to me, at all events, that a rather cumbersome procedure is laid down, on the construction of Section 42. Under the scheme of the Act, as it stands at the moment, a High Court judge has power to state a case for the opinion of the Supreme Court and he has to reserve his determination of the question until after the Supreme Court gives its decision. My recollection of the old practice of cases stated from Assize judges to the then Court of Appeal is that the case was stated by the Assize judge and he said: "If the determination of the matter by the Supreme Court is in such-and-such a way, then my decision will be so-and-so; but if the determination is not in such-and-such a way, then so-and so." But the case ended when it went into the Court of Appeal. Here, however, the procedure would appear to be that the Supreme Court would express its opinion on a certain point submitted to it and then the case would be referred back to the judge of Assize, who may have to sit specially to hear the case or who may not hear the case until six months after it is determined by the Supreme Court. I think that the Minister ought to give a little consideration to that point with a view to seeing if it was intended that such a cumbersome procedure should be enshrined in the Bill.
I think the Deputy can be met on that.
It just occurred to me, in reading it over, that the construction of the section might lead to difficulties.
When speaking the last time on this matter of perjury I thought I had precluded myself—at any rate in the judgment of anybody who had ears to listen to me and understanding enough to comprehend what I was saying—from being taken to mean that I was relying entirely on my own experience in this matter. I pointed out that I was not relying on my own experience, and I repeated here ad nauseam that I was founding my opinion on the experience of other people. If there are any allegations about perjury in this country, they have been made by a big, and a very big, number of responsible people, and by folk who appeared before a committee to give evidence on this very matter and who did not scruple to put themselves on record, in the presence of stenographers taking down their evidence, as to what they thought about this matter of perjury. The Attorney-General can read as much as he likes of paragraph 23. The fact juts out that the committee were impressed by the arguments in favour of economy and further impressed with the question of expenses and by the fact that the expenses were mainly incurred by reason of the notes. Yet they reported in favour of keeping the notes. Why? They said that they were not impressed by a certain objection—you have got to read that in its context—about the number of people who gave evidence about mending their hand. At any rate, whether they were impressed or not, there is one thing that cannot be denied: that, being impressed with the arguments in favour of economy, they went back to what was described as an extravagance, and voted in favour of keeping the notes. Why did they do that? The only attempt to answer that has been the Attorney-General's statement that it was in order to keep the stenographers in their jobs. Let us assume that that is the only argument, and let us weigh up the mentality of that committee and go through the evidence and find out how many people spoke about the possibility of the stenographers losing their jobs. I do not think it will be found. Apparently, that aspect was forgotten. It was not put before the committee and I do not see that there is any question and answer, or any series of questions and answers given, which would enable anybody to hang the fact that they reported in favour of the notes on their desire to keep the stenographers in their jobs.
If it was not for that reason, why did they do it? It is very easily seen. There was one member of that Committee—then a member of this House— and I have always expressed my admiration for the way he ran it. I refer to Mr. Jasper Wolfe. He was against the present system and in favour of the old system. He was the man who asked the Attorney-General relevant questions about the old system as opposed to what was proposed in the new system, and when he first came up against a really important witness on the matter of perjury he then proceeded to shift his ground. That was when the Chief Justice was under examination. The Chief Justice, surely, is a responsible man, and the Chief Justice's phrase, as used at the top of page 317, was: "We all know that these cases on being reheard at Assizes were hardly recognisable." If there is any allegation being made, it is not mine. That was the allegation made by a responsible person, speaking in a responsible way on that matter as the Chief Justice of the whole courts of this country, who came to give evidence on that matter before a Committee that had been set up to pass judgment on the old system. The Chief Justice said: "We all know that these cases on being reheard at Assizes were hardly recognisable." The Chief Justice's evidence was very strong on that matter of perjury. He uses a phrase about the breeding ground of perjury. Mr. Wolfe put a question to him: "You said that the old system was rather an invitation to perjury." The answer of the Chief Justice was: "Yes, that is the old appeal system." A little later, Mr. Wolfe suggested that the way to kill perjury was by an amendment of the old system: that is to say, to have the old system, plus the stenographer's notes. That was the way the Committee was run thereafter, and it was run on the recurrence to the old system, plus the notes, in order to meet the objections put up about perjury. Witness after witness talked about perjury, and they were people who were as tender-minded about the people of this country as the Attorney-General is, but they were called in there solemnly to give their opinions in a representative way on this matter and they gave it without any truckling to a public opinion which recognises perjury as being present but is afraid to say so.
Circuit Judge Devitt was another man who spoke very openly about perjury. He had had considerable experience both as a practitioner and as a judge at this time, and he told a story that on one occasion, when on circuit, he was up near the judges of Assize at dinner, and the conversation that went on between two High Court judges was an argument as to which county produced the best perjurers. He said that that made a terrific impression on his mind and that he had never forgotten it. It had remained constant with him. It may be said that these circuit judges, or judges of Assize in those times, were people who were out of touch with the people or who might have looked down upon the people of this country. I make a present of that argument for what it is worth. Deputy Costello has quoted a story told to him, and in the last week—since this matter was debated—a member of the Bar, who was previously a solicitor, told me of an instance where two men came into his office on one occasion to discuss a case. He proceeded to take down notes from them of their evidence in the case, and when they had finished he told them: "You cannot win on that," and their answer to him was: "Oh, we are only telling you that, but that is not what we are going to tell in court." Then there was a glorious case. Those men had their minds quite clear that, on the facts as they presented them to their solicitor, the man they were going to instruct, they could not win, but they did let him know that the actual occurrence was so and so and then warned him: "But that is not the case to be presented; this is it."
I think it would be wrong to found on an isolated instance like that, and I am only stating that here because it is a story which has been suggested to me as marking a frequent occurrence, not so openly stated, but when I get people like the Chief Justice, a couple of Circuit Court judges, a few solicitors through the country and some commercial men saying that they believe that, whatever may be the first attitude of the people of the country towards perjury, when you give them a chance of winning a victory where previously they have been defeated, the temptation is going to be too strong. All that was ever presented to the Committee by way of evidence was that it was a very serious temptation to put before people, and I suggest again that it is the only explanation of why the Committee abandoned their original strong view about economy and reported in favour of the keeping of the extravagance of the notes. The only way in which you can reason their change of attitude on that is that they were in fact impressed by the arguments put forward about perjury. Now we are going to go back to it without taking any care.
Has there been even any consideration given to a further point? The objection is the cost of the stenographers to litigants at the moment. Suppose the Committee's suggestion were adopted that the stenographer must be kept at his post, the note will be taken and will always be available for the judge but would only be available to a party on his paying for it. Has there been any consideration given to what cost that is going to impose on the State, and, secondly, how far is that going to tend against the so-called economy in the new system? In other words, how often will it occur that parties will request the notes and, therefore, incur the expense of getting them? I suggest that there is a great deal to be said for simply having the note in the background and that the mere fact that it is there, to be called for, will often preclude the necessity of incurring the expenditure on getting it, but apparently that has not been considered at all.
I spend the greater part of my life amongst country people and I have no hesitation in saying that what Deputy Costello says is perfectly true. Our people in rural Ireland do not attach the same significance to the word "perjury" that lawyers and the people who examine the question closely do. A great many of our people do not conceive it to be seriously wrong to put, as they think it, the best face they can on their case. Examples could be multiplied endlessly without proving much, but I remember a respectable man saying in my presence to a friend who asked him if he thought it prudent for him to go on with his litigation, that there was no need to be apprehensive as he had so and so as a witness and he was the best man who ever put lip to leather. He did not think it anything remarkable that this man was coming into court to swear what was necessary. I remember another man telling me that he was going to court on behalf of a friend to testify that he was present when a certain warranty was given and I said to him, "You were in my company at that time," and he replied, "Isn't the man my neighbour?" He simply felt that he had an obligation to weigh in, to lend force and weight to what he believed to be true although he knew he was committing perjury.
I put it to the Attorney-General, who has had long experience as a solicitor, if he has ever heard a trespass case in the County Court, or a licensing case in the District Court, in which he did not hear what he believed to be perjury. I do not think I have ever heard a prosecution by the Guards of a publican in which I have not heard perjury. I cannot imagine that, if the Attorney-General will examine his recollection, he will remember many cases in which a publican came forward and freely told the truth of what was actually passing when the Guards came to his door. The same could be said of a variety of cases. I do not believe, as a result of those facts, that our people are an abandoned or a degenerate lot who would commit perjury, as we understand it, with very small reason, but I do believe that the full significance of solemn perjury is not present to the minds of our people. Men who would not dream of committing perjury outside a law court consider themselves perfectly free to do so when it is in the course of legal proceedings.
The House has committed itself to the appeal system on assize and that appeal system, I suggest, will work far better if there is a note in existence of what passed in the court below. I would be inclined to stand for a note available only to the Assize judge because I think there is some force in the suggestion that if the note is available to counsel on either side, on application, it will become a routine matter that they will ask for it. Not only will counsel ask for it, but litigants, who, as we all know, in the country get wildly excited when they become involved with their neighbours in litigation, will feel that failure to supply their counsel with the note of the proceedings might jeopardise their chances of success in the superior court, so that you will have each side anxious to get the note and piling up costs, whereas if the note is available to neither side, it will be open to counsel to warn litigants that they are under an obligation, not only a moral obligation but an obligation of prudence, to adhere most strictly to the truth when in the witness box, because if they attempt to prevaricate or mend their hands in respect of the evidence they gave in the court below, the judge has before him all they said.
They can further point out that it is impossible to go over it because the note is not available to litigants and because the only person who will have it is the judge, and, therefore, the only safe advice they can be given is, "Stick to the truth, and, if you do, there is no danger of your being caught out; depart by a hair's breadth from the truth and the judge has a note of all you said —and you cannot check up on it—and you are certain to be tripped; if you stick to the facts as they occurred you will reproduce what you said in the court below and there is no danger of your being exposed."
I cannot imagine that that will involve the State in any very material expense, but I do say in this connection that I consider one of the things for which the State ought to be prepared to face expenditure is the proper administration of justice. It is the most valuable asset we can have all through the country, and money saved by skimping on the due and proper administration of justice is the worst form of economy we could go in for. I put it to the Attorney-General that the arguments which have been advanced for the existence of the note have remained unanswered, and I suggest that he should press the Minister for Justice, and I press the Minister myself, to accept an amendment which would provide that the note of the proceedings in the court below would be available to the superior judge but would not be available to counsel on either side.
The Attorney-General
I do not want to prolong the debate, but I should like to say in reply to what Deputy Dillon has just said that I admit there is no answer to the case he makes for having the stenographer's note available to the judge in the Court of Appeal, except the one of expense. That, I am afraid, is a matter which must be considered by the Minister, and I suppose if that could be got over the point would be met. I agree with him that it would be desirable to have the note there, and there seems to be such a strong volume of opinion against me on this question of perjury that I do not want to suggest that my opinion should be taken against that of others.
I am sure the Attorney-General will realise as a result of the debate that it is not a question as to whether naturally the people of this country are more inclined to this particular fault or not, but whether the legislation of the country is putting unnecessary temptation in their way. I wonder does the Attorney-General, with his experience in all sorts of courts, legal and semilegal, as a solicitor, a barrister, senior counsel and Attorney-General, know the attitude of the ordinary man towards a court? I thoroughly agree with Deputy Dillon. I had an argument with a man whose theology was very strong. He said that people were guilty of perjury and gave me a case. He said: "Take the ordinary case in the old days of fixing a fair rent." The Attorney-General is familiar with that matter. Everybody knows how many cows a farm can take. There is grass for ten cows. The tenant swore the farm had only grass for six cows. The landlord's agent swore that it had grass for 14 cows. Was not that the ordinary practice? Everybody who knew the farm knew that it had grass for ten cows. This clergyman told me —it was not in the County Kerry, I can assure the Attorney-General—that that was downright perjury. I said that it was nothing of the kind so far as the mentality of the man was concerned. He regarded the whole thing as a question of bargaining, and that is the way the landlord's agent regarded it. The man knew well that if he admitted it had grass for ten cows he was giving away a lot of his case—that the judge would split the difference. He approached the whole thing in the bargaining spirit, not with the intention of committing perjury.
I mentioned before that when the original Courts of Justice Bill was before the Dáil I had a private opinion in favour of the abolishing of the oath, because it added the additional crime of perjury to giving false evidence and cheating a neighbour. I see that is borne out by the Chief Justice. His considered view before the Committee was: "I think the oath has so far been debased that it has lost all meaning, and that, having been debased and lost all meaning, it is wrong to continue to use it." I think in a way I would almost prefer not to have an oath—not on the ground of objection to having the oath, but owing to the way in which you have the additional sin of perjury put on to the ordinary question of cheating and giving false evidence. I ask the Attorney-General to realise that we as a legislative body are putting this extra temptation into people's way.
While I entirely agree with the argument put forward by Deputy Dillon, I entirely disagree with the slashing and unqualified indictment of the publicans. I think it is a very uncalled-for charge to make against them. At the same time, I strongly appeal to the Minister and the Attorney-General to retain the practice, the very useful and beneficent practice, of having a shorthand note taken in the court below in order to safeguard against any possible perjury.
I want to point out that the Committee seemed to have changed their minds a couple of times. This official document gives a draft report and then shows the amendment as made in it. On page 76, the end of paragraph 27 runs "This does not mean that his note should form part of the record in the Circuit Court, or that it should necessarily be briefed for counsel, but it should be available for the judge, and for cross-examination by counsel of a witness whose evidence on the rehearing differs from that which he gave in the Circuit Court." On page 93 we see how the present paragraph came in. An amendment was proposed by Senator Comyn to delete all words after the word "available" and substitute therefore the words "and any party to the action should be entitled to a transcript on payment therefore of the prescribed fees". Apparently the chairman's draft report made it quite clear that it should be available for the judge and then it looks as if some little bit of fuddling took place. I should say the Committee meant to have it available for the judge.
The Attorney-General
They started with that.
At any rate, they cut out "available for the judge" and left it that the parties should be entitled to have it on payment. If the Minister could see his way to follow, at any rate, that part of the original paragraph down to making it available for the judge, the rest might be left out.
In view of the arguments put forward I would be inclined to see if that could be met in some way. I can see a difficulty, however, for a solicitor in briefing counsel. He will not have the notes of evidence given in the Circuit Court to have counsel fully prepared for any case he has to meet. The counsel would have to have a very good idea of the evidence in the notes on both sides. I think that in practice it would be very difficult to have counsel fully briefed as to all the facts. The most we could do in the old county court days, as well as briefing the evidence as best we could, was to try and get a cutting from a local paper of the evidence given. We had no shorthand note. That would be very incomplete as against the note the judge will have of the evidence. Between now and the Report Stage I shall try and consult the Incorporated Law Society and the Bar Council and see what are their views on the matter.
I understand from reading the evidence that those who urged that this was an extravagance urged it on the ground that solicitors took not merely the easy, but the safe course of briefing the whole thing once it was paid for. In the new circumstances, where it is a matter in future of counsel directing proofs and saying: "I want such and such evidence" he will be faced with the fact that he is definitely by his direction putting new expense on his client. If the phraseology of that could be run on such a fashion as to make that stand out, in other words, that ordinarily the thing would not be available for counsel, but always be in the background for the judge, and if a litigant, through his solicitor or counsel, called for it, he is definitely going to pay for it, you might stop the habit of briefing everything.
The Attorney-General
When the notes were first introduced in the Circuit Court I think it was discovered in certain cases that the cost, if the litigant was to pay the whole lot, was enormous, and there was some concession made by the State to meet the cost. There had to be a subscription by the State to the cost of the notes.
Would it not be unfair to the poor man as compared with the better-off man?
If you let one litigant get the notes in a case which has raised sufficient feeling to justify an appeal both sides will get the notes in every case.
There is a middle way.
I doubt if a middle way can be found.
There is the middle way of having them available for the judge.
The Minister says that counsel will find himself at a loss if he does not get the notes in his brief. He is not going to get the notes as it is. If there are no notes, the trouble is that counsel may say: "Be careful, because it may land us all in the ditch. Somebody may answer some question I am about to ask in such a way as to conflict with the notes." Still no harm is done. That means that somebody is trying to mend his hand in the Superior Court trial. Let him try it.
On this question of notes, I want to say that the Incorporated Law Society was consulted and the Society were definitely against notes, but I do not think it was put in the way of having them available to the judge alone.
There is just one point I want to raise, and that is with reference to the question of perjury. I am satisfied that there is no intention to commit perjury. I would not like to make any such charge. I remember definitely that the local newspaper reports had been referred to time after time in the Assize courts. I have a distinct recollection of that.