I understand from the Minister that he is prepared to accept an amendment similar but not identical in words to that in the name of Senator Johnson. That being the case I do not propose to move my amendment.
Public Business. - Juries (Protection) Bill, 1929—Report Stage.
The following amendment stood in the name of Senator Douglas:—
Section 5. To add at the end of the section a new sub-section as follows:—
"(2) Whenever a jury finds a person to be guilty of a crime for which the penalty provided by law is death, the judge shall inquire of the foreman of the jury whether the verdict is or is not unanimous, and if the foreman states that such verdict is not unanimous the judge shall not sentence such person to death but shall sentence such person to penal servitude for life."
I move:—
Section 5. To add at the end of the section the words:—
"Provided that in the case of a trial of a person on a charge for which the penalty of death is prescribed, if the jury has found a verdict of guilty the foreman of the jury shall notify to the Judge, in writing, the number of dissentients, if any, and the Judge shall forward to the Minister the information thus obtained."
I would like if it were possible to have inserted in the section a provision such as that of Senator Douglas, but in trying to frame an amendment on those terms, I felt that it was not within my competence to do so, and therefore I fell back upon a second line, on the assumption that Senator Douglas would be introducing an amendment which might not carry. I have had an intimation from the Minister that he is prepared to accept an amendment somewhat on the lines I have put down. I will read the draft suggested as an alternative:—
Section 5. To add at the end of the section a new sub-section as follows:—
"(2) Whenever a jury finds a person to be guilty of a crime for which the penalty provided by law is death, the Judge shall inquire privately of the foreman of the jury whether the verdict was or was not unanimous and in the latter case the number of the dissentients, and shall report to the Minister for Justice the information so obtained."
There is no guarantee in the Bill, of course, that a minority verdict would prevent the sentence of death being carried out, but we had the views of the Minister that, in such a case it would be probable, under the present jurisdiction, at any rate, that the sentence of death would not be carried out. That is the procedure set forth in the amendment and this procedure would, at least, allow the Minister to obtain the information upon which he could come to a final decision as to whether a reprieve should or should not be granted. If no amendment of the kind is inserted the section would prevent even the Minister from knowing whether the verdict was by a majority or not. At least to that extent the amendment is an improvement on the Bill as it stands. With the permission of the House I move this amendment first and will then go back on the consequential one.
In regard to that I think there is only one word that is objectionable and that is the word "privately." People who are accustomed to courts of justice know this, that the great thing to be desired is that whatever is done should be done in public. In the Scotch system which I have looked into during the last three or four days what happens is this: When a verdict is found if the jury are unanimous the chancellor, that is, the foreman of the jury, so states to the Judge and if the verdict is not unanimous the foreman of the jury states that it is not unanimous and gives the numbers of the dissentients. That system is absolutely right because it is fair and above board. That is the great thing to be desired in all legal proceedings, and particularly in criminal proceedings. I think that the word "privately" would expose the Judge and everybody concerned to a great degree of suspicion, and if Senator Johnson will withdraw that word from the amendment I think it would be an improvement.
In withdrawing my amendment in favour of the one which Senator Johnson has moved, and which I gather the Minister is prepared to accept, I did not mean that Senator Johnson should try to persuade me that mine was not better, or that I suggested I was convinced of that. But from the discussion here I was quite satisfied that I could not carry my amendment, and I believed there was a general consensus of opinion in favour of the amendment moved by Senator Johnson. With regard to what Senator Comyn has said, if we were dealing with a purely normal situation probably we would not have this Bill, and if we were considering a general change to nine instead of twelve, or to some majority as a permanency, I think I would agree with what he has said. But in endeavouring to draft the amendment which I put down I took it that Senator Johnson was in exactly the same position. It was a question of endeavouring to fit in with the scheme of the Bill, wisely or unwisely, his proviso. My object was to get accepted the principle that there is a fundamental difference in a case where the law provides capital punishment and which cannot be put right again where an error occurs. For that reason I hope the House will accept the amendment.
I wonder if the Minister would, in his suggested draft, object to deleting the word "privately" and inserting the words "in writing.""Privately" is rather a vague and undesirable term to insert in a statute of this kind. I think the responsibility should be placed on the foreman of the jury to convey, privately of course, but not in the way indicated in the draft amendment. Let him convey in writing to the Judge the number of dissentients in a case where there is not a unanimous verdict. Otherwise he might have to call to the Judge's private house and whisper to him what the result was, or by some other subterfuge to convey the result to him. Of course he could do that in writing, and normally I take it that would be the intention. I think that might be said in the amendment. I do not think it would disimprove it or weaken it.
I think the word "privately" is the very essence of this Bill. I have explained that so often to this House that I do not think I need repeat it again, As far as Senator O'Farrell's remarks are concerned, I would have no objection, if the word "privately" was kept in, that the report should be made in writing, with a few other words added: "The Judge shall inquire privately of the foreman of the jury whether the verdict was or was not unanimous." You could then practically take Senator Johnson's words, "and the foreman of the jury shall notify to the Judge privately in writing the number of dissentients and the Judge shall forward to the Minister for Justice the information thus obtained."
Would it be necessary to have the first "privately"—"That the Judge shall inquire privately"?
Put it this way—"The Judge shall inquire," and then add the words, "in writing."
—"privately in writing."
Why should he inquire?
As Senator Brown says, I think it would be wrong for the Judge to inquire. It should be incumbent on the foreman to state to the Judge in writing that there is a difference of opinion in the jury.
The only danger is that the foreman might neglect to make a statement one way or another. I do not think it is any harm to have the words there. If a verdict comes in and the foreman has neglected to put in writing on the issue paper what has happened, as far as the numbers of the jury are concerned, the Judge should inquire from him.
Cathaoirleach
I think that makes the matter clear.
Might I suggest that the information should be stated on the issue paper?
Not necessarily.
As a matter of legal procedure, would it not be better that it should be on the issue paper?
No, because the issue paper might be inquired into for other purposes. I think it would be better to have it a separate document.
But delivered at the same time?
What exactly is the purport of the amendment? Is it to do away with capital punishment?
Cathaoirleach
The idea was that a person who was convicted, but where the verdict was not unanimous, might not suffer the death penalty.
That is not stated. It is merely to be sent to the Minister.
The Judge must pronounce the sentence of death, and this is proposed in order that the Minister and the Executive Council might have an opportunity of knowing the fact that it was not a unanimous verdict, and if there were three dissentients it is not unlikely they would recommend that the death penalty should not be carried out.
In reply to the Senator I would say that the effect of the amendment, in fact, will be simply to increase the chance that an accused person will be reprieved.
It is an element which ought to be known to the authorities.
Cathaoirleach
The amendment will now read:
Section 5. To add at the end of the section a new sub-section as follows:—
(2) Whenever a jury finds a person to be guilty of a crime for which the penalty provided by law is death, the Judge shall inquire of the foreman of the jury and the foreman of the jury shall notify to the Judge privately in writing whether the verdict was or was not unanimous and the number of dissentients (if any) and the Judge shall report to the Minister for Justice the information so obtained.
Amendment, as amended, agreed to.
Question—"That Section 5, as amended, stand part of the Bill"— put and agreed to.
I move:—
Section 8, sub-section (1). After the word "often" in line 1 to insert in brackets the words "(but not more than twice in respect of any one trial)."
This was debated at considerable length previously. If the section as it stands becomes law it will leave it open for "a Judge presiding in the Central Criminal Court or a Judge of the Circuit Court sitting for the trial of criminal issues is satisfied that, by reason of intimidation or attempted intimidation of jurors or witnesses either in relation to the trial of criminal issues generally or of any class of criminal issues or in relation to the trial of a particular person or the intimidation or attempted intimidation of particular jurors or witnesses it is not desirable that the trial or trials of one or more accused persons awaiting trial before him should be had at the sittings of the Central Criminal Court or the Circuit Court (as the case may be) then in progress, such Judge may adjourn the trial or trials of such accused person or persons until the next following sittings of such Court or, in the case of the Circuit Court, to the next following sittings of such Court for the trial of criminal issues."
I consider this is extreme, and I so stated on the Second Reading. I take it that the Minister intended this section to act as a deterrent to intimidatory practices by misguided persons, if I might put it so. Perhaps he might have achieved his object by the section as it stood, but I think it went a little too far, and I hope he will agree with me.
If power is given to the judge to postpone, or to adjourn, a trial of an accused person because intimidation has been indulged in, then I take it that, if this section is to be effective, he must in practically all cases use his power in that respect, and postpone the trial. If he does not use his power in that respect the practice, if I may so put it, will fall into disuse, and the real object of the section will not be attained, because those who might indulge in these practices would not ordinarily be got. As Senator Johnson said on the last occasion, this section might lead to abuses in the case of a person arrested and indicted on a criminal charge. The enemies of such a person might indulge in intimidatory practices and attempt to intimidate jurors or witnesses for the purpose of keeping an accused person in prison. The section might lead to such abuses or such malpractices as that. On the other hand, you might have the case of a person who might be imprisoned and who, by reason of the action of certain persons with whom he is not directly concerned at the time, might be detained in prison for a considerable, or even for an indefinite period of time.
I think that a purpose such as that is not intended by the section and should not be so intended. I think I can see the point of view of the Minister, that this section is to act as a deterrent. The idea, apparently, is that it should act as a deterrent to people outside from carrying on processes of intimidation. I think that the Minister's object would be attained if the judge were given power to postpone the trial on two occasions to the following sitting of the court. I submit to the Minister and to the House that his object would be served if he were prepared to accept the amendment. On the other hand, I think that the object which I and other Senators have endeavoured to attain would also be secured by the adoption of the amendment, and that no injustice would be done to an accused person if the period during which he might be detained were limited to the length of two sittings of the court. I ask the Minister to accept the amendment.
I second the amendment, and I hope that the Minister will accept it. The duration of the Bill is limited, roughly, to a period of two years. Two adjournments, from one session to another, will in effect cover practically the greater part of that period. That being the case the Minister will really not be altering the principle of the Bill very much by accepting the amendment.
It is with the principle of the Bill, more than anything else, that we are concerned. The idea of unlimited adjournments and of an unlimited period in prison because of the activities outside of persons over whom an accused person has no control is a terrible prospect to look forward to. It is one that we should not approve of even in a temporary measure. Senator O'Hanlon has stated the case very fully. He has shown how an accused person may suffer an extended period of imprisonment because of the acts of people outside over whom the accused has no control. On the Committee Stage of the Bill, I said that the section seemed to me to be unnecessary and useless. If there are people to-day who attempt to intimidate witnesses or jurors, the probability is that they will be there in six months or in twelve months' time. It is probable that they will not have changed their views, and if in the meantime they do not indulge in acts of intimidation, the desire to do so will be with them, so that by a mere adjournment of the case you do not remove the intimidators. The acceptance of this amendment would make the Bill a better one from the point of view of equity and justice, and I hope that it will be accepted by the Minister and the House.
I would like to know from the Minister how often the Central Criminal Court and the Circuit Court sit.
They sit four times in the year. This would mean six months' adjournment at the longest. I would like to point out to the House that there is always a discretion left to the judge to adjourn as often as he considers the ends of justice demand. That is how the section stands. There is nothing automatic in it. There is nothing in it that would compel the judge to adjourn. The judge would simply adjourn if he considered that it was necessary to do so for the administration of justice. I think that is a circumstance which should be kept carefully before the minds of the Seanad. As there seems to be a generally expressed opinion in the Seanad in favour of this amendment, I will not oppose it.
I think if Senator O'Hanlon were to substitute the word "charge" for "trial" in his amendment, it would be better.
The word "charge" would defeat the object Senator O'Hanlon has in mind.
Amendment put and declared carried.
I move:—
Section 8, sub-section (3). To delete in line 26 the word "more" and to substitute therefor the word "two."
Amendment put and declared carried.
I move:—
Section 13, sub-section (3). To delete in lines 68-9 the words and figures "31st day of December" and to substitute therefor the words and figures "30th day of September."
On the Committee Stage, the Minister made the point, in opposition to the original motion, that it sought to substitute August because of the period of the session. An attempt is made here to fix the 30th day of September instead of the end of the year. The sole purpose of the amendment, as I have said before, is to secure as nearly as possible that if this is to be re-enacted for a period it shall be done by a special measure brought before the House and not be inserted among a long list of Acts which are annually continued. I hope the Minister will accept the amendment.
I have thought that over very carefully and I do not think there is any substance in the Senator's objection on the ground he has put forward, that is, that there is a danger that this Bill might be renewed under the Expiring Laws (Continuation) Act. If it were included in the Expiring Laws (Continuation) Act, it could be as much opposed in its passage as if it were a separate measure. If you look to the Expiring Laws (Continuation) Act and the classes of Acts contained in it, you do not see one of this nature. For instance, in this very session two Bills were introduced. I introduced one myself, the Civic Guards (Acquisition of Premises) Bill, which was not in the Expiring Laws (Continuation) Act. It does not seem to me important, but if the Senator is very keen about the matter I will put it off, if he likes, to the 25th March, 1932. Good Friday will fall on that date in that particular year and the courts will not be sitting.
I second the amendment. It may be remembered the reason why the suggestion was made that the date should not be the 31st of December was that we wanted to emphasise the fact that this was a special kind of legislation which the Seanad was not eager to pass, but which I think every member of the Seanad voted for. Those who did vote for it did so with some degree of reluctance and regretted the necessity which they thought existed for it, but which we think did not exist. I think the Minister was rather humorous when he suggested an extension of the time. That is increasing the drop instead of shortening it. I think the Minister ought to accept the amendment suggested by Senator Johnson, and if he does not the House ought to vote for the amendment.
Amendment put and declared carried.
Report Stage concluded. Fifth Stage ordered for Wednesday next.
Cathaoirleach
Next week we will have before us the Appropriation Bill, the Land Bill, the Trim Urban Council Bill, the Electricity (Finance) Bill, and the Agricultural Credit Bill. I would like to have the opinion of Senators as to whether the Seanad should sit on Tuesday, Wednesday, Thursday and Friday and dispose of the business before it, or whether we should sit in the ordinary way on Wednesday, Thursday and Friday. That may mean that we would have to come back in the week following.
I suggest that we should meet on Wednesday next.
I suppose there is no use in protesting against Bills like the Agricultural Credit Bill being brought before this House at the end of the session.
I suggest we meet on Wednesday next as usual.
Agreed.
The Seanad adjourned at 5 o'clock until Wednesday, 17th July, 1929.