[1981] 1 I. R. 233 Neville Francis King

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1 I.R.

King v. The Attorney General
McWilliam J.


accused. In The People (Attorney General) v. O'Callaghan 5Ó Dálaigh C.J. said at page 509 of the report:— "The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until tried and duly found guilty."

In R. v. Harris 6 Humphreys J. said at p. 113 with regard to the amendment made by s. 15 of the Act of 1871:— "That obviously allows, in such a case, something to be given in evidence which would otherwise, according to the common law of England, not be admissible, this is, laying before the tribunal of fact evidence of the previous bad character of the accused person although he had not himself put his character is issue." In R.v. Goodwin 7 the same judge, when giving the judgment of the Court of Criminal Appeal in England in a case concerning s. 7 of the Act of 1871, said at pp. 523-4:— "The provisions of s. 7 are unusual in that they require that the jury shall know that the man whom they are trying has been previously convicted, and is likely, according to what is known of him, to commit the offence with which he is charged. On most charges, the greatest care is taken to keep precisely that fact from the knowledge of the jury. That being so, whenever a charge under s. 7 is brought the judge and everyone else concerned in the case should be meticulously careful to see that the accused person is not convicted except upon clear and unmistakable evidence that he has committed the particular offence charged against him."

Those cases are very relevant when considering whether the constitutional concept of justice, which imports fairness and fair procedures, is or is not observed in the case of a prosecution under s. 4 of the Act of 1824, as amended. Although I accept the proposition that a Justice is less likely to be prejudiced than a jury, evidence of previous character and convictions is bound to affect anyone's mind to a greater or lesser extent; it appears to me that the provision enabling such evidence to be given was included to enable a Justice to convict in the absence of other satisfactory evidence.

There are two ways in which that part of s. 4 of the Act of 1824, as amended, offends against the provisions of the Constitution. First, the provisions that evidence may be given of the known character of the accused and that no evidence need be given of any act showing, or tending to show, intent are contrary to the concept of justice which is implicit in the Constitution. Secondly, that part of the section offends against the provision that all citizens shall be held equal before the law, since a suspected person or a previously convicted person can be prevented from doing what it is perfectly lawful for any other citizen to do, i.e., walk slowly, dawdle or stop

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