Attorney General v Duffy

• Jurisdiction: Ireland
• Judgment Date: 19 December 1931
• Date: 19 December 1931
• Court: Court of Criminal Appeal (Irish Free State)

Attorney-General v. Duffy.

ATTORNEY-GENERAL

and

JOSEPH DUFFY (1)

Court of Crim. App.

Criminal law - Practice - Acts of gross indecency - Consecutive sentences of imprisonment with hard labour - Limitation on aggregate period - Series of similar charges tried together - Apparent corroboration of each charge by evidence in other charges - Discretion to put prosecution to election - Complainants consenting parties and accomplices - Necessity of corroboration and warning to jury - Re-trial - Costs against the State - Application for bail after final order for re-trial - Time of making - Courts of Justice Act, 1928 (No. 15 of 1928), sect. 5.

There is to be found in the body of operative criminal legislation which the Irish Free State has taken over from the late United Kingdom a clear indication of a legislative intention that no one shall be required to suffer the punishment of imprisonment with hard labour for a continuous period exceeding two years. Accordingly, the Court will not allow consecutive sentences of imprisonment with hard labour, exceeding in the aggregate two years, to stand; but the Court has power to vary the sentences by reducing them so as to bring them within the limitation applicable.

So held by the Court of Criminal Appeal.

The applicant for leave to appeal had been tried on an indictment wherein he was charged in separate counts with a series of similar offences. In four counts he was charged with offences of gross indecency on different occasions against different male persons. On these counts he was convicted and sentenced to one year's imprisonment with hard labour on each count, the sentences to run consecutively.

Held, that a re-trial should be ordered, with a direction to the Judge assigned to try the case to put the prosecution to their election as to which of the charges in the indictment they would proceed with in the first instance, on the following grounds:—1. That the effect of trying the four charges together was substantially to supply the lack of corroborative evidence in each of the four charges taken separately, the Court being of opinion that the evidence given in support of each particular charge must inevitably have tended, in the mind of the jury, to import evidence of an apparently corroborative character in the case of each of the other charges. 2. That the trial Judge did not warn the jury of the danger of convicting the applicant on the uncorroborated evidence of boys who, upon the evidence for the prosecution, must be considered as having been in the position of accomplices of the applicant, to whose alleged criminal acts they all appeared to have consented.

Held, further, that an application for the exercise of the jurisdiction, as to admitting the applicant to bail where a re-trial is ordered, conferred by sect. 5 of the Courts of Justice Act, 1928 (No. 15 of 1928), ought, if possible, to be made immediately upon the determination of the application for leave to appeal and the granting of a final order thereon, before the Court, which is in possession of the facts, separates.

Criminal Appeal.

The applicant, Joseph Duffy, was tried on 28th October, 1930, at the Circuit Criminal Court, City of Dublin, on an indictment comprising eight separate counts. In four counts he was charged with indecent assaults on different occasions against different male persons. On these counts the trial Judge (Judge Shannon)

directed the jury, on the evidence, not to convict. In the four other counts he was charged with offences of gross indecency against the same several individuals. On these counts he was convicted, and the trial Judge imposed four sentences of one year's imprisonment with hard labour, one on each count on which the accused was convicted, and he directed that the four sentences should run consecutively.

The applicant applied to the Court of Criminal Appeal for leave to appeal from the conviction and sentences, the grounds of the application being:—

1. The refusal of the trial Judge to put the prosecution to their election between the various counts in the indictment.

2. The neglect of the trial Judge to warn the jury against the danger of convicting upon the uncorroborated testimony of an accomplice.

3. That the sentence, amounting to four years' imprisonment with hard labour, was unknown to the law, the maximum punishment being two years' imprisonment with hard labour.

...