Attorney General v Edge

• Jurisdiction: Ireland
• Judgment Date: 01 January 1944
• Date: 01 January 1944
• Court: Supreme Court

The People (Attorney-General) v. Edge

THE PEOPLE (at the suit of the ATTORNEY-GENERAL)

and

MICHAEL EDGE (1)

Court of Criminal Appeal.

Supreme Court.

Criminal law - Kidnapping - Abduction of infant over fourteen years of age against will of guardian - Consent of infant - Whether charge of kidnapping at common law well founded - Admission of accused to bail pending decision of Court of Criminal Appeal - Application for order ofhabeas corpus.

M. E. was convicted of kidnapping a boy aged 14¹/₂ years by unlawfully carrying him away and secreting him against the will of his lawful guardian. At the trial, objection was taken on behalf of the accused that the charge of kidnapping in the indictment did not disclose any criminal offence, as at common law kidnapping properly consisted of taking a person forcibly from their own country into another; furthermore, as the boy was over fourteen years of age he was entitled to exercise a discretion as to where he would live and, in the exercise of that discretion, he had come voluntarily to live with M. E. The trial Judge overruled the objection, but granted a certificate that the case was a fit case for appeal to the Court of Criminal Appeal.

Held by the Court of Criminal Appeal that the charge of kidnapping as laid at common law was well founded and that the appeal should be dismissed.

The Court granted a certificate for appeal to the Supreme Court.

Held by the Supreme Court (Geoghegan, O'Byrne, Black, and Gavan Duffy JJ; Murnaghan J. dissenting) that the offence of kidnapping as charged against the appellant in the indictment was not an offence at common law and that the appeal should be allowed and the conviction quashed.

Criminal Appeal.

Appeal by the defendant, Michael Edge, to the Court of Criminal Appeal pursuant to a certificate granted by the trial Judge (Judge Shannon) under s. 31 of the Courts of Justice Act, 1924.

The appellant, Michael Edge, was charged in the Dublin Circuit Criminal Court on all indictment containing seven counts, and was found not guilty on the first six counts, but guilty on the seventh count.

The seventh count charged the appellant with kidnapping one, Joseph Edward Farrell, a boy aged about 14¹/₂ years, by unlawfully carrying him away and secreting him against the will of Philip John Southgate, his lawful guardian.

The principal grounds of appeal on which the certificate for appeal was granted were:—(1), as to whether count seven in the indictment disclosed any criminal offence, and (2), if so, whether there was any, or sufficient, evidence to support the verdict.

The facts of the case are sufficiently set out in the judgment of the Court of Criminal Appeal.

On the application of appellant's counsel, the Court granted a certificate for appeal to the Supreme Court (1)pursuant to s. 29 of the Courts of Justice Act, 1924.

At the conclusion of the case in the Circuit Criminal Court, the appellant, Michael Edge, had been sentenced to six months' imprisonment. All application to admit him to bail pending the determination of his appeal by the Court of Criminal Appeal was then made but was refused by the trial Judge.

Following this refusal, on May 29, 1942, a bail motion on his behalf was brought to the Court of Criminal Appeal (1).

Cur. adv. vult.

The judgment of the Court was delivered by Sullivan C.J.

Sullivan C.J. :—

Michael Edge was tried at the Dublin Circuit Criminal Court on the 18th, 19th, 20th and 21st days of May, 1942, on an indictment containing seven counts, the seventh count of which was as follows:—"Statement of offence: kidnapping. Particulars of offence: Michael Edge between the 19th and 24th days of February, 1942, in the City of Dublin and County of Wicklow, unlawfully carried away and secreted one, Joseph Edward Farrell, a boy aged about 14¹/₂ years against the will of Philip John Southgate, his lawful guardian."

He was found not guilty on counts 1 to 6 inclusive. He was found guilty on the seventh count and was sentenced thereon to six months imprisonment.

The learned Circuit Court Judge granted a certificate

for an appeal to this Court under s. 31 of the Courts of Justice Act, 1924, upon the following grounds:—

• (a) As to whether count seven in the indictment framed as above appearing disclosed any criminal offence; and,

• (b) If so, whether there was any, or sufficient, evidence to support the verdict.

Michael Edge pursuant to said certificate appeals to this Court and seeks to have said conviction quashed on the grounds stated therein. On notice, dated the 22nd May, 1942, he also applies to this Court for leave to appeal, the grounds for such application being:—

1. That the count in respect of which the accused was convicted does not disclose any offence known to the law.

2. That the said count should have been withdrawn from the jury.

3. In the alternative, that there was no evidence, or no sufficient evidence, to support the said count, and that the learned trial Judge should have directed the jury to acquit the accused of the offence charged in the said count.

4. Further, and in the alternative, that the learned trial Judge misdirected the jury as to the elements necessary to constitute the offence charged in the said count and in particular misdirected the jury, inter alia, in the following respects:—

• (a) By directing the jury that even if they found that the boy, Joseph Edward Farrell, ran away from school and went to the accused of his own free will and asked the accused to conceal him, the accused, by acceding to his request, was guilty of the offence charged.

• (b) By, in effect, directing the jury that upon the facts of the case the accused was guilty of the offence charged in the said count.

5. That the verdict was against the evidence or against the weight of the evidence.

6. That having regard to the findings of the jury in respect of the other counts in the indictment, the sentence is excessive.

The learned Circuit Court Judge at the trial of the said Michael Edge refused an application by counsel on his behalf to withdraw the charge in the said count from the jury, it being urged on behalf of said Michael Edge that this count did not disclose any offence known to the law. In granting his certificate the learned Circuit Court Judge made it clear that he did not entertain any doubt either that the said charge was well founded as an indictment at common law or that there was sufficient evidence to support the verdict of the jury.

Michael Edge is a man aged 35. He is a bootmaker and carried on business at Trinity Street, Dublin. He joined the Volunteer Force in 1929. At the time of the events charged in the indictment he was a Lieutenant in the Defence Forces residing at Island Bridge Barracks, Dublin.

The boy, Joseph Edward Farrell, was born on the 29th June, 1927, and resided with his parents at Seafield Road, Clontarf. The acquaintance of Michael Edge with Joseph Edward Farrell goes back a number of years. It began in Dufferin Avenue, where the boy was visiting from time to time his grandmother, a Mrs. Tapley. Michael Edge then lived two doors from Mrs. Tapley in the same street. The acquaintance developed into a strange association, in the course of which Michael Edge was much in the company of the boy, taking him frequently for walks, to the pictures, for tea, giving him sweets and presents, taking him for week-ends, and for visits to Bray, where they admittedly occupied the same bed in the hotel, where they stayed at the expense of Michael Edge. In 1941 the boy was a pupil attending as a day pupil St. Andrew's College.

The father of the boy became uneasy at this association, which, he alleged, was interfering with the boy's studies and conduct at school, and having an undesirable effect on his conduct at home, and on his attitude towards his parents, particularly towards his mother. The father of the boy remonstrated with Michael Edge over this association and informed him that he had decided to send his son to St. Andrew's College as a boarder. Michael Edge appears to have resented this decision. Edward Joseph Farrell went to the school as a boarder on the 9th February, 1942, and left it on the 19th February when he went to Island Bridge Barracks. During this period Michael Edge telephoned to the boy, saw the boy on several occasions at the school playground at Donnybrook and at Morehampton Road, where he was walking with other boys of the school, sent him a note through another boy named Little, and saw him outside the school, took him for a drive and, according to the evidence of the boy, stated to him that he (Edge), would help him to get away from the school if the boy did not like it. The story of the boy's life at the school during this short period of ten days occupies much of the evidence in the case. It is clear from the evidence that the masters were under the impression that Michael Edge was an uncle or relative of the boy. In fact, he was no relation.

The evidence of the boy was that he left the school because he was afraid that Michael Edge would come and take him. On the evening of the 19th February, when the boy had left the school and arrived at Island Bridge Barracks, a conversation took place between Lieutenant Cummins and Michael Edge, which Lieutenant Cummins narrates as follows:—

Question 286. "When next did you see Edge?" "I went to the room about 10 to 12 o'clock that night and when I went in I was amazed to see the boy sitting in the armchair in front of the fire, and Lieut. Edge said to me immediately: 'It has happened'—meaning that the boy, had run away from school; and then he asked what I thought he should do, that it was his idea, that if he could hide the boy in the country for about a month that in the meantime his parents would be so glad by the end of the month to get him back that they might re-consider their decision to keep him in the boarding school. He asked what advice I would give, so I said...