Attorney General v Kirwan

• Jurisdiction: Ireland
• Judgment Date: 19 May 1943
• Date: 19 May 1943
• Court: Supreme Court

Court of Criminal Appeal.

Supreme Court.

The People (Attorney-General) v. Kirwan

THE PEOPLE (at the suit of the Attorney-General)

and

BERNARD KIRWAN

Criminal law - Evidence - Murder - No direct evidence of killing, or of identification of limbless trunk of human body which had been found - Whether circumstantial evidence admissible to prove fact of death and identity of limbless body - Admissibility of evidence disclosing that accused had served a term of penal servitude for another offence - Principles governing the admission of such evidence - Jurisdiction of Supreme Court to arrest execution of sentence of death pending determination of appeal from Court of Criminal Appeal.

Criminal Appeal.

Application for leave to appeal by the accused, Bernard Kirwan, from the refusal of the trial Judge (Martin Maguire J.) to grant a certificate to allow an appeal.

Bernard Kirwan was convicted at the Central Criminal Court of the murder of his brother, Laurence Kirwan, on 22nd November, 1941.

The principal grounds of appeal were that "there was no legal evidence of the fact of the death of Laurence Kirwan," and "that the trial Judge was wrong in law in admitting evidence which showed that the prisoner had been convicted of a criminal offence and undergone a sentence of penal servitude."

The facts as proved in evidence at the trial are sufficiently stated for the purpose of this report in the judgment of the Court of Criminal Appeal delivered by Sullivan C.J.

On the application of counsel for the appellant, the Court certified, pursuant to s. 29 of the Courts of Justice Act, 1924, that the decision involved a point of law of exceptional public importance, and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.

The grounds of appeal on which the certificate was granted were as follows:—

(1) Whether, in the absence of direct evidence of identification of the limbless body and of a killing, and of proof by admission of the fact of his death, the trial Judge was entitled to leave it to the jury to infer the death of Laurence Kirwan.

(1) Was evidence which disclosed that the accused had served a term of penal servitude for another offence admissible at the trial?

The Court of Criminal Appeal, having dismissed the appeal, made an order pursuant to s. 6, sub-s. 2, of the Courts of Justice Act, 1928, fixing 17th May, 1943, as the day for the execution of the sentence of death imposed by the trial Judge.

An application was then made on behalf of the appellant to the Supreme Court (2) for an order staying the execution of the sentence of death pending the determination of the appeal by that Court.

In accordance with the certificate granted by the Court of Criminal Appeal the appellant appealed to the Supreme Court (5).

The accused was convicted of the murder of his brother L. K. The accused and his brother L. K. had resided in the same house. At the trial, no direct evidence was given of the killing of L. K., but it was proved that a limbless trunk of a human body had been found buried in a bog some miles from where the accused and L. K. lived. Medical evidence was given as to the identity of this limbless body. Evidence was also given by the prosecution which disclosed that previous to the alleged murder the accused had served a term of penal servitude for another offence. The accused applied to the Court of Criminal Appeal for leave to appeal against his conviction on the grounds that there was no legal evidence of the death of L. K., and that the trial Judge was wrong in law in admitting evidence which disclosed to the jury that the accused had been previously convicted of a criminal offence.

The Court of Criminal Appeal refused the application for leave to appeal but gave a certificate allowing the accused to appeal from their decision to the Supreme Court. The grounds of appeal on which the said certificate was granted were:—(1) Whether, in the absence of direct evidence of identification of the limbless body and of a killing and of proof by admission of the fact of his death, the trial Judge was entitled to leave it to the jury to infer the death of L. K. (2) Was evidence which disclosed that the accused had served a term of penal servitude for another offence admissible at the trial?

Held by the Supreme Court (Murnaghan, Geoghegan, O'Byrne and Black JJ.)—

1. In the absence of direct evidence, the fact of death and the identification of the limbless body with the person alleged to have been murdered were properly proved by circumstantial evidence.

2. Evidence which disclosed that the accused had committed an offence other than that charged in the indictment was admissible as being relevant to an issue which the jury had to determine.

Principles governing the admission of such evidence discussed.

3. The Supreme Court has an inherent jurisdiction to arrest the execution of a sentence of death pending the determination of an appeal from the Court of Criminal Appeal.

Cur. adv. vult.

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

Sullivan C.J.:—

Bernard Kirwan was tried before the Central Criminal Court on an indictment charging that on the 22nd November, 1941, in the county of Offaly, he murdered Laurence Kirwan. He was convicted and sentenced to death. He now applies to this Court for leave to appeal against his conviction.

The accused, Bernard Kirwan, and the deceased, Laurence Kirwan, were brothers, and on the 22nd November, 1941, and for some months prior thereto, they were living together on a farm at Ballycloughan, Rahan, in the County of Offaly. The farm, a substantial one, comprising about 70 acres, had been purchased by their mother, and at the date of her death in June, 1937, she was living on the farm with Laurence. The accused had being living with his mother and Laurence on the farm until some months before his mother's death, when he was committed to Maryborough Gaol to undergo a sentence of penal servitude. He was discharged from prison in June, 1941, and in the following month he returned to live with Laurence, who had since his mother's death remained in occupation of the farm and received the profits of it.

His mother had made a will by which she directed that all her property, including the farm and stock, should be divided amongst her six children, but the will was never proved, and it would seem that no claim was made against Laurence by any of the other children, all of whom except Bernard had left the farm and settled elsewhere.

From the month of July, 1941, until the night of Saturday the 22nd November, 1941, the only persons living in the house were Laurence, Bernard, and a man named John Foran, who was then, and had been for several years, employed by Laurence as a farm labourer.

On that evening Foran was not in the house, as he had been sent by the accused on an errand, and he did not return until midnight. After Foran had left, Laurence and the accused were alone in the house. When Foran returned there was no sign of Laurence, and he has never since been seen. Prolonged and extensive inquiries and searches by the Guards failed to trace him. He had disappeared.

On the 30th May, 1942, the torso of a man was found buried in Peter Leonard's bog at Ballincur. The arms, legs, pelvis, and head were missing, the body having been dismembered apparently by blows of a chopper or hatchet. The cause of death could not be ascertained, but doctors who examined the torso were of opinion that it had been buried for more than three, and less than eighteen, months.

On the 14th August, 1942, the accused was arrested and charged with the murder of his brother. He was tried on that charge before the Central Criminal Court in January, 1943, convicted, and sentenced to death.

The case made by the prosecution was that Laurence Kirwan was murdered by the accused on the night of 22nd November, 1941, and that the torso, found on the 30th May, 1942, in Ballincur bog, was that of Laurence Kirwan. At the trial 120 witnesses were examined on behalf of the State; 9 witnesses, including the accused, gave evidence for the defence. The evidence in support of the charge was entirely circumstantial.

In his charge the learned trial Judge—Maguire J.— reviewed the evidence at great length and gave clear and adequate directions to the jury in respect of every matter upon which a direction was necessary or desirable. The charge has not been challenged or criticised in this Court by counsel for the accused, and it is therefore unnecessary to refer to it in detail. The learned Judge directed the jury that before they convicted the accused they must be satisfied that the torso was part of the body of Laurence Kirwan; he told them that the case against the accused rested on circumstantial evidence, and that unless such evidence led to one rational conclusion only it was of no value, and he further told them that they were entitled to arrive at a conclusion as a result of moral certainty beyond reasonable doubt.

The notice of application for leave to appeal states that the application is based on eight grounds therein mentioned, but in the argument addressed to this Court four grounds only were relied on. These grounds are:—

(1) That the learned Judge misdirected himself in law in refusing the application of prisoner's counsel for a direction.

(2) That there was no legal evidence of the fact of the death of Laurence Kirwan.

(3) That the learned Judge misdirected himself in law in admitting evidence which showed that the prisoner had been convicted of a criminal offence and undergone a sentence of penal servitude.

(4) That evidence in rebuttal was wrongfully admitted by the learned Judge, notwithstanding the objection of prisoner's counsel.

The first and second of these grounds were dealt with together, as Mr. O'Briain stated that his application to the trial Judge for a direction was based on the ground...