Attorney General v Kyle

• Jurisdiction: Ireland
• Judgment Date: 01 January 1933
• Date: 01 January 1933
• Court: Court of Criminal Appeal (Irish Free State)

Court of Criminal Appeal.

Attorney-General v. Kyle.

THE ATTORNEY-GENERAL

and

SAMUEL JOHNSTON KYLE (1).

Criminal law - Arson - Accused charged with setting fire to his own house - Intent to defraud - Proof - House alleged to have been insured - Policy of insurance not produced at the trial - No notice to produce served - Secondary evidence objected to by accused - Statements made by accused - Whether sufficient to establish that house was in fact insured - Malicious Damage Act, 1861 (24 & 25 Vict. c. 97), sect. 3.

Criminal Appeal.

Samuel J. Kyle appealed under sect. 31 (ii) of the Courts of Justice Act, 1924 (No. 10 of 1924), from an order of the Judge of the Midland Circuit (Judge Moonan) refusing to grant him a certificate that his case was a fit one for appeal to the Court of Criminal Appeal.

He was tried at the Sligo Circuit Court on 7th March, 1932, and convicted of setting fire to his own house with intent to defraud. He was sentenced to one year's imprisonment without hard labour.

By an order of the Court of Criminal Appeal dated 29th July, 1932, the applicant was granted leave to appeal against the said conviction, such appeal to be limited to the first ground set out in the notice of appeal, that is to say:—

(1) That the learned trial Judge did not direct the jury to acquit the accused on the grounds:—

(a) That no application for compensation was made by the accused, and that there was no evidence adduced at the close of the case for the prosecution that such application for compensation had been made.

(b) That no evidence had been adduced by the prosecution that a policy of fire insurance had been effected on the premises, the subject-matter of this prosecution.

(c) That the best evidence had not been tendered by the prosecution of the alleged policy of fire insurance on the said premises.

(d) That there was no evidence of intent to defraud.

K. was charged under sect. 3 of the Malicious Damage Act, 1861, with maliciously setting fire to a house with intent to defraud. The house was K.'s own house, and, in order to establish an intent to defraud, it was alleged that the house was insured. The policy of insurance was not produced at the trial, and K. objected to secondary evidence of it being given, no notice to produce having been served on him or on anyone else. K. was convicted and sentenced. On appeal to the Court of Criminal Appeal:

Held that it was not necessary that the policy of insurance should have been produced, that certain admissions which had been made by K. constituted admissible evidence proper to be submitted to the jury that the house was in fact insured, and accordingly the appeal must be dismissed.

Sullivan P. :—

The judgment of the Court will be delivered by Mr. Justice FitzGibbon.

FitzGibbon J. :—

The appellant was indicted for "arson contrary to sect. 3 of the Malicious Damage Act, 1861," the "Particulars of Offence" being that he "on the 7th day of March, 1932, in the County of Sligo maliciously set fire to a house with intend to defraud."

The trial took place at Sligo on the 5th and 6th days of July, 1932, before the Judge of the Midland Circuit No. 5, when the jury found the appellant guilty with a strong recommendation to mercy, and he was sentenced to a term of imprisonment for twelve months, without hard labour.

He made an application under sect. 31 of the Courts of Justice Act to the Judge of the Circuit Court for a

certificate that the case was a fit case for appeal, and when this application had been refused, he appealed to this Court from such refusal, and this Court, by order, dated 29th July, 1932, gave liberty to him to appeal against his conviction upon the following grounds, to which his appeal was expressly limited by the order itself:—

"1. That the learned trial Judge did not direct the jury to acquit the accused on the grounds:—

(a) That no application for compensation was made by the accused and that there was no evidence adduced at the close of the case for the prosecution that such application for compensation had been made.

(b) That no evidence had been adduced by the prosecution that a policy of fire insurance had been effected on the premises the...