Attorney General v O'Leary

• Jurisdiction: Ireland
• Judgment Date: 24 July 1926
• Date: 24 July 1926
• Court: Court of Criminal Appeal (Irish Free State)

Court of Crim. App.

Attorney-General v. O'Leary.

ATTORNEY-GENERAL

and

CORNELIUS O'LEARY AND HANNAH O'LEARY (1)

Criminal Appeal - Evidence - Admissibility - Statements as to prisoner's demeanour and disposition - Evidence of character - Murder committed by two as joint principals - Objection to Judge's charge.

Criminal Appeal.

The appellants, Cornelius O'Leary and Hannah O'Leary, brother and sister, had been convicted at the Central Criminal Court on an indictment charging them with the wilful murder of their brother, Patrick O'Leary, and they were sentenced to death. Hanna J., the trial Judge, refused their application for a certificate under sect. 31 of the Courts of Justice Act, 1924 (No. 10 of 1924), that the case was a fit case for appeal; and by way of appeal from that refusal they applied to the Court of Criminal Appeal for leave to appeal.

The grounds upon which the appellants based their application were:—

1. Illegal evidence was admitted at the trial:—

• (a) In allowing as evidence statements by accused in reply to questions by police officers administered without caution, and which questions were in the nature of trap

  questions and which were asked at a time the police officers had suspicions of the accused;

• (b) Said statements were not voluntary statements;

• (c) In allowing statements made in reply to others in the presence of police officers, said statements being in reply to inducements held out by strangers in the presence of police officers;

• (d) That evidence of the disposition of the accused and other members of the family was not evidence and was illegally admitted.

2. (a) That the Judge misdirected the jury in stating that there was evidence from which concerted action to commit the crime could be inferred; (b) in dealing with the question of the onus of proof; (c) in not putting to the jury that there was a question of who struck the fatal blow.

3. That the verdict was against the weight of evidence insomuch as there was not evidence of concert.

4. That the course of the trial was unsatisfactory, insomuch as counsel for the accused was restrained by the Judge from fully pointing out to the jury the possibility of the crime having been committed by a member of the family not on trial.

The facts as to the circumstances of the family and the discovery of portions of the body of the murdered man are fully set out in the Chief Justice's judgment. After the inquest the remains were removed in a coffin to the house of the O'Learys. According to the evidence of Guard Patrick Ruane, while he was in the house, Mrs. M'Carthy, a neighbour, said to the mother of the prisoners in their presence: "It is a shame, Mrs. O'Leary, to see your son in such a state, and it is easily known who done it." The male prisoner said: "I am innocent," and the female prisoner said nothing. Other evidence given by the police showed that, when they came to search for the body, the prisoner, Cornelius O'Leary, when asked where was his brother Patrick, answered that he "went away to the fair at Bandon ten days before to sell a colt, and he had not returned since." At first the male prisoner identified the head of the deceased, then he said: "No, that is not him." At a later stage, William Whelton, a neighbour, said in the presence of the police: "I must certainly say, Con, it is a terrible state of affairs to see your brother cut up there in pieces, and you not a bit worried over it. I must also say, Con, that suspicions are strongly against you, and it is up to you to find the perpetrator and free yourself." The prisoner rubbed his hands together, and replied: "I am innocent any way; my hands are clean." The evidence given as to the disposition of the female prisoner is reproduced fully in the Chief Justices judgment.

Two prisoners, brother and sister, charged jointly with the murder of another brother, were convicted and sentenced to death. During the course of the trial the following questions were put by the Judge to one of the witnesses:—The Judge: "What kind of a woman was Hannah [the female prisoner] in disposition—was she cross?" Witness: "She was not cross to us." The Judge: "Had you any opportunity of observing her demeanour about her own place? Was she cross or good-tempered?" Witness:"When she would meet us she would not want to talk. That is how she would treat us." The Judge: "Was she different from Mary Anne [another sister]?" Witness: "Yes, she was." The Judge: "Mary Anne was a good-tempered, pleasant woman?" Witness: "Yes, my Lord."On appeal to the Court of Criminal Appeal objection was taken, on behalf of the prisoners, to the admissibility of this as evidence; it was submitted that it was evidence of the bad character or disposition of the female prisoner, which could only be admitted if evidence had first been offered by her as to her own good character; and could only be proved by evidence of general reputation and not by the experience of the particular witness.

Held, that the evidence and the answers of the witness did not refer to moral character, nor to general reputation, nor to a moral disposition or tendency to commit the crime of murder. And that the witness stated nothing but the demeanour and manners of the prisoner and of her sister as manifested to the witness, and accordingly, as the evidence was, in the circumstances, relevant, the objection to its admissibility was unsustainable.

The Queen v. Rowton, 34 L.J.M.C. 57, distinguished.

Cur. adv. vult.

The judgment of the Court was delivered by Kennedy C.J.:—

The appellants, Cornelius O'Leary and Hannah O'Leary, brother and sister, have been tried at the Central Criminal Court, and convicted on indictment upon the charge that they did, on the 26th February, 1924, at Kilkerran, in the County of Cork, murder...