Attorney General v McCabe

Judgment Date03 December 1927
Date03 December 1927
CourtCourt of Appeal (Irish Free State)

Court of Crim. App.

Attorney-General v. M'Cabe

Criminal appeal - Evidence - Admissibility - Evidence of criminal acts other than those charged - Several felonies - Trial of one - Exculpatory statements not amounting to confessions - Statements in answer to questions put by police officer - No caution administered - Ipsissima verba of statement of accused not essential.

Criminal Appeal.

The applicant, Henry M'Cabe, was convicted of the murder of Peter M'Donnell on November 13th, 1926, at the Central Criminal Court, and was sentenced to death. At the close of the trial, counsel for the applicant applied to the trial Judge for a certificate under sect. 31 of the Courts of Justice Act, 1924 (No. 10 of 1924), that the case was a fit one for appeal, but the Judge refused to grant the certificate; and by way of appeal from that refusal the applicant applied to the Court of Criminal Appeal for leave to appeal.

The grounds of the application were:—

1. The admission of statements made by the applicant on the 1st day of April, 1926, and on divers dates from the 2nd to the

12th of April, 1926, he at that period not being under arrest, and that such statements were not his ipsissima verba; and

2. Non-direction by the learned trial Judge in failing to warn the jurors of the necessity of segregating the evidence tendered in respect of the particular offence for which the applicant was tried from the evidence admitted in respect of five other felonies alleged to have been committed between the 27th and the 31st of March, 1926.

M'C. informed the Civic Guard that the house at which he worked as gardener was on fire. When the Guards arrived they found the windows of the house closed and the shutters fastened. On forcing an entrance the Guards found all the occupants of the house—three men and three women— dead within. Separate indictments were preferred against M'C. for the murder of each of the six persons; he was, however, tried only on the charge of murdering one. The evidence was clear that the house had been deliberately set on fire. Medical expert opinion, founded upon an examination of the bodies, was that the six people were all dead before the house was set on fire. M'C. was convicted and sentenced to death. On an application to the Court of Criminal Appeal for leave to appeal:

Held, that the evidence as to the fire, and as to each of the dead bodies, its position and, condition (including evidence as to injuries inflicted and as to the presence of arsenical poisoning), was all relevant evidence for the prosecution, properly admitted and properly left to the jury.

It is not the law that a statement must be excluded from evidence on the sole ground that either the statement was made in answer to questions put by a police officer to the accused or that it was made without a caution having been first administered. In such cases it is a matter for the Judge at the trial to decide whether, in his discretion, he will admit the statement or not, having regard to all the circumstances, and observing the legal requirement that the statement shall be voluntary, though not necessarily volunteered.

However desirable it may be to have the ipsissima verba of a deponent, it is not the law that the statement of an accused person must be rejected if it be not in his ipsissima verba. It is, however, a matter for consideration by the trial Judge in arriving at his decision as to the admission or rejection of the statement.

Cur. adv. vult.

The relevant facts are fully set forth in the judgment of the Court.

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

This is an application for leave to appeal pursuant to sect. 32 of the Courts of Justice Act, 1924. The applicant, Henry M'Cabe, was on the 13th November, 1926, after a trial at the Central Criminal Court extending over six days, in the course of which evidence was given by sixty-three witnesses, convicted of the murder of Peter M'Donnell, and sentenced to death. At the close of the trial, counsel for the applicant applied to the trial Judge (O'Byrne J.) for a certificate that the case was a fit one for appeal, but the Judge refused to grant such certificate. The grounds stated for that application were the same as those upon which the application to this Court has been founded.

Peter M'Donnell had formerly, with other members of his family, carried on a business in the west of Ireland. Some years ago they retired from business, and came to live at Malahide, in the County Dublin, where they acquired a residence known as "La Mancha." Peter M'Donnell lived there with his brother, Joe M'Donnell, and his sisters, Annie M'Donnell and Alice M'Donnell. The only other persons living in the house were a maid-servant, Mary...

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16 cases
  • DPP v Hoey
    • Ireland
    • Supreme Court
    • 1 Enero 1988
    ...others whom the gardaà did not believe were involved. Attorney Generalv. ClearyDLTR 72 I.L.T.R. 84 and Attorney Generalv. McCabeIR [1927] I.R. 129 applied. The Court of Criminal Appeal certified that its decision involved points of law of exceptional public importance and on appeal by the a......
  • People (Attorney-General) v Galvin
    • Ireland
    • Court of Criminal Appeal
    • 2 Febrero 1964
    ...were voluntary statements and were unconnected with those made at 12.15 a.m. R. v. Johnston15 Ir. C.L.R. 60; Attorney-General v. M'CabeIR[1927] I.R. 129 and People (Attorney-General)v. MurphyIR [1947] I.R. 236 approved. People (Attorney-General) v. C.DIJR [1943] Ir. Jur. Rep. 74 not approve......
  • The People (at the suit of the DPP) v Clement Limen
    • Ireland
    • Supreme Court
    • 18 Febrero 2021
    ...other. 59 Makin was expressly approved in a number of decisions by the Irish Court of Criminal Appeal in the 1920's. The case of Attorney General v. M'Cabe [1927] 1 I.R. 129 (“ M'Cabe”) is a clear example. Six people were found dead in a house that had been set on fire. The medical evidence......
  • DPP v Conroy
    • Ireland
    • Supreme Court
    • 31 Julio 1986
    ...ACT 1924 S1(f)(II) NA CHUN-KWAN V R 1974 HKLR 319 CONSTITUTION OF THE US 14TH AMDT CONSTITUTION ART 40.3 CONSTITUTION ART 40 AG V MCCABE 1927 IR 129 BASTO V R 91 CLR 628 WONG KAM-MING V R 1979 1 AER 939 Synopsis: EVIDENCE Admissibility Statement of accused - Prosecution's reliance on state......
  • Request a trial to view additional results
4 books & journal articles
  • Subject Index
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 12-4, November 2008
    • 1 Noviembre 2008
    ...v Lundin (1982) 75 Cr App R 90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .293Attorney-General vMcCabe [1927] IR129 . . . 298Attorney-General’s Guidelines on Jury Checks[1988]3 All ER 1087 . . . . . . . . . . . . . . . . . . . 162Attorney-General’s Reference (No.......
  • Indexes
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 18-4, October 2014
    • 1 Octubre 2014
    ...v Durnan (No. 2) [1934] IR 145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135Attorney-General vM’Cabe [1927] IR129 . . . . 134Auckland City Council v Bradley [1988] 1 NZLR103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Aytugrul vR (201......
  • Authenticating ‘Things’ in English Law: Principles for Adducing Tangible Evidence in Common Law Jury Trials
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 12-4, November 2008
    • 1 Noviembre 2008
    ...the note is authentic if it sets out the essence of what Dsaid: RvSmyth [2007] OJ No 1944 at [16]. Cf. Attorney-General vMcCabe [1927] IR 129. It is desirablethat the suspect be given the opportunity to read the note, make corrections and sign it. Cf. RvAccused [1991] 3 NZLR 439.212 RvArmst......
  • The Privilege against Self-Incrimination from Early Origins to Judges' Rules: Challenging the ‘Orthodox View’
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 18-2, April 2014
    • 1 Abril 2014
    ...been confirmed as a correctstatement of law by the Court of Criminal Appeal in Ireland on several occasions—seeAttorney-General vM’Cabe [1927] IR 129; The People (AG) vGalvin [1962] IR 325.165 As McGrath subsequently notes, ‘it is evident that there is a strong link between the right tosile......

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