Attorney General v O'Sullivan

JurisdictionIreland
CourtCourt of Criminal Appeal (Irish Free State)
Judgment Date26 May 1930
Date26 May 1930

Court of Crim. App.

Attorney-General v. O'Sullivan
THE ATTORNEY-GENERAL
and
WM. O'SULLIVAN (1)

Criminal appeal - Charge of attempted sodomy - Complainant aged 10 years - Sworn testimony - Necessity of preliminary examination as to competency - Corroboration - Instructions to jury - Attack on character in cross-examination - Admissibility of evidence of general good character - Form of evidence - Inconsistency of findings - Children Act, 1908 (8Edw. 7, c. 67), sects. 30, 131 - Criminal Justice Administration Act,1914 (4 & 5 Geo. 5, c. 58), sect. 28, sub-sect. 2.

Criminal Appeal.

William O'Sullivan appealed under sect. 31 (ii) of the Courts of Justice Act, 1924 (No. 10 of 1924), from an order of Circuit Judge Kenny, refusing to grant a certificate that the case was a fit one for appeal to the Court of Criminal Appeal.

He was tried at Cork Circuit Court on March 26th, 1930, and was convicted of an attempt to commit sodomy. He was found "not guilty" of an indecent assault on a male person, and no finding was entered on a charge of common assault. He was sentenced to five years' penal servitude.

The facts appear sufficiently from the judgment of the Court.

The application for leave to appeal was based on the following main grounds:—

1. That the Judge admitted evidence of character of a witness for the prosecution, and allowed such evidence without notice.

2. That the Judge admitted in evidence documents purporting to contain statements made by persons who were not witnesses or sworn before the Court, and admitted in evidence the contents of such documents.

3. That the Judge allowed evidence in writing to be put before the Court to contradict the sworn evidence of a witness.

4. That the Judge's charge to the jury contained comments on such evidence.

5. That the Judge did not sufficiently warn the jury as to corroboration, and misdirected the jury in his direction as to what constituted corroboration.

6. That the verdict was against evidence and the weight of evidence.

7. That the verdict was inconsistent and ambiguous.

8. That the Judge did not hold the preliminary or proper investigation in respect of the capacity of the complainant to understand the nature of an oath, or to give evidence, in accordance with 8 Edw. 7, c. 67, sect. 30.

9. That the Judge misdirected the jury in allowing a statement made as a complaint to go to the jury as corroboration of the complainant's evidence.

10. That the course of the trial was irregular, and calculated to prejudice the jury.

The appellant was convicted of an attempt to commit sodomy. He was found "not guilty" on a second count of indecent assault on a male person, and, on a third count of common assault, no finding was entered. The complainant, a boy of 10 years, gave sworn testimony. The appellant applied to the Court of Criminal Appeal for leave to appeal.

The appellant contended that the complainant, being a child under the age of 14 years, should not have been allowed to give evidence without preliminary examination as to his competence to give evidence on oath; that there was not sufficient corroboration of the boy's story, and the jury were not warned as to the necessity for corroboration; that evidence was inadmissible to establish the general good character of the boy, and that the form of the evidence allowed was improper; and that the findings were inconsistent.

Held, that the purpose of sect. 30 of the Children Act, 1908, was to enable a child "of tender years" (age not defined by the statute) who does not, in the opinion of the Court, understand the nature of an oath, to give evidence not upon oath if, in the opinion of the Court, the child has sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. The section did not alter the previous law as to the reception of the evidence of children given on oath which was and is a question, not of age, but of the intelligence and actual mental capacity of the child witness, his sense and reason of the danger and impiety of falsehood. Strictly speaking, the objection to the reception of the child's evidence on oath should be taken, and the witness, interrogated by the Court, on the vraie dire, but the practice became established that the objection might be taken on facts elicited (after the person was sworn as witness) during the direct examination or even during the cross-examination, and, if it prevailed, the Judge would strike out the evidence and withdraw it from the jury.

Held, further, that if the evidence for the prosecution is not unsworn evidence received under the provisions of sect. 30 of the Children Act, 1908, as amended by sect. 28, sub-sect. 2, of the Criminal Justice Administration Act, 1914, corroboration is not a statutory requirement, but it is extremely desirable...

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11 cases
  • DPP v Mulvey
    • Ireland
    • Court of Criminal Appeal
    • 16 March 1987
    ...danger of convicting in the absence of corroboration. Attorney Gerneral v. CraddenIR [1955] I.R. 130; Attorney General v. O'SullivanIR [1930] I.R. 552 and Reg. v. KnightWLR [1966] 1 W.L.R. 230 followed. 3. That in the instant case the jury was told of its role in assessing what was corrobor......
  • DPP v Kinsella
    • Ireland
    • Court of Appeal (Ireland)
    • 23 October 2018
    ...tends to prove that the accused person committed the offence. Corroboration may be found in a simple fact. For example, in the Attorney General v. O'Sullivan [1930] IR 552, a case of sodomy, corroborative evidence was the evidence of boxes found in a room. Kennedy CJ, delivering the judgme......
  • DPP v E.C.
    • Ireland
    • Court of Appeal (Ireland)
    • 12 May 2016
    ...v. Murphy [2005] 2 I.R. 125; The People (Director of Public Prosecutions) v. Gilligan [2006] 1 I.R. 107; Attorney General v. O'Sullivan [1930] I.R. 552; and Attorney General v. McGrath (Unreported, Court of Criminal Appeal, 15th June, 1925 – referred to in Sandes, Criminal Practice, Procedu......
  • DPP v Brian Meehan
    • Ireland
    • Court of Criminal Appeal
    • 24 July 2006
    ...v LEVISON 1932 IR 158 DPP v MURPHY 2005 2 IR 125 MAY CRIMINAL EVIDENCE 2ED 330 DPP v GILLIGAN UNREP SUPREME 2005/20/3987 AG v O'SULLIVAN 1930 IR 552 CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7 CRIMINAL EVIDENCE ACT 1992 S28 DPP v REID 1993 2 IR 186 DPP, PEOPLE v MURPHY CCA EX-TEMP 3.11.1997 1......
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