Cullen v Toibin

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1984
• Neutral Citation: 1984 WJSC-HC 237
• Docket Number: No. 8271P/1983
• Date: 01 January 1984

1984 WJSC-HC 237

No. 8271P/1983

CULLEN v. TOIBIN & MAGIL PUBLICATIONS

JOHN CULLEN

PLAINTIFF

AND

COLM TOIBIN AND MAGILL PUBLICATIONS (HOLDINGS)LIMITED

DEFENDANTS

1 Judgment of Mr. Justice Barringtondelivered the 2nd day of December, 1983.

2 This is an application for an Interlocutory Injunction to restrain publication in the Defendants magazine "Magill" of an article concerning the Plaintiff while his appeal to the Court of Criminal Appeal is pending. The first-named Defendant is the editor and they second-named Defendants are the publishers of the saidmagazine.

3 The Plaintiff was convicted in the Central Criminal Court of the murder of one Dolores Lynch and of malicious damage to property and was on the 17th day of November, 1982 sentenced to penal servitude for life on the first count and to fifteen years penal servitude on the second.

4 He applied for a Certificate of Leave to Appeal which wasrefused. He immediately appealed against this refusal and his appeal is still pending before the Court of Criminal Appeal.

5 I have not seen the transcript of the proceedings in the Central Criminal Court but have been told by Mr. Mackey, who appeared for Mr. Cullen in the criminal proceedings, and also appears for him in these proceedings, that the only evidence against Mr. Cullen was the uncorroborated evidence of an alleged accomplice one Miss Elizabeth Madden. I am also informed by Mr. Mackey, and I accept, that the trial judge, in his charge, warned the jury that there was no corroboration for Miss Madden's evidence and that, while they could convict on her uncorroborated evidence, it would be dangerous to do so.

6 The grounds of appeal set out in Mr. Cullen's Notice of Appeal to the Court of Criminal Appeal against the refusal of the certificate are asfollows:-

7 1. The uncorroborated evidence of an accomplice is insufficient in law to sustain a conviction.

8 2. The uncorroborated evidence of an accomplice, of otherwise bad character, whose untrustworthiness as a witness to thetruth, has been established in evidence, is insufficient to sustain aconviction.

9 3. The uncorroborated evidence of an accomplice of otherwise bad character, whose untrustworthiness as a witness to the truth has been established in evidence, and who has been granted immunity from prosecution in relation to the offence as charged against the accused in which she was an accomplice, is insufficient to sustain aconviction.

10 4. The verdict of the jury cannot be supported by the evidence.

11 5. The jury failed to give any or any proper consideration to the directions in law of the Learned Trial Judge as to the danger of convicting on the uncorroborated evidence of Elizabeth Madden.

12 The publishers of "Magill" entered into an exclusive contract with Elizabeth Madden to publish an article, based on material supplied by her, in the forthcoming issue of Magill magazine. The Plaintiff seeks to restrain the publication of this article.

13 I have read the article which is a lengthy one. It is written with verve, and is, I am prepared to accept for the purpose of this application, a serious piece of investigativejournalism written about matters which may be thought to be legitimate objects of public interest and concern. But it is essentially Miss Madden's story written for her by a talented journalist. It deals with her life and background, her relations with Mr. Cullen, issues of guilt or innocence in relation to the offences charged, and with Mr. Cullen's background, character, psychological make-up and mode of living. It contains many serious and prima facie defamatory allegations. It touches on many matters some of which were given in evidence at the trial and some of which, according to Mr. Mackey were not. It purports to enter into Miss Madden's mind...