DPP . v Brady and Others

 
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1982 WJSC-CCA 203

THE COURT OF CRIMINAL APPEAL

Nos 20-22/1979
D.P.P. . v. BRADY & ORS.
THE DIRECTOR OF PUBLIC PROSECUTIONS
.v.
JOHN JOSEPH BRADY, DERMOT JOSEPH MICHAEL CASSIDY AND SEAN MARTIN MULLIGAN
1

GRIFFIN J. on 25th July,1980

2

On Friday the 17th of December, 1976 between 9.15 p.m. and 9.30 p.m. four men using a stolen red Cortina car intercepted and blocked the path of a security van, which was about to leave a supermarket at Cornelscourt in the County of Dublin, with the intention of robbing the money being carried in the van. The four men, who were masked and were armed with three revolvers and one sawn-off shot gun, got out of the red Cortina and called upon the occupants of the security van to leave it. When the crew of the van failed to do so, several shots were fired at the van. The armed raid was interrupted and brought to an end by the arrival of an unmarked Garda car, of which the driver was Detective Sergeant John Pascal Anders, with Garda James McNamee as his observer. One of the assailants ran away and the remaining three got back into the red Cortina and fled, followed in hot pursuit by the Garda car. During the course of the chase, at times reaching speeds of upwards of 90 miles per hour, a number of shots were fired from the red Cortina at the Garda car. Detective Sergeant Anders was struck in the head by some of the shots and sustained very serious injuries, including brain damage.

3

Another Garda car, which had joined in the chase, continued to follow the red Cortina and shots were also fired at this car. The red Cortina was abandoned near Goggin's public house at Monkstown, Co. Dublin at or about 10.15 p.m. A cordon was thrown around the area by the Gardai, and at approximately l0.40 p.m. (i.e. some twenty five minutes later) the three accused were found by the Gardai walking on the railway line at Seapoint. They were taken into custody and brought in a Garda car to Dun Laoghaire Garda station where they arrived at about 10.45 p.m. They were detained in Dun Laoghaire Garda station until about noon on Saturday the 18th of December, when they were transferred to the Bridewell Garda station in the city of Dublin. During the period of their detention in Dun Laoghaire Garda station, and in the Bridewell, the several accused were interviewed by members of the Garda Siochana in the course of which verbal and written statements were made by them. In due course they were charged in the District Court, and were brought before the Special Criminal Court for trial on charges of (1) shooting at Detective Sergeant Anders with intent to murder, (2) shooting at Detective Sergeant Anders with intent to prevent their lawful apprehension, (3) assaulting a security man with intent to rob him of money, and (4) unlawful possession of firearms and ammunition with intent to endanger life.

4

The trial in the Special Criminal Court commenced on the 4th of May, 1977 and continued until the 25th of June, 1977, when the three accused were found guilty on each of these charges. Each of them has now applied to this Court for leave to appeal against such convictions.

5

The grounds of appeal upon which the application comes before this Court are set out In the notices of appeal in the following terms:

6

2 "1. That the Court of trial erred in law in admitting the alleged statements and admissions of these accused in that the said ruling admitting the alleged statements and admissions was against the evidence and the weight of the evidence and was perversa???query??????

7

2. That the Court erred in law in upholding the several claims of privilege raised by members of the Garda Siochana and in particular in its failure to hear Counsel for these accused with regard to the said claims of privilege." (This ground was relied on only in the case of the applicant John Joseph Brady).

8

3. That the trial was unsatisfactory in that the prosecution failed to produce all relevant and reasonably available evidence and in particular photographs of the accused, the evidence of the Prison Doctor Dr. Burke, and Prison Officers Breen and Horan and Garda Anthony Flynn and Detective Garda Mullen.

9

4. That there was not lawfully before the Court of Trial any evidence or any sufficient evidence, lawfully obtained, to enable the Court to find a verdict of guilty".

10

Two other grounds of appeal set out in the notice of application were abandoned at the outset of the hearing of these applications.

11

The transcript of the evidence given in the Special Criminal Court and of the submissions made by counsel and the rulings and decision of that Court consisted of more than 60 books.

12

Prior to the hearing of these applications, written submissions were made on behalf of the three applicants and on behalf of the prosecution. Those furnished by the applicants included a preliminary submission on matters of law which it was intended should govern the consideration by the Court of the several grounds of appeal. This related to the function of this Court on the hearing of an appeal or of an application for leave to appeal.

13

Before expressing any opinion on the several grounds of appeal as presented and argued, it is necessary to rule on the preliminary submission. The function of this Court on the hearing of an application for leave to appeal has been considered on many occasions over the years and was most recently considered and stated in this Court in The People v. Madden and Others, 1977 I.R. 336. In that case, this Court, in its judgment delivered by O'Higgins C.J., said at p. 340:

14

"In the appeals now before this Court, we have transcripts of the rulings of the Special Criminal Court made in the course, and at the end, of the trial on questions of law and findings of fact in relation to the admissibility of evidence, the sufficiency or cogency of the evidence and the reasons for the rulings and verdicts given. Therefore, subject to the grounds of appeal, it would seem to be the function of this Court to consider the conduct of the trial as disclosed in the stenographer's report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the Court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above".

15

Later, at p. 349, the Chief Justice said:

"It is of importance to emphasize that the function of this Court, as already outlined, is not itself to reach a conclusion on the facts but rather to ascertain whether the conclusion of fact reached by the trail Court (The Special Criminal Court) was justified having regard to the onus of proof which the law imposes upon the prosecution."

16

Although relying on that case, counsel for the applicants nevertheless sought to enlarge the function of this Court as therein stated. It was urged upon the Court that, under the provisions of the Constitution, and in particular of the preamble, this Court has a general jurisdiction of an unlimited nature to act in a positive role to ensure that justice is done. This Court was invited to apply the principles laid down in Watts v. Indiana, 338 U.S., 49, a decision of the Supreme Court of the United States of America, and in Reg v. Cooper, 53 CAH 82, a decision of the Court of Appeal (Criminal Division) in England. In Watts v. Indiana it was decided that the admission in evidence on the trial of statements of an accused person not proved to have been made voluntarily would be contrary to the principles or the due process of law. The decision in that case, if applied, would not enlarge or widen the function of this Court - in all criminal cases tried here, unless the trial Judge, in the case of a trial by jury, or the Court, in the case of a trial without a jurry, is satisfied that a statement is voluntary, there is no discretion to admit it and it must be excluded - see per Walsh J. in McCarrick v. Leavy, 1964 I.R. 225, and The people (A.G. v. Cummins, 1972 I.R. 312. If, therefore, a Court of Trail admitted in evidence a statement not proved to have been made voluntarily, this Court would have no hesitation in setting it aside. Reg v. Cooper has been cited to us as authority for a more extensive exercise of the functions and powers of the appellate Court on its review of a criminal trial than was stated in The People v. Madden cited above. In that case, Widgery L.J., delivering the judgment of the Court, said at p. 84:

17

"It has been said over and over again throughout the years that this Court must recognise the advantage which a Jury has in seeing and hearing the witnesses, and if all the material was before the Jury and the summing up was impeccable, this Court could not lightly interfere. Indeed until the passing of the Criminal Appeal Act, 1966 - provisions which are now to be found in section 2 of the Criminal Appeal Act, 1968 - it was almost unheard of by this Court to interfere in such a case.

18

However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the Jury should be set aside on the grounds that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the Court must in the...

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