DPP v Burke

• Jurisdiction: Ireland
• Judge: Lynch J.
• Judgment Date: 10 March 1986
• Neutral Citation: 1986 WJSC-CCA 391
• Docket Number: (98/1984)
• Court: Court of Criminal Appeal
• Date: 10 March 1986

1986 WJSC-CCA 391

THE COURT OF CRIMINAL APPEAL

The Chief Justice,

Mr. Justice Gannon,

Mr. Justice Lynch

(98/1984)

(99/1984)

DPP v. BURKE

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

.V.

DOMINIC BURKE AND JOHN O'LEARY

Citations:

AG V JOYCE & WALSH 1929 IR 526

DPP V CARNEY 1955 IR 324

DPP V MURTAGH 1966 IR 361

DPP, PEOPLE V CONROY 1988 ILRM 4

DPP, PEOPLE V LYNCH 1982 IR 64, 1981 ILRM 389

JUDGES RULES R8

Synopsis:

CRIMINAL LAW

Trial

Co-accused - Joint trial - Convictions - Application for separate trials refused by trial judge - Each accused making statements incriminating the other - Discretion of trial judge properly exercised - Proper charge to jury explaining that statement not evidence against other accused - Whether refusal resulted in miscarriage of justice - Held in negative - (98/84 - C.C.A. - 10/3/86) - 3 Frewen 92

|The People v. Burke|

CRIMINAL LAW

Trial

Co-accused - Joint trial - Convictions - Application for separate trials refused by trial judge - Each accused making statements incriminating the other - Discretion of trial judge properly exercised - Proper charge to jury explaining that statement not evidence against other accused - Whether refusal resulted in miscarriage of justice - Held in negative - Part of joint judgment - (99/84 - C.C.A. - 10/3/86) - 3 Frewen 92

|The People v. O'Leary|

1 Judgment of the Court of Criminal Appeal delivered the10th day of March 1986 by Lynch J.

2 The Court will deal first with the appeal of the accused John O'Leary.

3 The first ground of his appeal is that "the learned trial Judge erred in law or alternatively in the exercise of his judicial discretion in failing to grant separate trials herein".

4 The main argument advanced in support of this ground of appeal is that the accused Dominic Burke made a number of confessions which implicated the accused John O'Leary. It is correctly submitted that Dominic Burke's statements are not evidence against John O'Leary and it is further submitted that it would be impossible for the jury to have excluded such statements of Dominic Burke from their minds when considering the admissible evidence against John O'Leary.

5 It is well settled law that the fact that one or both of two accused make statements incriminating the other accused is not of itself a reason why separate trials must be ordered. The People .v. Murtagh (1966) I.R. 361:Attorney General .v. Joyce and Walsh (1929) I.R. 526:The People .v. Carney (1955) I.R.324. It was therefore clearly within the learned trial Judge's discretion to refuse the application for separate trials as in fact he did and this Court sees nothing wrong in his exercise of his discretion in so refusing. However, this Court is of the view that it should also consider whether in fact the refusal of separate trials has operated in such a way as might have given rise to a miscarriage of justice as the trial actually ran. There was ample evidence admitted at the trial to justify the verdict of the jury against John O'Leary. The learned trial Judge gave a very clear explanation and emphatic warning to the jury to the effect that the statements of each accused were evidence only against himself and were not in any way evidence against the other accused. This Court is accordingly satisfied that this ground of appeal fails.

6 The second ground of appeal is:-

"The learned trial Judge erred in law in failing to formulate or leave to the jury on the trial within a trial herein separate questions in respect of each and all of the issues of fact raised by the accused."

7 This ground of appeal raises questions as to how the trial within the trial regarding the admissibility of the statements made by John O'Leary should have been conducted. The Court was referred to the decisions of the Supreme Court in the People .v. Lynch (1982) I.R. 86 and a Judgment as yet unreported of the Court of Criminal Appeal delivered on the 6th June, 1985 in the People .v. Conroy.

8 John O'Leary alleged that he was promised that he would be charged with a lesser offence and would be given bail if he made the statements which are the subject of this ground of appeal. If these allegations were not proved to be untrue then the statements would be inadmissible in evidence as having been obtained by an inducement. John O'Leary also made a number of subsidiary allegations to the effect that he was untruly told that the Gardaí had found his fingerprints at the scene of the crime: that they had a witness who knew him for some eleven years and could identify him as having been at the scene of the crime on the day of the crime and further that he was refused an identification parade and was told that the Gardaí had got convictions on less evidence than they had against him.

9 The learned trial Judge left appropriate questions to the jury on the issue as to whether John O'Leary was promised bail and promised that he would be charged with a lesser offence than murder and the jury brought in a verdict for the prosecution on these issues. It is submitted on behalf of John O'Leary...