DPP v Campbell

 
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1983 WJSC-CCA 201

COURT OF CRIMINAL APPEAL

120/81
PEOPLE (DPP) v. CAMPBELL
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
ROBERT JOSEPH CAMPELL AND MICHAEL JAMES RYAN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
MICHAEL ANTHONY McKEE, ANTHONY SLOAN, PAUL PATRICK MAGEE AND ANGELO FUSCO

Subject Headings:

CRIMINAL LAW: indictment

EVIDENCE: firearms

EVIDENCE: foreign law

1

JUDGMENT delivered the 7th day of February 1983 by Hederman J.

2

Each of the applicants has applied to this Court for leave to appeal from his convictions on a number of counts by the Special Criminal Court. The first and second named applicants were convicted by the Court on the 23rd December, 1981, on a number of counts arising out of certain incidents alleged to have taken place in a prison at Crumlin Road, Belfast, Northern Ireland and outside the prison on the 10th June, 1981. The third, fourth, fifth and sixth-named applicants were also convicted by the Court on the 25th February, 1982 on counts arising out of those incidents.

3

Before hearing submissions in respect of these applications, the Court indicated that it proposed to reserve its judgment in respect of the applications of the first and second-named applicants until after the conclusion of submissions in respect of the applications of the third, fourth, fifth and sixth-named applicants. At the conclusion of the submissions on behalf of the third, fourth, fifth and sixth-named applicants, the Court announced that it would deliver its Judgment in respect of all the applications at a later date.

4

The counts with which each of the applicants was charged in the indictments related to the escape of a number of persons, some of them armed, from the prison at Crumlin Road on the 10th June, 1981, and an exchange of gun-fire with members of the Royal Ulster Constabulary which took place outside the prison immediately after the escape.

5

Each of the applicants was arrested by the Gardai at various places in the State between the 22nd September, 1981, and the 18th January, 1982 and, detained in custody in purported exercise of the powers conferred by s. 30 of the Offences Against the State Act 1939. The first-named applicant was charged before the Special Criminal Court on the 23rd September, 1981, with having escaped from lawful custody in Northern Ireland on the 10th June, 1981, contrary to section 3 of the Criminal Law (jurisdiction) Act, 1976(hereinafter referred to as "the Act"). Five further charges were preferred against him on the 30th November, 1981 of attempted murder, shooting with intent to prevent lawful apprehension, production and use of fire-arms in the course of an escape and possession of fire-arms with intent to endanger life all contrary to s. 2 of the Act of 1976. The second-named applicant was charged before that Court on the 10th October, 1981 and 30th November, 1981 with similar offences. The third-named applicant was charged on the 7th January, 1982 before that Court with similar offences with the exception of attempted murder; and similar charges, again with the exception of attempted murder, were preferred against the fourth, fifth and sixth-named applicants before that Court on the 7th January, 1982, the 4th January, 1982, the 20th January, 1980 the 9th December, 1981 and 13th January, 1982 respectively.

6

None of the offences with which the applicants were charged was a scheduled offence within the meaning of the Offences Against the State Act, 1939. The appropriate certificates under s. 47 (2) of that Act giving the Special Criminal Court jurisdiction to try the charges were issued by the respondent or, in one case, a professional officer of his department to whom he had delegated his functions in the case of the first-named applicant on the 23rd September, 1981 and the 28th October, 1982, in the case of the second-named applicant on the 10th and 28th October, 1981,in the case of the third-named applicant on the 6th January, 1982, in the case of the fourth-named applicant on the 4th January, 1982, in the case of the fifth-named applicant on the 19th January, 1982 and in the case of the sixth-named applicant on the 3rd December, 1981 and 6th January, 1982.

7

As each of the charges was in respect of offences alleged to have been committed under the Act of 1976, it is necessary to refer to the provisions of the Act.

8

Section 2 (l) of the Act provides that:-

"Where a person does in Northern Ireland an act that if done in the State, would constitute an offence specified in the Schedule, he shall be guilty of an offence and he shall be liable on conviction on indictment to the penalty to which he would have bean liable if he had done the act in the State".

9

The offences set out in the schedule to the Act include the following the heading "fire-arms":-

10

2 "10. Any offence under section 15 of the Fire arms Act, 1925(possessing fire-arm or ammunition with intent to endanger life or cause serious injury to property).

11

11. Any offence under the following provisions of the Firearms Act, 1964

12

(a) Section 26 (possession of fire-arm while taking vehicle without authority );

13

(b) Section 27 (use of fire-arms to resist arrest or aid escape );

14

(c) Section 27 A (possession of fire-arm or ammunition in suspicious circumstances );

15

(d) Section 27 B (carrying fire-arm with criminal intent )."

16

Section 3(1) (a) of the Act provides that:-

"A person who, in Northern Ireland, is charged with or convicted of:-"

(i) An offence under the law of Northern Ireland consisting of acts (whether done in the State or in Northern Ireland) that also constitutes an offence specified in the schedule or an offence under section 2, or

(ii) An offence under the law of Northern Ireland corresponding to this section, and who escapes from any lawful custody in which he is held in Northern Ireland shall be guilty of an offence".

17

Section 14 (l) of the Act provides that:-

"Subject to the provisions of this section, a person charged with an offence under section 2 or 3 may opt to go in custody to Northern Ireland for trial there instead of being tried in the State for the said offence and the person shall be informed of his right to under this section -"

(a) by the District Court, on his first appearance before that Court in connection with the charge, and

(b) by the Court by which he is to be tried for the offence, before entry of his plea on arraignment."

18

Section 20 (2) of the Act provides that where a person is charged with an offence under s. 2 or s. 3, no further proceedings in the matter except such remand or remands in custody or on bail as the court may think necessary shall be taken except by or with the consent of the Attorney General. The Attorney General gave his consent to further proceedings being taken against the first and second-named applicants on the 16 th November, 1981, and against the third, fourth, fourth, fifth and sixth-named applicants on the 18 th January, 1982.

19

The fist and second-named applicants were arraigned on the 10th fifth and sixth-named applicants were arraigned before the Special Criminal Court (differently constituted) on the 16th February 1982. The transcripts disclose that, in the case of each applicant, he was informed by the present of the Court of his rights under section 14 (1) and in each case did not opt to go in custody to Northern Ireland for trial there instead of being tried in this jurisdictions. Each of applicants pleaded not guilty to each of the counts in the indictment.

20

The first and second-named applicants were found guilty of the counts in the indictment charging them with escape from lawful custody, shooting with intent to prevent lawful apprehension, production and use of fire-arms in the course of an escape and possession of fire-arms with intent to endanger life. They were found not guilty of the charge of attempted murder. The third, fourth, fifth and sixth-named applicants were convicted of the counts in the indictment charging them with escape from lawful custody, shooting with intent to prevent lawful apprehension, production and use of fire-arms in the course of an escape and possession of fire-arms with intent to endanger life.

21

Each of the applicants was separately represented at the two trials before the Special Criminal Court and was separately represented on the hearing of the applications by this Court. Separate notices of application for leave to appeal were served in respect of each applicant; but in a number of respects the grounds of appeal were the same in all cases. It is accordingly proposed in this judgment to consider collectively such of the grounds of appeal as are identical in the case of all the applicants.

Production and use of fire-arms "within the prison"
22

It was submitted on behalf of all the applicants other than the first-named applicant that there was either no evidence, or no sufficient evidence, to justify the findings by the Courts of Trial that the applicants produced of used fire-arms

"Within the prison at Crumlin Road, Belfast .... in the course of (their) escape from the custody of John Sample the person in charge of the said Prison"

23

A number of prison officers gave evidence at the two trials as to the sequence of events inside the prison on the afternoon...

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