DPP v Cull

• Jurisdiction: Ireland
• Judge: Gannon.J.
• Judgment Date: 24 November 1980
• Neutral Citation: 1982 WJSC-CCA 254
• Date: 24 November 1980
• Docket Number: 98/1979
• Court: Court of Criminal Appeal

D.P.P. . v. CULL.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

.v.

JAMES CULL

Applicant

1982 WJSC-CCA 254

98/1979

THE COURT OF CRIMINAL APPEAL

1 24th day of Nov. 1980 by Gannon.J.

Gannon.J.

2 On the 16th of Juno, 1978 the applicant was sentenced to eighteen months imprisonment by the Special Criminal Court upon his conviction by that Court of the offence of having been a member on the 12th April, 1978 of an unlawful organisation "styling itself the Irish Republic Army otherwise Oghlaigh na hEireann otherwise the I.R.A." contrary to Section 2l of the Offences Against the State Act 1939. His application for leave to appeal against that conviction and sentence wan refusal by the Special Court. He did not apply within the time prescribed by Order 86 Rule 5 of the Rules of the Superior Courts to this Court for leave to appeal. He did seek successfully to have the order of the Special Criminal Court quashed by certiorari proceedings in the High Court. Upon his, application now pursuant to Order 86 Rule 8 of the Rules of the Superior Courts to enlarge the tine for applying for leave to appeal he has given the course of the certiorari proceedings as the reason for not having applied before now for leave to appeal and he has set out the proposedgrounds of his intended appeal. These correspond in substance with the grounds on which he sought an order of certiorari. It is clear to this Court that from the time of his conviction he had evinced the bona fide intention of having the conviction and sentence set aside. This Court is satisfied accordingly to enlarge the time for his applying for leave to appeal and has allowed him to proceed with such application.

3 The grounds upon which the applicant wishes to rely for the purpose of this application for leave to appeal are as follows:-

4 1. The learned trial Judges misdirected themselves in law in permitting matters to be put to the defendant in cross examination which were at all times within the knowledge of the prosecution, were admissible in evidence against him on the count on which he was tried, but which were not included in the statement of evidence furnished to the accused.

5 2. Further in the alternative the learned trial Judges erred in taking the said matters into account in reaching their decision.

6 3. The learned trial Judges erred in law in failing to dismiss the case at the conclusion of the prosection case.

7 5. The accused was not properly before the Court, alternatively it was not shown that he was properly before the Court, by reason of thedefectiveness of the document alleged to be a directive under Section 30 of the Offences Against the State Act in respect of the accused.

8 6. The learned trial Judges erred in law in receiving the said document in evidence."

9 Grounds 4 and 7 were not relied upon nor argued. As so expressed grounds 1 and 2 appear to be entirely inconsistent with each other. If the matters of evidence of which complaint is made were properly admissible in evidence against the applicant upon the charge on which he was tried the Court was bound to permit such evidence to be given (subject to any adjournment which might have been, but was not, requested) and could not have erred in taking such matters of evidence into account in reaching their decision on the charge Ground 3 which relates to the state of the evidence given to the Court before the applicant gave evidence cannot be supported by the matters for consideration in relation to grounds 1 and 2. Ground 3 can relate only to the arguments advanced to the Court at the conclusion of the prosecution case as appearing from the transcript and these are the subject of ground 4 which was expressly abandoned. In regard to grounds 5 and 6 the document referred to is the authorisation for the detention in custody of the applicant by the Gardai for a second period of twenty four hours from thetime he was first detained on the 13th April, 1978. That document was not in any way a means of procuring the presence of the applicant in the Special Criminal Court for his trial whether it was properly received in evidence or not. Ground 7 which relates only to the sentence imposed was not argued. In the opinion of this Court none of grounds 3 to 7 inclusive affords any basis for interfering with the conviction or sentence against which leave to appeal is sought.

10 Notwithstanding the way in which grounds 1 and 2 are expressed the basis of the application, as put forward by Mr. McDowell with his customary skil is as follows. From the statements of evidence furnished to the applicant before his trial he was led to believe that the only evidence to be offered in support of the charge of membership of an illegal organisation would be a statement of his opinion by a Chief Superintendent of the Garda Siochana pursuant to Section 3 (2) of the Offences Against the State Act 1972. To rebut such evidence it would be necessary that the applicant should himself give evidence. Upon his so doing at the trial questions were put to him in cross examination relating to his conduct on a number of occasions other than the date referred to in the charge. The purport and effect of such questions were to bring to the notice of the Court matters implying or leading to the inference that the applicant was or might havebeen a member of an illegal organisation on one or more of such occasions or on the date the subject of the charge. Mr. McDowell argued that the information upon which such questions were founded must have been known to the Director of Public Prosecutions before statements of the proposed evidence were furnished to the applicant. He submitted that had the applicant been furnished before his trial with a statement of evidence of the matters put to him in cross examination he would have had an opportunity of giving his explanations of his conduct which might have successfully rebutted the implications or inferences drawn by the...