DPP v O'Leary

 
FREE EXCERPT

1988 WJSC-CCA 2055

COURT OF CRIMINAL APPEAL

McCarthy J.

Carroll J.

Murphy J.

Record Number 137/87
DPP v. O'LEARY
THE PEOPLE (at the Suit of the Director of Public Prosecutions)
- v -
DONAL O'LEARY

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2

OFFENCES AGAINST THE STATE ACT 1939 S12

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3(2)

OFFENCES AGAINST THE STATE ACT 1939 S24

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

CRIMINAL LAW ACT 1976 S5

CONSTITUTION ART 40.5

FIREARMS ACT 1925 S24

AG, PEOPLE V O'BRIEN 1965 IR 142

OFFENCES AGAINST THE STATE ACT 1939 S2

CRIMINAL LAW ACT 1976 S3

Synopsis:

CRIMINAL LAW

Sentence

Assessment - Factors - Relevance - Offence not charged - Accused charged with having unlawful possession of incriminating document - Strong condemnation by court of trial of other unlawful conduct of accused involving use of document but not charged in indictment - ~See~ Criminal Law, unlawful organisation - (1987/137 - Supreme Court - 29/7/88) - 3 Frewen 163

|The People v. O'Leary|

CRIMINAL LAW

Unlawful organisation

Membership - Incriminating document - Possession - Proof - Prima facie evidence - Sentence - Extraneous factors - On 19/11/87 the appellant was convicted in the Special Criminal Court on a count which charged him with being a member of an unlawful organisation contrary to s. 21 of the Act of 1939 and on a count which charged him with possessing incriminating documents contrary to s. 12 of that Act - He was sentenced to five years imprisonment on the first count and to three months imprisonment on the second count - At his trial the appellant swore that he was not a member of such organisation and that he was, and had been for many years a member of a lawful political party, namely, the Sinn Fein party - The evidence adduced by the prosecution at the trial included the sworn evidence of a chief superintendent of the Garda Siochana that it was his belief that on 18/4/87 the appellant was a member of the unlawful organisation - Section 3, sub-s. 2, of the Act of 1972 states that, where such a superintendent gives such evidence at the trial of an accused for an offence under s. 21 of the Act of 1939, the statement of the superintendent shall be evidence that the accused was such a member - Premises occupied by the appellant had been searched by the Gardai pursuant to a search warrant which had been issued by a chief superintendent pursuant to s. 29 of the Act of 1939, and which authorised the seizure of property found on the premises - The Gardai found on the appellant's premises, and removed, thirty-seven copies of a poster which (a) referred to the unlawful organisation, (b) depicted a man wearing a para-military uniform and brandishing a rifle and (c) stated that the organisation "called the shots" - Section 24 of the Act of 1939 states that, at the trial of a person charged with being a member of an unlawful organisation, proof to the satisfaction of the court that an "incriminating document" relating to the organisation was found in premises occupied by that person "shall, without more, be evidence until the contrary is proved that such person was a member of the said organisation at the time alleged in the said charge" - In giving its decision, the Special Criminal Court stated that it accepted the evidence of a witness who stated that the appellant had distributed copies of the poster to young people for the purpose of recruiting them for membership of the unlawful organisation; the court expressed its strong condemnation of that conduct, which would appear to amount to an offence contrary to s. 3 of the Act of 1976 - The appellant appealed against his convictions - Held, in disallowing the appeal against the convictions, that the warrant issued pursuant to s. 29 of the Act of 1939 was in accordance with that section and was unobjectionable - Held that there was no basis for challenging the fact, stated in the warrant and affirmed by the officer at the trial, that he had been satisfied, when issuing the warrant, that there was reasonable ground for...

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