DPP v O'Leary
| Jurisdiction | Ireland |
| Judge | McCarthy J. |
| Judgment Date | 29 July 1988 |
| Neutral Citation | 1988 WJSC-CCA 2055 |
| Docket Number | Record Number 137/87 |
| Court | Court of Criminal Appeal |
| Date | 29 July 1988 |
1988 WJSC-CCA 2055
COURT OF CRIMINAL APPEAL
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 believing that evidence of an offence under the Act of 1939 would be found in the premises occupied by the appellant - Held that the Special Criminal Court had been entitled to hold that the posters were incriminating documents within the meaning of s. 2 of the Act of 1939 - Held that the appellant had failed to displace the prima facie evidence furnished by his possession of such documents - Held that the court of trial should not have condemned acts of the appellant which constituted an offence with which he had not been charged and that, accordingly, the sentence imposed in relation to the first count should be reduced to four years imprisonment - Offences Against the State Act, 1939, ss. 2, 12, 21, 24, 29 - Offences Against the State (Amendment) Act, 1972, s. 3 - Criminal Law Act, 1976, ss. 3, 5 - (1987/137 - C.C.A. - 29/7/88) 3 Frewen 163
|The People v. 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
Judgment of the Court delivered the 29th day of July 1988 by McCarthy J.
The Applicant was convicted in the Special Criminal Court on the 19th November 1987 on an indictment containing two charges, membership of an unlawful organization, contrary to section 21 of the Offences against the State Act 1939, as amended by section 2 of the Criminal Law Act 1976and possession of incriminating documents contrary to section 12 of the Offences against the State Act 1939, both offences alleged to have taken place on the 18th April 1987. He was sentenced to 5 years imprisonment on the first count and 3 months imprisonment on the second.
The evidence upon which he was convicted may be summarized as follows:-
(a) Chief Superintendent McKeon, Chief Superintendent in charge of the Garda Division of Cork East Riding who swore as to his belief that on the 18th April 1987 the Applicant was a member of an unlawful organization known as the I.R.A., Irish Republican Army, or Oglaigh na hEireann. This was...
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