DPP v O'Loughlin

 
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Court of Criminal Appeal

[C.C.A. No. 18 of 1978]
The People v. O'Loughlin
The People (at the Suit of The Director of Public Prosecutions)
and
John O'Loughlin

Cases mentioned in this report:—

1 Lansdown v. LansdownENR (1730) Mos. 364.

2 R. v. AdamsENR (1829) 3 C. & P. 600.

3 R. v. SchofieldUNK (1917) 12 Cr. App. R. 191.

4 Dunne v. ClintonIR [1930] I.R. 366.

5 R. v. BernhardELR [1938] 2 K.B. 264.

6 The People (Attorney General) v. GreyIR [1944] I.R. 326.

7 R. v. PattersonELR [1962] 2 Q.B. 429.

8 The People (Attorney General) v. O'BrienIR [1965] I.R. 142.

9 Cambridgeshire C.C. v. RustELR [1972] 2 Q.B. 426.

10 The People v. MaddenIR [1977] I.R. 336.

11 The People (D.P.P.) v. Shaw—Interlocutory ruling (3/2/78) of Costello J.

Criminal law - Evidence - Admissibility - Statement of accused - Detention of suspect - Interrogation continued after suspect should have been charged - Infringement of constitutional right to liberty - Larceny - Bona fide claim of right - Larceny Act, 1916 (6 & 7 Geo. 5, c. 50), s. 1 - Constitution of Ireland, 1937, Article 40.

Cur. adv. vult.

The judgment of the Court of Criminal Appeal was delivered by O'Higgins C.J.

O'Higgins C.J

The applicant was charged on an indictment, containing two counts, before His Honour Judge Sheridan and a jury in the Circuit Criminal Court at Waterford. In the first count he was charged with the larceny of a muck spreader which was the property of Michael Cummins. In the second count he was charged with receiving the said spreader. The trial judge gave a direction on the receiving charge and on the 25th February, 1978, the applicant was convicted on the count of larceny. On the applicant undertaking to pay the price of the muck spreader and entering into the usual undertakings, a suspended sentence of two years imprisonment was imposed. The applicant now applies for leave to appeal against his conviction.

The case against the applicant was as follows. The owner of the muck spreader, Cummins, swore that he found it in July, 1977, which was some 14 months after this machine and a tractor of his had disappeared. He said he found it on the applicant's farm. The matter having been reported to the Gardaí, members of the force went out to the applicant's house. When confronted by the Gardaí with the information given by Cummins, the applicant first made a verbal statement to the effect that three months previously he had bought the muck spreader from a dealer outside Inistioge for £80, and that he had not got a receipt. This verbal statement was made on the morning of the 19th July, 1977, in the Garda station at Carrick-on-Suir. Later on the same day, at about 10 p.m. in the Garda station at Clonmel, the applicant made a written statement in which he admitted taking the tractor and spreader from Cummins's farmyard in May, 1976. He said that he had abandoned the tractor on the side of a road but that he kept the spreader. In this statement he offered no excuse for what he had done.

The applicant gave evidence at the close of the prosecution's case. In the course of this evidence his counsel sought to ask questions which were designed to establish a defence that the applicant, when he took the spreader, believed that he was entitled to do so because Cummins owed him money which he had refused to pay. After legal argument the trial judge refused to permit this evidence to be given.

Prior to the introduction of the two statements in evidence, objection to their admissibility was taken by counsel for the applicant. Evidence adduced before the trial judge then established that these statements were made under the following circumstances. On the morning of the 19th July, 1977, Sergeant O'Shea, armed with a search warrant, went to the applicant's house. He was accompanied by Inspector Hayes, Garda Byrne and Detective-Garda Flanagan. He there saw the spreader. The applicant was interviewed and later accompanied Sergeant O'Shea to the Garda station at Carrick-on-Suir. At the Garda station, having been cautioned by Sergeant O'Shea, the applicant made the verbal statement at about 9.30 a.m. The applicant remained in the Garda station while the Gardaí checked his statement; this involved telephoning the Gardaí at Thomastown to request that they make investigations at Inistioge. At about 2 p.m. Detective-Garda Flanagan informed the applicant that his...

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