DPP v Madden

 
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1975 WJSC-CCA 482

THE COURT OF CRIMINAL APPEAL

5.6.7.8/1976
People (D.P.P.) v. MADDEN & ORS
THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)
v.
BARTHOLOMEW MADDEN, DAVID O'DONNELL, BERNARD LYNCH and CORNELIUS FINBARR DOYLE
1

Judgment of the Court of Criminal Appeal delivered by THE CHIEF JUSTICE on the 16th day of November 1976

2

Each of the four Defendants is charged with the murder of Laurence White on the basis that each was an accessory to his murder on the 10th June 1975 Having been convicted following a long trial before the Special Criminal Court each has appealed against conviction to this Court. It is not necessary to deal with separate grounds of appeal as these will be considered in so far as appears proper when the case of each Defendant is considered later in this Judgment

3

It is appropriate at the commencement of this Judgment to set out what in the opinion of this Court is the function of this Court in hearing an appeal from the Special Criminal Court, and also to state what are the legal principles applicable in the circumstances of this case to the crime for which the Defendants stand charged.

4

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Function of the Court of Criminal Appeal
5

A person convicted by the Special Criminal Court has a right of appeal to the Court of Criminal Appeal from conviction and sentence or conviction or sentence upon obtaining from the Special Criminal Court or from the Court of Criminal Appeal leave to appeal. This right of appeal is provided by section 44 of the 1939 Act by which also sections 28 to 30 and sections 32 to 35 of the Courts of Justice Act 1924and sections 5, 6 and 7 of the Courts of Justice Act 1928are applied and have effect in relation to appeals from the Special Court in the like manner as they apply and have effect in relation to appeals under section 31 of the 1924 Act. Section 12 of the Courts (Supplemental Provisions) Act of 1961replaces section 30 of the 1924 Act and it provides that the Court of Criminal Appeal shall be a Superior Court of Record and shall have power to determine any questions necessary to be determined for the purpose of doing justice in the case before it and vests in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment applied by section 48 of the Act, was immediately before the operative date vested in the Court. Unlike the appeals in civil matters from Courts of first instance the appeal to the Court of Criminal Appeal is not described as a re-hearing. It would seem therefore that the Court of Criminal Appeal in exercising its functions as an appellate Court from decisions of the Special Criminal Court should apply the following statements of principle taken, from the judgment of Holmes L.J. delivered in the Court of Appeal in Aberdeen Glenline Steamship Company .v. Mackan re SS "Gairloch" 1899 2 I.R. 1 at page 18:

6

"When a judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite matter of fact, his finding ought not to be reversed by a Court that has not the same opportunity of seeing and hearing the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice. The same rule does not apply, at least in the same degree, where the conclusion is an inference of fact. It often happens, as in the present instance, that the decisive finding is a deduction from facts hardly disputed or easily ascertained. In such a case the appellate tribunal is in as a good position for arriving at a correct conclusion as the Judge appealed "from, and it would be an undue restriction of the functions of the former if it were to hold itself bound by what has been found by the latter. Of course the view of the Judge who tried the case is of the greatest weight, and for my own part I would only depart from it with much hesitation when, as here, we have not been furnished with a report or note of the judgment appealed from."

7

In the appeals now before this Court we have transcripts of the rulings of the Special Criminal Court in the course and at the end of the trial on questions of law and findings of facts in relation to the admissibility of evidence, the sufficiency or cogency of the evidence, and the reasons for the rulings and verdicts given. Subject therefore to the grounds of appeal it would seem to be the function of this Court to consider the conduct of the trial as disclosed in the stenographer's report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the Court of trial can properly be supported by the evidence but otherwise to adopt all findings of fact subject to the admonitions in the passages cited above.

THE Law applicable
8

In the absence of evidence showing that any one of the accused actually took part in the shooting down of Laurence White the case made against each of them is that is he aided and abetted in the killing of Laurence White. The killing of Laurence White is described in the evidence and undoubtedly establishes that it was accomplished in a manner from which the mens rea required for the offence of murder may be inferred in relation to the persons by whom the killing was committed. To sustain a conviction of any one of the accused as an accessory before the fact for aiding and abetting in the commission of this crime the prosecution must prove that the acts of aiding and abetting attributed to the accused were done in the knowledge of the intended commission, and assisted the commission, of the actions carrying the mens rea of the offence committed by the principal, that is to any, an unlawful killing such as is described in section 4(1) of the Criminal Justice Act 1964. It is not contested that the trial Court correctly stated the principles of law in relation to the onus of proof on the part of the prosecution to establish the guilt of a person accused of aiding and abetting the commission of the offence charged, The Court did have regard to the decision of the Court of Criminal Appeal in England in Reg. v. Bainbridge 1960 1 Q.B. 129 in which Lord Parker C.J. quotes with approval the charge to a jury given by the trial Judge as set out in pages 132 and 133 of the report. The Court had regard also to the decision of the Queen's Bench Division in England in the case of National Coal Board .v. Gamble 1959 1 Q.B. 11 and in particular to the statements of principles extracted from the judgment of Devlin J. at page 20 and page 23 of that report. The objection taken on the appeal is not that the trial Court misstated the principles of law but that in the application thereof the Court misdirected itself in relation to the evidence before it. In relation to a charge of, aiding and abetting it is clear from the cited judgments in Bainbridge's case and the Coal Board v. Gamble that motives and desires are irrelevant and evidence merely of common association is insufficient. The kernel of the matter is the establishing of an activity on the part of the accused from which his intentions may be inferred and the effect of which is to assist the principal in the commission of the crime proved to have been committed by the principal, or the commission of a crime of a similar nature known to the accused to be the intention of the principal when assisting him.

Each Case to be tried separately
9

While these four Defendants have been prosecuted together and tried jointly the case against each must be considered separately and apart from the case against each of the others. The State must prove the offence charged against each Defendant on relevant evidence admissible against that Defendant and the Court in considering its verdict must have regard only to such evidence in precisely the same way as if such Defendant were tried separately. Relevant and admissible evidence establishes in relation to all four Defendants certain general facts with regard to the nature of the crime and the manner in which it was committed. Statements, however, which were alleged to have been made by certain of the Defendants and the recitation of the facts therein contained must be treated as being admissible only in the case of the Defendant who was alleged to have made them and in no way explanatory of the conduct or action of any other Defendant.

Facts admissible against all Defendants
10

The following facts appear to be established by evidence admissible against all the Defendants. About midnight on the 10th June 1975 Laurence White a young man was murdered by being machine-gunned to death. He lived with his father Laurence White senior at Orrery Road, Cork. He had been on a visit to his sister and having left a public house at 11.40 p.m. Where he had stopped for a drink, walked up Shandon Street through Cathedral Road onto Wolfe Tone Street Where, at about 11.45 p.m., he parted company with one Edward Hogan who had been with him for most of that day. At about the hour of midnight he met his death, in the circumstances outlined, in Mount Eden Road on his way to his home in Orrery Road. The evidence establishes that his assailant or assailants used a White Cortina car. This car with two men in it was seen before the murder in Mount Eden Road at 9 p.m. and later at 11.45 p.m., obviously indicating that the murderers were awaiting their victim. When Laurence White came into Mount Eden Road one of the occupants of this car...

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