DPP v McCann

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 11 March 1998
• Neutral Citation: 1998 WJSC-CCA 5714
• Docket Number: (134/96),[C.C.A. No. 134 of 1996]
• Court: Court of Criminal Appeal
• Date: 11 March 1998

DPP v. McCANN

AN CH ÚIRT ACHOMHAIRC CHOIRI ÚIL

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-V-

FRANCIS McCANN

Applicant

1998 WJSC-CCA 5714

O'Flaherty J.,

O'Donovan J.,

O'Higgins J.,

(134/96)

THE COURT OF CRIMINAL APPEAL

Synopsis

- [1998] 4 IR 397

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S30

EXPLOSIVE SUBSTANCES ACT 1883 S2

CONSTITUTION ART 40.6

MICHIGAN V CLIFFORD 464 US 287

CRIMINAL DAMAGE ACT 1991 S13

AG, PEOPLE V O'BRIEN 1965 IR 142

DPP, PEOPLE V SHAW 1982 IR 1

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PEOPLE IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987

PHIPSON ON EVIDENCE 13ED PARA 2–20

R V SIMPSON 1834 1 MOOD 410

R V BOUGHTON 1910 6 CAR 8

DEOKINANAN V R 1969 1 AC 20

1 11th day of March, 1998, by O'Flaherty J.

O'Flaherty J.

2 On the 15th August, 1996, after a trial that lasted forty eight days in the Central Criminal Court (Carney J. presiding) Francis McCann was convicted of the murder of his wife, Esther McCann, and a child whom they had fostered, Jessica McCann, on the 4th September,1992, at 39 Butterfield Avenue, Rathfarnham, Dublin. The victims died in a fire at this address.

3 The trial judge refused leave to appeal and the applicant now appeals to this Court from that refusal.

4 That the dwellinghouse, 39 Butterfield Avenue, was deliberately set on fire in the early hours of 4th September, 1992, is not in doubt. This fact was not contested by the defence at trial, nor on appeal. Neighbours put the commencement of the fire at 1.35 am to 1.40 am. Marie Daly lived across the road from 39 Butterfield Avenue and was awoken by a bang. She got up and went across the road and noticed a fire in the hallway of number 39 and furthermore noticed that the front door seemed to be ajar. The firefighters arrived at the scene at around 1.50 pm and William Raymond, from the fire brigade, saw that the front door was open. So did Peter Mooney, Hugh Barrett and Pascal Heary. The seat of the fire was undoubtedly in the hallway of the house. Eamonn O'Boyle, assistant chief fire officer, saw that there had been a very severe fire in the hallway and he testified that it appeared as if the stairwell had more or less acted as a chimney. Martin McDermott, fire officer, concurred in this opinion.

5 Francis McCann was the licensee of the Cooperage public house at Main Street, Blessington, Co. Wicklow. He was last seen at his public house by his barman, Alex McDonnell, at about 12.50 am - 12.55 am on 4th September. Blessington is about fourteen miles from 39 Butterfield Avenue. He was seen at his house shortly after the fire began and attempted - or appeared to attempt - to enter the house to save those who were inside.

6 Richard Duggan lived directly opposite 39 Butterfield Avenue and his bedroom was in the front of the house. He woke up and described hearing what seemed to be someone starting a car in a hurry, leaving the key turned in the ignition too long and then the car taking off at speed. He said that he thought that this was somewhat unusual, and that then he heard a loud bang and immediately after that the sound of breaking glass. He said he got up and looked out and saw that a ball of flame seemed to be coming from the hall door of the house directly across the road. He said that it seemed first of all like a ball of flame and then it became just some flames.

7 It was the prosecution case that the accused himself contrived to set out a series of false threats to harm him, with arson as a prominent ingredient. On the 13th August, 1992, the accused had called to Rathfarnham garda station and told Garda Sweeney that he had received threatening telephone calls at his dwellinghouse at 39 Butterfield Avenue. His phone was ex-directory, he said. He said that his wife was upset by the calls. On the same date he called to Blessington garda station and told Detective Sergeant Walker and Detective Sergeant Glennon that he had received an anonymous call to the Cooperage two weeks previously in which he was asked was the pub well insured. He said that on the 12th August he had received a similar call to his home from a male caller who impressed on him the importance of insurance. On the 25th August, the accused again called to Blessington Garda Station and told Detective Sergeant Glennon that he had received a call at the Cooperage at 12.15 am on the previous night. He reported that the caller had said: "I know you have been up to the boys", which Mr. McCann said he understood to mean the gardai. He said that the caller went on to say: "You and the fucker across the road are now in for it". Mr. McCann said he took this to mean Tim Grace. It transpired that Tim Grace was also receiving threatening telephone calls. The prosecution case, on this aspect, was that the accused had made these decoy threatening calls so as to involve another publican (which Mr. Grace was) as well as himself.

8 On the 31st August, the accused phoned the Blessington station at 11.05 pm and requested Garda Martin Roche to come down to the Cooperage. When he got there Mr. McCann took him out to the yard at the rear of the premises and pointed to a slogan painted on a wall which read: "Burn you bastard".

9 On the 3rd September, Mr. McCann spoke on the phone to Sergeant Glennon and asked him to go up to the public house as he had found something in the telephone book. Mr. McCann showed the sergeant the relevant pages; there was a circle in red biro drawn around the telephone number of the Cooperage and beside it the word "burn" was written, and beside the entry for the West Wicklow Public House (this was Mr. Grace's premises) the word "bastard" was written. Mr. McCann gave an account of a strange man visiting the bar earlier who had asked to use the telephone and had consulted the telephone directory.

10 On the morning of 4th September Mr. McDonnell, the barman at the Cooperage, received a telephone call from a male caller asking had Mr. McCann received any bad news. He testified that the voice was obviously disguised with a forced northern accent and was rather hoarse.

11 Mr. Grace had also received a card which had been posted in Naas, Co. Kildare, on the 30th August, although Mr. Grace did not discover it until the 23rd September. It contained the message: "Blood warning. West on way out with a bang. Loser."

12 On the 18th September, Detective Garda Brendan Gallagher visited the accused at the home of certain neighbours who had accommodated him after the fire. He was shown a Mass card which was addressed to the Cooperage, bore a Dublin postmark dated 16th September and had words cut from a newspaper stuck onto it which read: "Ha Ha Burned."

13 It was the State's case that the motive for the murder was connected with certain difficulties surrounding the adoption of the baby Jessica. In short, the Adoption Board officers had formed the opinion that since Mr. McCann was alleged to have fathered a child with a young girl (something that he denied) the adoption would not go through. This decision was reached in July, 1992. His wife did not know of the reason why the Adoption Board was creating difficulties and, therefore, his solution was to set the house on fire, murdering his wife and the baby Jessica.

14 On the 5th September, 1992, the accused made an exculpatory statement to the garda in which he claimed that he left the Cooperage at 1.20 am - 1.30 am on the date in question and drove home. It was when he arrived home that he saw that the house was on fire.

15 Detective Sergeant Quinn of the garda ballistics section went to the premises at 10.45 am on 4th September and carried out examinations there on that day and on the two subsequent days. He found a gas cylinder of the camper gas type in the house and, in addition, a blow torch with a cylinder attached to it and another cylinder lying beside it on a hall table. These latter items had been removed to the garden by the fire brigade officers.

16 In due course, Sergeant Quinn engaged in a number of experiments and came up with the theory that a blow torch trained on the canister would cause it to explode. That, however, would not have been sufficient to cause the conflagration that in fact took place; and accelerant would also have been required.

17 As a result of seeing an experiment conducted on the 4th November, 1992, at the Civil Defence School, Phoenix Park, Dublin, carried out by Sergeant Quinn and others, Inspector (afterwards Superintendent) Anthony Sourke formed the opinion that an explosion had taken place in connection with the fire; having got the information from the Adoption Board why the adoption of Jessica was not going ahead, he was satisfied as to a possible motive of the accused for the murders and there were other factors concerning the conduct of the accused after the fire that firmed up his suspicions, one being a conversation reported to him by Garda Murphy which took place on September 10th, when he was preserving the scene of the fire, and which did not conjure up for the Inspector the picture of a "grieving widower".

18 So he resolved to arrest the accused under s. 30 of the Offences Against The State Act, 1939, on suspicion of having committed an offence under s. 2 of the Explosive Substances Act, 1883. Offences under this Act are scheduled offences for the purposes of the Offences Against the State Act, 1939.

19 He set out, with other members of the gardai, to the Cooperage. He met the accused in the bar portion of the premises and then they went to the upstairs part of the premises, the Inspector leading the way, where the arrest was effected. Inspector Sourke, and the other members of the gardai effecting the arrest, brought the accused to Tallaght Garda Station where they arrived at 2.07 pm. Mr. McCann was questioned about the explosion at 39 Butterfield Avenue but he denied any involvement and refused to answer any questions put to...