DPP v McGowan


1977 WJSC-CCA 508A


13 & 14/1976

Delivered by Mr. Justice Griffin on the 31st January, 1977,


Each of the above-named accused has been convicted in the Special Criminal Court on two counts. On the first count they were convicted of having on the 3rd of October 1975 at Monaleen Road, Limerick falsely imprisoned Dr. Tiede Herrema by unlawfully detaining him against his will. They were further convicted of the unlawful possession of firearms on the same occasion. The only evidence against them was contained in their respective statements (written and verbal) and in sketches of the scene of the "kidnapping" of Dr. Herrema, made by each of them to members of the Garda Siochana The appeals are brought upon the ground that these statements ought not to have been admitted In evidence or acted upon by the Court when the Court ruled that the statements were in fact admissible Three grounds of appeal only have been argued.


The first ground argued was that, in the case of each of the accused, the trial was unsatisfactory in that when the Special Criminal Court had heard the evidence tendered on the issue of the admissibility of the aforementioned statements, and had decided that the statements were admissible, the Court did not proceed to re-hear the same evidence. It was submitted that the Court thereby failed to comply with section 41(4) of the Offences Against the State Act 1939, which provides that the practice and procedure applicable to the trial of a person on indictment in the Central Criminal Court shall "so far as practicable" apply to the trial of a person by the Special Criminal Court. It was contended that the Special Criminal Court should have closely followed the practice of the Central Criminal Court in accordance with which, after the trial judge has decided upon the admissibility of a contested statement, evidence is tendered in the presence of the jury as to the making of the statement, and the circumstances in which it was made, so as to enable the jury to decide the weight to be attached to the statement It was said that, if this course had been followed in the Special Criminal Court, counsel for the accused could have cross-examined the Garda Siochana witnesses on the accuracy of the matters stated therein, and that this in turn might have a considerable bearing on the weight to be attached by the Court to the statements of each of the accused.


It is clear from the transcript of the proceedings in the Special Criminal Court that the usual procedure was followed whereby the admissibility of statements was treated as a distinct issue and as the subject matter of what has been described as "a trial within a trial"ò The evidence given on that issue occupied the afternoon of the fourth day of the trial, the entire of the fifth, sixth, and seventh days, and the morning of the 8th day, and each of the Garda witnesses was intensively and extensively cross-examined. The evidence given on this issue was also the evidence by which the evidential value of the statements would be determined by the Court, When the issue of admissibility had been decided by the Court, counsel for the accused was aware of all that evidence. At that stage, the Court enquired of Mr. Boyd, counsel for the accused, whether he required the evidence which had already been given on the issue of admissibility to be repeated and Mr. Boyd stated that, whilst he agreed that this would be ludicrous, he could not consent to any departure from the procedure applicable in the case of trial by a judge and jury. On the suggestion of the Court, prosecuting counsel adopted the course of recalling each witness who had previously given evidence in regard to the taking of the statements and each of these witnesses in turn then re-affirmed that the evidence already given by him was true and correct.


The statements which had been reduced to writing were proved and handed into Court by the witnesses to whom they had been made, as wore the sketches made, by each of the accused. Mr. Boyd was given an opportunity to cross-examine each of these witnesses, but he did not in fact cross-examine any of them.


In the opinion of this Court, the requirements of section of the 0ffences Against the State Act, 1939, in relation to the practice and procedure to be adopted in the Special Criminal Court were sufficiently complied with when the Garda Siochana witnesses who had already given evidence on the issue of admissibility were recalled and formally re-affirmed the truth of the evidence which they had already given, without repeating that evidence, and when counsel for the appellants was given the opportunity of cross-examining the witnesses in relation to the evidence which they had already given.


If it was sought to challenge the accuracy or truth of any of the matters contained in these statements, the opportunity to do so had been provided to the accused....

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