DPP v McGrail

 
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Court of Criminal Appeal

[C.C.A. No. 142 of 1988]
The People (Director of Public Prosecutions) v. McGrail
The People (at the suit of The Director of Public Prosecutions)
and
John McGrail

Cases mentioned in this report:—

Attorney General v. CampbellDLTR (1928) 62 I.L.T.R. 30; (1928) 1 Frewen 1.

R. v. Britzman, R. v. HallWLRUNK [1983] 1 W.L.R. 350; [1983] 1 All E.R. 369; (1983) 76 Cr. App. Rep. 134.

R. v. FlynnELRWLRUNKUNK [1963] 1 Q.B. 729; [1961] 3 W.L.R. 907; [1961] 3 All E.R. 58; (1961) 45 Cr. App. R. 268.

R. v. Tanner (1977) 66 Cr. App. Rep. 56.

Selvey v. Director of Public ProsecutionsELRWLRUNK [1970] A.C. 304; [1968] 2 W.L.R. 1494; [1968] 2 All E.R. 497; 52 Cr. App. Rep. 443.

Criminal law - Evidence - Cross-examination of accused - Incriminatory statements of accused tendered in evidence by prosecution - Denial by accused that statements had been made - Allegation put to prosecution witnesses that incriminatory statements had been fabricated - Whether imputations had been made on character of prosecution witnesses - Whether prosecution should be permitted to cross-examine accused as to previous convictions - Whether court has discretion to refuse permission to cross-examine as to previous convictions - Right to fair procedures - Criminal Justice (Evidence) Act, 1924 (No. 37), s. 1 (f) (ii).

Cur. adv. vult.

In accordance with the provisions of the Criminal Justice Act, 1924, the judgment of the Court of Criminal Appeal was delivered by one of the members of the court.

Hederman J

The applicant was convicted in the Circuit Court on three counts contrary to the Firearms Act, 1964, as amended. The counts on which he was convicted were possession of firearms without a licence, possession in such circumstances as to give rise to a reasonable inference that he had not got them in his possession for a lawful purpose, and possession of firearms with intent to endanger life. The prosecution alleged that all the offences occurred on the 23rd March, 1988. The applicant applied to this court for leave to appeal on a number of grounds, but the court indicated to counsel for the prosecution that it required to hear submissions from him, in reply to the submissions made by counsel on behalf of the applicant, on two grounds of appeal only. They were ground no. 10, that the learned trial judge erred in law and on the facts in permitting evidence to be given of the applicant's previous convictions, and ground no. 11, that the trial was in all the circumstances most unsatisfactory.

Summary of the evidence for the prosecution

The following is a summary of evidence given to the Circuit Court by witnesses for the prosecution. John Meers, a son of the owner of premises at 146 Tritonville Road in Dublin City, on the 20th January, 1988, let a downstairs front bed-sitting room to two young men of whom he asked no questions. He did not know their names or anything about them; nor did he give them a rent book. The rent was agreed at £35 per week and was to be left in the flat every Wednesday. He took a deposit of £70 but did not give a receipt. Mr. Meers said that he did not see the tenants very often and that the flat looked as if it had not been lived in. Before the flat was let to these two young men, it had been cleaned on that morning by a Mrs. Channing, who had earlier on the same day shown the flat to these men.

Miss Kim Woods gave evidence that in March, 1988, she was the owner of a motor-car registration no. LZW 288. She was a hairdresser. The accused from time to time got his hair done in the hairdressing salon in which she then worked. From time to time he got a loan of her car to help her get various repairs done to that car. On the 23rd March, 1988, at about 12 noon, the applicant collected her car at the hairdressing salon to get a puncture repaired. When the car had not been returned by 5.30 p.m., she went home and telephoned the applicant's mother to enquire about her car. On the 18th April she identified her car and the keys of her car to Detective Sergeant Donnellan.

Detective Garda Noel Clarke was on duty with Detective Garda Loughlin in Serpentine Avenue, Sandymount. He saw a red Toyota Corolla car, registration no. LZW 288, crossing the railway tracks travelling along Serpentine Avenue from Merrion Road direction. There were three people in the car. He later saw the driver of the car, whom he identified as the applicant, walk into the front garden of 146 Tritonville Road. He passed a message to Detective Garda Mitchell by way of walkie-talkie sometime after 2.30 p.m.

Detective Garda Mitchell was on duty on that day in the vicinity of Tritonville Road at about 2.50 p.m.; with him were Detective Sergeant Ryan, Detective Garda O'Driscoll and Detective Garda Burke. They went to the front door of 146 Tritonville Road. Detective Garda Ryan had a search warrant under s. 29 of the Offences Against the State Act, 1939, to search the ground floor flat of 146 Tritonville Road. The door was slightly open. The door into the right hand garden flat was opened from within by the applicant. When the applicant saw the gardaí he ran back to the rear of the flat and tried to open a window. He did not make it as far as the window. He was attempting to climb by a table to get at the window when the witness, assisted by Detective Gardaí O'Driscoll and Burke, prevented him from getting any further. As he ran to the window he dropped a set of keys, later identified as the keys to the flat. Before going into the flat Detective Sergeant Ryan announced to the applicant that they were gardaí and that he, Detective Sergeant Ryan, had a search warrant to search the flat.

The applicant when arrested was lying on the floor in the flat. Detective Sergeant Mitchell searched the applicant and took possession of the keys of the Toyota Corolla motor car. Immediately after the arrest and while the accused was still on the floor Detective Sergeant Ryan asked the applicant: "What is your name?", and he replied: "John McGrail". Detective Sergeant Ryan then asked:"Are you armed?", and the applicant replied: "No". Detective Sergeant Ryan further asked: "Are there guns here?", and the applicant replied: "Up there",pointing up over the window. At that stage the witness climbed up with the assistance of a table and chair to the top of the window and removed the plastic bag with what appeared to be a gun concealed inside. Detective Sergeant Ryan cautioned the applicant. The witness pulled back the top of the plastic bag and there appeared to be a stock of a gun protruding from the black plastic bag referred to. The witness showed it to the applicant and asked him what this was, and he replied: "You know fucking well what it is".

The witness then opened a second black refuse back and there appeared to be a gun wrapped up in what appeared to be a balaclava. The witness asked the applicant: "What is this?", and the applicant replied: "I think that is the magnum". There was a third gun in the bottom of the bag. Later the witness heard Detective Garda O'Driscoll ask the applicant what else was in the place, and the applicant replied: "There is some more stuff up there", and pointed over the window immediately inside the...

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