DPP v McGrail

 
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1990 WJSC-CCA 475

THE COURT OF CRIMINAL APPEAL

Hederman J.

Egan J.

Barr J.

142/88
DPP v. MCGRAIL
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
v.
JOHN McGRAIL
Applicant

Citations:

FIREARMS ACT 1964

OFFENCES AGAINST THE STATE ACT 1939 S29

OFFENCE AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 PART V

R V HALL 1983 1 AER 369

AG V CAMPBELL 1 FREWEN 1

R V TANNER 66 CAR 56

CRIMINAL LAW (RAPE) ACT 1981 S3

CRIMINAL JUSTICE (EVIDENCE) ACT 1924

R V BRITZMAN 1983 1 AER 369

Synopsis:

CONSTITUTION

Personal rights

Fair procedures - Criminal charge - Trial - Defence - Nature - Prosecution witnesses - Imputations on characters of witnesses - Prosecution granted leave to adduce evidence of accused's previous convictions - Error of trial judge - (142/88 - C.C.A. - 18/12/89) - [1990] 2 I.R. 38 - 3 FREWEN

|The People v. McGrail|

EVIDENCE

Admissibility

Accused - Previous convictions - Proof - Justification - Defence of accused - Nature - Imputation confined to integrity of witness in respect of proof of offence charged - Such restricted imputation insufficient to allow evidence of accused's convictions - Criminal Justice (Evidence) Act, 1924, s. 1 - Constitution of Ireland, 1937, Articles 38, 40 - (142/88 - C.C.A. - 18/12/89) - [1990] 2 I.R. 38 - 3 FREWEN

|The People v. McGrail|

WORDS AND PHRASES

"Imputations on the character"

Accused - Previous conviction - Proof - Justification - Defence of accused - Nature - Imputation on character of prosecution witness - Imputation confined to integrity in respect of proof of offence charged - (142/88 - C.C.A. - 18/12/89) - [1990] 2 I.R. 38

|The People v. McGrail|

1

JUDGMENT OF THE COURT delivered the 18th December 1989 by HEDERMAN J.

2

The accused was convicted in the Circuit Criminal Court on three counts contrary to the Firearms Act, 1964as 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 fire-arms with intent to endanger life. The prosecution alleged that all the offences occurred on the 23rd March 1988. After conviction and sentence the accused sought leave to appeal on a number of grounds but the Court indicated to counsel for the prosecution that they required to hear submissions from him in reply to the submissions made by counsel on behalf of the appellant on two grounds of appeal only. They were grounds 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
3

John Meers, a son of the owner of the premises 146 Tritonville Road on the 20th January 1988 let a down stairs 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 agred 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 he did not see the tenants very often and 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.

4

Miss Kim Woods gave evidence that on 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 accused 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 hom and phoned the accused'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.

5

Det. Garda Noel Clarke was on duty with Detective Garda Loughlin in Serpentine Avenue, Sandymount. He saw a red Toyota Corella 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 accused 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 fron door of 146 Tritonville Road. Detective Garda Ryan had a search warrant under section 29 of the Offences Against the State Act, 1937 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 accused. When the accused saw the Gardai he went to run back into the flat, he went to the rear of the flat and he 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 Gardai 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 accused that they were Gardai and that he, Detective Garda Ryan had a search warrant to search the flat. The accused, when arrested was lying on the grounds in the flat. The witness Detective Sergeant Garda Mitchell searched the accused and took possession of the keys of the Toyota Corella motor-car. Immediately after the arrest and while the accused was still on the ground Detective Sergeant Ryan asked the accused "What is your name?" and he replied "John McGrail". Detective Sergeant Ryan then asked "are you armed" and the accused replied "No". Detective Sergeant Ryan further asked "as there guns here" and the accused 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 accused. 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 accused and asked him "what this was" and he replied "you know fucking well what it is"

6

The witness then opened a second black refuse bag and there appeared to be a gun wrapped up in what appeared to be a balaclava. The witness asked the accused "what is this" and the accused 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 accused "what else was in the place" and the accused replied "there is some more stuff up there", he pointed over the window immediately inside the door of the flat. Detective Garda Burke climbed up to search the top of the window, he pulled down a sock and a balaclava. As he was handing the sock down a bullet fell from it (counsel for the appellant at this stage objected to evidence of any further statements allegedly made by the accused as being immaterial to the charge, but the learned trial Judge refused his application).

7

The witness then heard Detective Garda O'Driscoll ask the accused "anything else" and the accused replied "there is gear in the press for plating motors" motioning over to the press on the right-hand side of the fire-place. The witness then asked the accused "what do you use this place for" and he replied "for strokes". The witness then asked "is that what the clothes are for" and he replied "Yea". At this stage Sergeant Ryan read over to the accused some notes which he had made after again cautioning him, the accused replied "I was only paying the rent". Detective Sergeant Ryan asked "whose flat is it" and the accused replied "it is my flat". When asked to sign the notes by Detective Sergeant Ryan, he refused to do so. The witness than asked the accused "what were the keys you dropped" and the accused replied "they are mine for the gaff". At this stage witness arrested the accused under section 30 of the Offences Against the State Act, 1937, on suspicion of having committed a scheduled offence under Part V of the Act, that is unlawful possession of firearms at 146 Tritonville Road.

8

At 8.40 p.m. witness in the presence of Detective Garda O'Driscoll at Kevin Street Garda Station read over his notes of the conversations he had with the accused at the time of the arrest. He cautioned the accused and advised him to sign the notes, the accused did not reply nor did he sign the notes. Detective Garda O'Driscoll and witness then signed the notes. Garda Mitchell was then cross-examined by counsel for the appellant and during the course of his cross-examination he was asked a number of specific questions. He was asked "weren't you one of the guards, who held the accused on the ground?. The answer was "Yes". "I put it to you whilst you did that on a number of occasions you hit him on the back with some object, he does not know what? "That is not correct".

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