1985 WJSC-CCA 157

Court of Criminal Appeal

Finlay P.

Hederman J.

McWilliam J.

The Director of Public Prosecutions
Sean Mc Keon






Admissibility - Accomplice - Veracity of witness - Assessment by court of trial - Acceptance by appellate court of assessment made by court of trial - (84/1983 - C.C.A. - 12/12/84) - 3 Frewen 2

The People v. McKeon



Witnesses - Sequence - Counsel's right to decide - Different sequence suggested by trial judge - Suggestion adopted by counsel for prosecution - Accused not prejudiced - (84/1983 - C.C.A. - 12/12/84) - 3 Frewen 2

The People v. McKeon



Prejudice - Court of trial - Membership - Three judges - Accused recently acquitted of serious offence at trial in Special Criminal Court - Accused facing trial on similar serious charge before court of three judges - Two of the judges being judges who constituted part of membership of court at prior trial - Necessity that justice be seen to be done - Appeal allowed and conviction set aside - New trial ordered - (84/1983 - C.C.A. - 12/12/84) - 3 Frewen 2

The People v. McKeon

Finlay P.

This is an application by the Applicant for a Certificate of Leave to Appeal against his conviction by the Special Criminal Court on the 23rd of June 1983 of an offence of robbery contrary to Section 23 of, the Larceny Act, 1916 as substituted by Section 5 of the Criminal Law Jurisdiction Act,1976in respect of which he was sentenced to 10 years and of an offence arising out of the same facts of carrying a firearm with intent to commit an indictable offence, namely, robbery in respect of which he was sentenced to seven years.


The Applicant sought an enlargment of time for the application which was late and it was granted at the commencement of the hearing.


The grounds of appeal were five in number and were as follows:-


2 "(1) The Court of trial erred in its discretion in not acceding to the request of Counsel on behalf of the Appellant to disqualify themselves from hearing the case against the Appellant, two members having sat on a prior trial relating to the Appellant.


(2) The Court of trial erred in not granting a separate trial to the Appellant, such application having been made by Counsel on behalf of the Appellant at the outset of the trial.


(3) The Court of trial erred in consistently correcting, amending and advising the State their proofs throughout the course of the trial which consequently prejudiced the Appellant.


(4) The Court of trial did not treat the evidence of Gerard Ryan an alleged accomplice and Mary Ryan the wife of the said Gerard Ryan with the utmost caution having regard to the nature of the State's case against the Appellant and in particular having regard to the involuntary nature of the statement made by the said Gerard Ryan and the said Mary Ryan.


(5) The evidence was by its nature insufficient to enable the Court of trial to find the Appellant guilty of charges one and seven."


Counsel on behalf of the Appellant conceded in the course of his submissions that the grounds upon which a separate trial had been sought did not manifest themselves during the course of the trial and that he could not pursue that ground of appeal.


Counsel, with the permission of the Court, argued the grounds of appeal, numbers 3, 4 and 5 before he argued ground number 1 and the Court will deal with the grounds in the order in which they were argued before it.


The facts on which this submission was made consisted of a number of instances where the Court of trial either requested witnesses to be lead in a particular order or indicated that if evidence which the prosecution sought to tender was to be adduced that notices of additional evidence would have to be served. This Court is satisfied that all but one of these instances related to matters which formed a trial within the trial before the Special Criminal Court and related to facts and circumstances surrounding the admission of certain alleged voluntary statements made by the Applicant all of which were, in fact, ruled as inadmissible by the Special Criminal Court. The instance which did not affect the admissibility of statements was where Gerard Ryan a witness as to certain events which occurred prior to the happening of the robbery was called at the outset of the case and before any evidence of a robbery had been tendered and where the Court of trial suggested that it would be more appropriate that he should be called at a later time. Reliance was placed on the fact that at that time replies to two or three preliminary questions seemed to indicate that Gerard Ryan was not then going to give evidence in accordance with the statement from him contained in the Book of Evidence but that when called at a later time in the trial he did so.


In so far as the interventions of the Court affected the admissibility of statements which they excluded there can be no question at all of these interventions prejudicing the accused or causing, in any way, a mis-trial. The Court rejects the submission that the request by the Court to call witnesses in a certain order, which, notwithstanding the ordinary right of the prosecution to call the witnesses in the order in which leading Counsel should decide. the prosecution accepted and complied with, could be prejudicial to the interests of the accused or create any form of mis-trial. This ground, therefore, also fails.


The evidence of Gerard Ryan and of his wife Mary Ryan in so far as it affected this Applicant constituted evidence of the arrival of this Applicant to the Ryan's residence and farm on the morning of the robbery in company with another man, of his departure shortly prior to the robbery, the farm being relatively close to the scene of the robbery, of his return at a time after the robbery had been completed, of the storing or hiding of a tin box and money identified as having been taken in the course of the robbery by Gerard Ryan at the request and with the concurrence of this Applicant and of certain other matters capable of being associated with the crime.


Gerard Ryan was charged jointly with this Applicant and with another person in respect of the offence of the robbery. His case came on some months prior to the hearing of this trial before the Special Criminal Court he pleaded guilty to certain charges and a suspensory sentence had been imposed on him. He was, therefore, an accomplice, furthermore, in the course of his evidence he stated that after a suspensory sentence had been imposed on him he made the statement on which his evidence in the trial of this Applicant was based and that he made that because he was told by a member of the Garda Siochana that he would have to make it and that if he did not he could be asked to serve the sentence which was imposed on him.


Mary Ryan the wife of Gerard Ryan gave evidence corroborative of many of the details of the evidence given by her husband. Before doing so she protested to...

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