DPP v McNALLY

 
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1981 WJSC-CCA 356

COURT OF CRIMINAL APPEAL

President of the High Court

Mr. Justice Henchy

Mr. Justice Banington

Record No. 103 1978
Record No. 104 1978
D.P.P. v. McNALLY.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
BERNARD McNALLY
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
OSGUR BREATHNACH
Finlay P.
1

These are two applications by way of appeal against a refusal of the Trial Court of a certificate of Leave to Appeal against a conviction of each of the Applicants of two offences of larceny of mailbags, the property of John Joseph Cotter, contrary to Section 12 of the Larceny Act of 1916 and stopping a mail-train with intent to rob the mail contrary to the same Section. In respect of these offences the Applicant Bernard McNally was on the 13th of December 1978 sentenced by the Special Criminal Court to 9 years penal servitude on each count and the Applicant Osgur Breathnach was on the same date sentenced by the same court to 12 years penal servitude on each count.

2

Application was made on behalf of each of the Applicants at the conclusion of the trial for a certificate of Leave to Appeal and this was in each case refused. It is against that refusal that the present appeal comes before this Court. The Court has treated the application to this Court for a certificate of Leave to Appeal as the hearing of the appeal in each case.

3

The applications were heard before this Court at the same time. Some of the grounds of appeal being identical in each case and others depending upon the separate evidence adduced against each of the Applicants. The trial of the Applicants and of two other persons with whom this Court is not in this application concerned was a joint trial and was at hearing before the Special Criminal Court for a period of 43 days.

4

These applications were heard by this Court on the 12th, 13th, 14th, 15th, 16th and 19th of May, 1980 and the Court reserved its decision. On the 22nd day of May 1980 the Court ruled each application holding that assuming for the purposes of each application that the primary findings of fact in regard to the arrest, detention and treatment of each of the Applicants were sustainable on the evidence adduced before the trial court that this court was satisfied that the statements made by the Applicants were not legally admissible. Since those statements were the only evidence adduced in each case which established the involvement of the Applicants in the crime committed the Court accordingly granted to each Applicant leave to appeal, treated that as the hearing of the appeal and set aside each conviction and sentence. The Court then announced that it would give its reasons at a later date.

5

The facts established without contradiction before the Trial Court indicated that on the early morning of 31st of March 1976 a number of armed persons stopped a train carrying mail at Palmerstown, Co. Dublin; boarded it and under threat of shooting the staff and employees on the train stole from it a number of mailbags. In general, the evidence indicated an extremely carefully prepared crime in which a number of persons were involved and which was carried out as a result of careful planning. Against the adequacy of this proof of the commission of the crimes alleged in the indictment against each of the Applicants there was no ground of appeal. The grounds of the appeal were confined in each case case to questions of the admissibility or adequacy of the proof of the involvement of the Applicants in the crime which had undoubtedly been committed. On the grounds of appeal originally submitted each Applicant also appealed against the severity of the sentence imposed upon him but these grounds were not with the leave of the court proceeded upon.

6

The grounds of appeal which were proceeded upon on behalf of the Applicant Bernard McNally were as follows:-

7

1. The Special Criminal Court erred in law in holding that it had jurisdiction to try the Applicant there having been a previous uncompleted trial which was concluded under circumstances over which the Applicant had no control.

8

2. The Court erred in law in holding that the questioning of the Applicant by members of the Garda Siochána on April the 5th, 6th and 7th, 1976 was warranted by law.

9

3. The trial was unsatisfactory because (a) the prosecution having opened and conducted the State case on the basis that all members of the Garda Siochána who were present in the Bridewell Garda Station during the period when the Applicant was detained there on April the 6th and 7th, 1976 would be called by the Prosecution or made available for the defence for the purpose of giving evidence, failed either to call or make available several identifiable such members the same having been requested by the defence and their evidence being relevant to matters in issue in the trial; (b) by reason of alterations, erasures in and partial destruction of portions of the records of the Bridewell Garda Station namely the allocation book it was not possible for the defence to ascertain and the prosecution did not seek to prove which (if any other members of the Garda Siochaána as yet unindentified may have been present in the Garda Station during the said period and in possession of information relevant to matters in issue in the said trial; (c) the prosecution failed to offer or attempt to offer any explanation for the alterations, erasures in and partial destruction of the said Exhibit 95 and the Court required or requested no such explanation. By reason of the foregoing matters the defence of the Applicant was hindered and prejudiced.

10

4. There was no or no sufficient evidence to support the findings of the Court that the injuries seen on the body of the Applicant and evidence in relation to which was given inter alia by the Applicant, by the wife of the Applicant and four doctors were "self-inflicted" and/or "mutually inflicted" and that such findings were against the evidence and the weight of the evidence and were perverse.

11

5. The Court erred in law in holding that the alleged verbal admissions of the Applicant were voluntary.

12

6. The said finding that the said admissions were voluntary was against the evidence and the weight of the evidence and was perverse.

13

7. That insofar as the Court admitted in evidence the alleged verbal admissions of the Applicant in the exercise of its judicial discretion the Court exercised the same upon wrong principles.

14

8. That the findings of the Court that the alleged verbal admissions of the Applicant were not obtained as a result of oppression were wrong in law and were against the evidence and the weight of the evidence and were perverse.

15

9. That the Court erred in law and in fact in holding that the the Applicant's constitutional rights were not infringed in relation to his requesting access to a Solicitor.

16

1. The trial was unsatisfactory because (a) the prosecution having opened and conducted their case on the basis that all members of the Garda Siochána who were present at the Bridewell Garda Station during the period of the detention of the Applicant between the 5th of April and the 7th of April 1976 would be called by the prosecution or made available for the defence for the purpose of giving evidence failed to call or make available a number of identifiable such members the same having been requested by the defence and being relevant; (b) by reason of alterations in and destruction of portion of the records of the Bridewell Garda Station, i.e. portion of the allocation book Exhibit 95 it was not possible for the defence to ascertain and the prosecution did not seek to prove which (if any) other members of the Garda Siochána as yet unidentified may have been present at the said Garda Station during the said period and in possession of information relevant to matters in issue in the said trial; (c) the prosecution failed to offer or to attempt to offer any explanation for the alterations in and partial destruction of the said Exhibit 95 and the Court required no such explanation. By reason of the foregoing the defence of the Applicant was hindered and prejudiced.

17

2. The Court erred in law in holding that the violation of the Applicant'sconstitutional rights occasioned by his illegal arrest on the 5tn of April 1976 and subsequent detention thereafter was not conscious and deliberate.

18

3. There was no or no sufficient evidence to warrant the Court in so finding.

19

4. The Court erred in law in holding that the conduct of Garda McGauran in failing to take any action on foot of the Applicant's request for a Solicitor was not a conscious and deliberate violation of the Applicant's constitutional rights.

20

5. There was no or no sufficient evidence to warrant the Court so finding.

21

6. There was no or no sufficient evidence to support the finding by the Court that the injuries seen on the Applicant and...

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