DPP v McNally

 
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2003 WJSC-CCA 4175

THE COURT OF CRIMINAL APPEAL

O'Flaherty J.

Barr J.

Lavan J.

No. 104 of/1989
DPP v. MCNALLY
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
MARTIN McNALLY
Applicant
O'FLAHERTY J.
1

In this case the applicant, who applies for leave to appeal against sentence only, was convicted before His Honour Judge Buchanan and a jury, so far as is relevant to this appeal, of the offence of possession of firearms, in such circumstances as to give rise to a reasonable inference that he did not have them in his possession for a lawful purpose.

2

Mr. Murphy makes three points. Two turn on what the learned judge said in sentencing. The judge said he must take into account the serious allegations made against Detective Garda Costello in the course of the trial when it was alleged that he manufactured a verbal admission in giving evidence contrary to the truth of that. The judge also adverted to the fact that while a notice of alibi was served in the case it was not proceeded with at the trial.

3

The Court is not certain, and would doubt, that Judge Buchanan took into account these matters in the sense of imposing an additional sentence on the accused. It was probably said more in a spirit of showing the accused's lack of remorse up to the trial.

4

However, by saying what he did there remains something equivocal in the case and this Court would wish to resolve that by removing any doubt and by stating now that the conduct of a defence should never attract an additional penalty. An accused must feel free to run the defence and his counsel must so conduct it on instructions as to put the prosecution on full proof and if that ultimately leads to a conviction it should not have the effect of attracting any additional penalty.

5

The counsel's third point was that the worst possible construction was put on the applicant's role in this matter. He was found in possession of some sawn-off shotguns. It cannot be seriously disputed that they were intended for use in an armed robbery. The Court must express its abhorrence and it would be failing in its duty to law-abiding citizens if it did otherwise. The use of any firearms, but in particular the use of sawn-off shotguns, which as was said by the garda expert in the case can have a devastating effect must be condemned...

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