DPP v Tuite
1983 WJSC-CCA 2336
COURT OF CRIMINAL APPEAL
Words & Phrases: Amended by substitution
CRIMINAL LAW: offence
CRIMINAL LAW: trial; trial
STATUTORY INTERPRETATION: amendment
JUDGMENT delivered on the 2nd day of May 1983 by McCARTHY J.
This is an application for leave to appeal against conviction by the Special Criminal Court of possession of explosive substances with intent, contrary to s. 3 of the Explosive Substances Act, 1883 as inserted by s. 4 of the Criminal Law (Jurisdiction) Act, 1976. The trial before the Special Criminal Court began on the 29th June 1982 and continued until the 13th July 1982, on which date the applicant was found guilty of the charge preferred and was sentenced to ten years imprisonment.
The particulars of Offence set out in count No. 2 of the indictment, as textually corrected, were as follows:-
"Gerard Anthony Tuite, being an Irish Citizen, on a date, unknown, between the 1st day of June 1978 and the 1st day of March, 1979, outside the State, namely at 144 Trafalgar Road, Greenwich, London, England, unlawfully and maliciously had in his possession explosive substances to wit, approximately 1540 grammes of gelignite, a box with one Memo-park timer, two H.P. 7 batteries, one torch bulb, one micro-switch and spring, eleven cartridges of "Frangex" explosive, approximately 340 grammes of "Frangex" explosive, two lengths of safety fuse, seventy six assorted detonators, eleven electronic timer power units, four mechanical timer power units and four modified wrist watches, with intent by means thereof, to endanger life, or cause serious injury to property or to enable any other person so to do."
It is beyond question, and in no way challenged, that the explosive substances described were found by London Metropolitan Police in a flat at 144 Trafalgar Road and that elaborate steps had been taken to conceal these substances and a variety of other articles, including fire-arms, in that flat, so much so that, as was conceded by leading Counsel for the defence at the trial in the Special Criminal Court, the very nature of the articles and the manner of their concealment established the guilty intent of who ever was responsible for them. It was proved in evidence that the applicant was a resident in the flat at least up to some date about the middle of January 1979, that a search had been carried out by the London Metropolitan Police at the end of February 1979, in which search none of the explosive substances set out in the particulars of Offence had been discovered, but that, on a more elaborate search carried out in August 1980, the substances had been found in the circumstances described. It is sufficient for the purpose of this Judgment to quote but one part of the Judgment of the Special Criminal Court, dealing with the facts, in which the Court said:-
"The Court is satisfied beyond all reasonable doubt that on the occasion of this search that the explosive substances the subject of the charge against the accused were present under the floor boards on the occasion of this search and they had been placed there by the accused. It is so satisfied because it is satisfied beyond all reasonable doubt (1) that the accused had access to the flat; (2) traces of nitro glycerine were found on the inside of his brief case which was discovered on the occasion of the first search in February 1979; (3) his finger prints were found on the items already referred to which were found under the floor boards with the explosive substances (these included a copy of International Who's Who, maps of London and Liverpool copy of the Communist Manifesto, a Babington Junior note book and a brown paper bag, on which the finger prints of the applicant were found); (4) a portion of the butt of the shot-gun found on the premises was found subsequently in a car hired by him (which car was involved in an explosion which occurred on the 18th December 1978 near the junction of Shaftesbury Avenue and Piccadilly Circus, London); (5) the documents related to the Morris Marina purchased by him were found with the explosive substances; and (6) a key which opened a Rover car hired by him was also found under the floor boards. The accumulation of these facts in the opinion of the Court admit of no construction other than that the accused placed these items under the floor boards at some date prior to the 26th day of February 1979 and subsequent to the 1st day of June 1978 and that he had possession thereof with intent to cause serious injury to property and finds him guilty of that charge."
Before dealing with the grounds of appeal advanced on behalf of the applicant, it is proper to refer to the judgment of the Court of Criminal Appeal delivered by O'Higgins C.J. in The People v. Madden ( and to the observations made under the heading of "Function of the Court of Criminal Appeal" at p. 339/40, in particular where the Chief Justice says:-
"In the appeals now before this Court, we have transcripts of the rulings of the Special Criminal Court made in the Course, and at the end, of the trial on questions of law and findings of facts in relation to the admissibility of evidence, the sufficiency or cogency of the evidence, and the reasons for the rulings and verdicts given. Therefore, subject to the grounds of appeal, it would seem to be the function of this Court to consider the conduct of the trial as disclosed in the stenographer's report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above."
This Court would add to these observations the view that, subject always to the overriding demands of justice, this Court will not entertain submissions, critical of the Special Criminal Court, where such submissions were not made to that Court at the trial. Since the judgment of this Court in Madden's case, in so far as an appeal concerns a review of findings of fact, the citation from the judgment of Holmes L.J. in the Irish Court of Appeal in S.S. Gairloch (1899) 2 I.R.1 at 18, made by the Chief Justice in Madden's case was renewed by both O'Higgins C.J. and Henchy J. in Northern Bank Finance Corporation Ltd. v. Charlton & Ors. at 178 and 189.
The grounds of appeal, generally, fall into two categories-
1. Challenges to the jurisdiction, of the Special Criminal Court and,
2. Challenges to the adequacy of the evidence.
There are, however, two other matters, both set out in ground No. 6 of the formal statement of grounds of appeal, under the heading of "trial unsatisfactory", with which it is convenient to deal at this stage. The original book of evidence consisted of the statements of forty three witnesses but, in addition, throughout the trial, thirteen notices of additional evidence were served on the defence involving ninety five additional statements. The applicant complains that this rendered the trial unsatisfactory as did a circumstance which may be described as the other side of the coin - the failure of the court of trial to require the prosecution to call and tender the evidence of Miss Patricia Imelda Donovan, "who was one of the witnesses who gave evidence in the proceedings before the Magistrates of England against the appellant, and who was a visitor and occupier of the flat at 144 Trafalgar Road." (quotation from ground No. 6 (d)).
The Criminal Procedure Act, 1967(an Act to establish a new procedure for the preliminary examination of indictable offences etc.) provided by s. 6:-
2 "(1) The prosecutor shall cause the following documents to be served on the accused-
(a) a statement of the charges against him,
(b) a copy of any sworn information in writing upon which the proceedings were initiated,
(c) a list of the witnesses whom it is proposed to call at the trial,
(d) a statement of the evidence that is to be given by each of them, and
(e) a list of exhibits (if any).
(2) Copies of the documents shall also be furnished to the Court.
(3) The accused shall have the right to inspect all exhibits.
(4) The prosecutor may cause to be served on the accused and furnished to the Court a further statement of the evidence to be given by any witness a statement of whose evidence has already been supplied."
2 "(1) Where the accused has been sent forward for trial the Attorney General shall cause to be served on him a list of any further witnesses whom he proposes to call at the trial, with a statement of the evidence that is to be given by each of them, a list of any further exhibits, a statement of any further evidence that is to be given by any witness whose name appears on the list of witnesses already supplied, and copies of any statement recorded under section 7 and any deposition taken under that section or under...
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