O'Leary v Attorney General

JurisdictionIreland
CourtSupreme Court
Judgment Date24 May 1995
Date24 May 1995
Docket Number[S.C. No. 336 of 1990]
O'Leary v. The Attorney General
Donal O'Leary
Plaintiff
and
The Attorney General, Defendant
[S.C. No. 336 of 1990]

Supreme Court

Constitution - Personal rights - Trial in due course of law - Whether incorporating presumption of innocence - Whether infringed by statutory provision that proof of possession of certain documents "shall, without more, be evidence until the contrary is proved" of membership of unlawful organisation - Offences Against the State Act, 1939 (No. 13), s. 24 - Constitution of Ireland, 1937, Article 38, s. 1.

Criminal law - Membership of unlawful organisation - Statute providing that proof of possession of certain documents "shall, without more, be evidence until the contrary is proved" of membership of unlawful organisation - Whether court bound to convict accused of such membership once possession of such documents proved - Offences Against the State Act, 1939 (No. 13), s. 24.

Article 38, s. 1 of the Constitution of Ireland, 1937, provides that "no person shall be tried on any criminal charge save in due course of law".

Section 21 of the Offences Against the State Act, 1939, as amended, creates the offence of membership of an unlawful organisation; and s. 12 of the Act of 1939 creates the offence of possession of an "incriminating document".

Section 24 of the Act of 1939, provides as follows:—

"On the trial of a person charged with the offence of being a member of an unlawful organisation, proof to the satisfaction of the court that an incriminating document relating to the said organisation was found on such person or in his possession or on lands or in premises owned or occupied by him or under his control shall, without more, be evidence until the contrary is proved that such a person was a member of the said organisation at the time alleged in the said charge."

By virtue of s. 2 of the Act of 1939, an "incriminating document" is

"a document of whatsoever date, or bearing no date, issued by or emanating from an unlawful organisation or appearing to be so issued or so to emanate or purporting or appearing to aid or abet any such organisation or calculated to promote the formation of any unlawful organisation."

The plaintiff was convicted by a Special Criminal Court of possession of incriminating documents and, on foot of such possession, of membership of an unlawful organisation, namely the I.R.A. The documents in question were thirty seven posters with a picture of a man in paramilitary uniform brandishing a rifle and bearing the words"I.R.A. calls the shots". In giving evidence at the trial, the plaintiff admitted possession of the documents, but contended that he had them as a member of another organisation, which was not unlawful.

The plaintiff sought a declaration that the provisions of s. 24 of the Act of 1939, infringed the constitutional right to a trial in due course of law, and in particular the presumption of innocence, by placing upon an accused the burden of disproving his guilt. The plaintiff's claim was dismissed by the High Court.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Egan, Blayney and Denham JJ.), in dismissing the plaintiff's appeal, 1, that the presumption of innocence in a criminal trial was implicit in the requirements of Article 38.

2. That s. 24 of the Act of 1939, must be construed in accordance with the presumption of constitutionality.

East Donegal Co-operative Livestock Marts Ltd v. The Attorney General [1970] I.R. 317 applied.

3. That construing the section accordingly, possession of an incriminating document (which the plaintiff had admitted) amounted to evidence, rather than proof, of membership of an unlawful organisation, so that the probative value of such possession might be shaken by cross-examination or evidence of the mental capacity of the accused or of the circumstances in which he came to be in such possession, or otherwise; and that while the evidentiary burden was undoubtedly shined to an accused, the legal or persuasive burden was not, and nor was the presumption of innocence displaced.

The Queen v. Oakes [1986] 1 S.C.R. 103 distinguished.

Cases mentioned in this report:—

Condon v. The Minister for Labour [1981] I.R. 62.

D. v. Director of Public Prosecutions [1994] 1 I.L.R.M. 435.

East Donegal Co-operative Livestock Marts Ltd. v. The Attorney General[1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Hardy v. Ireland [1994] 2 I.R. 550.

McDonald v. Bord na gCon [1965] I.R. 217; (1965) 100 I.L.T.R. 89.

The Queen v. Oakes [1986] 1 S.C.R. 103; [1987] L.R.C. (Const.) 477.

Appeal from the High Court.

The facts and the relevant statutory provisions have been summarised in the headnote and are fully set out in the judgment of the Supreme Court,infra.

The High Court proceedings are reported at [1993] 1 I.R. 102.

Notice of appeal was filed on the 28th November, 1990.

A preliminary issue was raised as to whether the plaintiff had locus standi.

The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Egan, Blayney and Denham JJ.) on the 8th February, 1995.

Cur. adv. vult.

Pursuant to the provisions of Article 34, s. 4, sub-s. 5 of the Constitution of Ireland, 1937, a single judgment of the Court was delivered.

O'Flaherty J.

This is an appeal brought on behalf of the plaintiff, Donal O'Leary, from the judgment of Costello J. (as he then was) delivered on the 26th October, 1990, refusing a declaration that the provisions of s. 24 of the Offences Against the State Act, 1939, are invalid having regard to the provisions of the Constitution.

The background facts of the case, the submissions made, the analysis of analogous legal provisions are so fully set forth in the course of the High Court judgment (reported in [1993] 1 I.R. 102) as to require only a short recapitulation here.

On the 19th November, 1987, the plaintiff was convicted by a Special Criminal Court of:—

  • (1) membership of an unlawful organisation, contrary to s. 21 of the Offences Against the State Act, 1939, as amended, and

  • (2) possession of incriminating documents, contrary to s. 12 of the same Act,

both offences having been committed, it was alleged, on the 18th April, 1987. On the 29th July, 1988, his application for leave to appeal against his conviction was refused by the Court of Criminal Appeal. The year following, on the 27th July, 1989, he issued proceedings for declarations that s. 24 of the Act of 1939 and that s. 3, sub-s. 2 of the Offences Against the State (Amendment) Act, 1972, (this is the provision that allows the court to receive the...

To continue reading

Request your trial
30 cases
  • Donnelly v Judges of Dublin Metropolitan District Court
    • Ireland
    • High Court
    • 3 March 2015
    ...(1996) 22 E.H.R.R. 29. O'Leary v. The Attorney General [1993] 1 I.R. 102; [1991] I.L.R.M. 454. O'Leary v. The Attorney General [1995] 1 I.R. 254; [1995] 2 I.L.R.M. 259. The People (D.P.P.) v. P.J. Carey (Contractors) Ltd. [2011] IECCA 63, [2012] 1 I.R. 234. The People (Director of Public Pr......
  • McNulty v Ireland and Attorney General
    • Ireland
    • Supreme Court
    • 21 January 2015
    ...the Court not accept the foregoing, and finds that the section creates no more than an evidential presumption, the decisions of O'Leary v. Attorney General [1993] 1 I.R. 254 and Hardy v. Ireland [1994] 2 I.R. 550 are distinguishable from the present case. 18 It was submitted that s. 41(3) ......
  • Markey v Minister for Justice and Others
    • Ireland
    • High Court
    • 4 February 2011
    ...v Mackin [2010] IECCA 81/82 (Unreported, CCA, Hardiman J, 19/7/2010), Hardy v Ireland [1994] 2 IR 550, O'Leary v Attorney General [1995] 1 IR 254 and Rock v Ireland [1997] 3 IR 484 considered - JF v Director of Public Prosecutions [2005] IESC 24 [2005] 2 IR 174, O'Callaghan v Mahon [200......
  • DPP v Maguire
    • Ireland
    • Court of Criminal Appeal
    • 7 May 2008
    ...... . 35 As to the general objection that the trial judges failed to have sufficient regard to the defence put forward, this ......
  • Request a trial to view additional results
6 books & journal articles
  • Subject Index
    • United Kingdom
    • International Journal of Evidence & Proof, The Nbr. 15-4, October 2011
    • 1 October 2011
    ...& Lynch 77 Cal App 4th 278, 91Cal Rptr2d 453 (1999) . . . . . . . . . . . . . . . . . 148O’Leary v Attorney General [1993] 1 IR 102, HC,[1995]1 IR 254, SC. . . . . . . . . . . . . . . . .182, 197Oceanbulk Shipping and Trading SA v TMT AsiaLtd [2010] UKSC 44, [2010] 4 All ER 1011. . . . . . ......
  • Threats to the Presumption of Innocence in Irish Criminal Law: An Assessment
    • United Kingdom
    • International Journal of Evidence & Proof, The Nbr. 15-3, July 2011
    • 1 July 2011
    ...OF INNOCENCE IN IRISH CRIMINAL LAW61 Campbell, Kilcommins and O’Sullivan, above n. 21.62 Ibid. at 349.63 [1993] 1 IR 102, HC, [1995] 1 IR 254, SC.64 [1994] 2 IR knowingly in his possession or under his control any explosive substance undersuch circumstances as to give rise to a reasonable s......
  • Truth To Be Told: Understanding Truth In The Age Of Post-Truth Politics
    • Ireland
    • Irish Judicial Studies Journal Nbr. 1-19, January 2019
    • 1 January 2019
    ...if that could be held out to a jury as ground on which they might find him guilty, he might obviously be in great peril’. 79O'Leary v AG [1995] 1 IR 254 (SC). 80Criminal Justice Act 1984 s 23. 81Criminal Justice Act 1982 s 72. [2019] Irish Judicial Studies Journal Vol 3 IRISH JUDICIAL STUDI......
  • Book Review: The presumption of innocence in Irish criminal law: Whittling the golden thread, Claire Hamilton. Dublin: Irish Academic Press, 2007. 252 pp. 27.50. ISBN 0716534088
    • United Kingdom
    • Punishment & Society Nbr. 12-1, January 2010
    • 1 January 2010
    ...of her book.Notes1 Book of Genesis 18: 23–32.2 [1935] AC 462, 481.3 [1966] IR 501, 513 (per Walsh J).4O’Leary v. Attorney General [1995] 2 ILRM 259.ReferenceBlackstone, William (1979/1769) Commentaries on the laws of England, Book IV.Chicago, IL: University of Chicago.Conor HanlyNational Un......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT