O'Leary v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [1989 No. 8949P]
• Court: High Court

O'Leary v. The Attorney General

Donal O'Leary

Plaintiff

and

The Attorney General, Defendant

[1989 No. 8949P]

High Court

Constitution - Personal rights - Criminal offence - Trial - Presumption of innocence - Burden of proof - Legal or persuasive burden - Evidential burden - Distinction - Onus - Evidence - Statutory inference - Whether court obliged or merely empowered to convict - Constitution of Ireland, 1937, Article 38

Evidence - Criminal law - Burden of proof - Onus - Shifting onus - Unlawful organisation - Membership- Chief Superintendent's belief - "Shall . . . be evidence" - Incriminating document in possession of accused - Offences Against the State Act, 1939 (No. 13), s. 24 - Offences Against the State (Amendment) Act, 1972 (No. 26), s. 3.

Section 24 of the Offences Against the State Act, 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 person was a member of the said organisation at the time alleged in the said charge."

Section 3, sub-s. 2 of the Offences Against the State (Amendment) Act, 1972, provides:—

"Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member."

The plaintiff was convicted by a Special Criminal Court on two counts of membership of an unlawful organisation contrary to s. 21 of the Act of 1939 and of possession of incriminating documents contrary to s. 12, which convictions on appeal were affirmed by the Court of Criminal Appeal. The evidence against him had included testimony reiterated under cross-examination by Chief Superintendent McK. that it was his belief that on the 18th April, 1987, the plaintiff was a member of the I.R.A., an unlawful organisation. In his own evidence the plaintiff denied membership of an unlawful organisation and accepted that 37 posters with the words "I.R.A. calls the shots" had been in his possession on the same day but that he had held them as a member of Sinn Féin. A year after his conviction was affirmed by the Court of Criminal Appeal, the plaintiff by plenary summons sought declarations in the High Court that s. 24 of the Act of 1939 and s. 3, sub-s. 2 of the Act of 1972 were invalid having regard to the provisions of the Constitution in that they allowed the prosecution to place upon an accused the burden of disproving his guilt.

Held by Costello J., in dismissing the plaintiff's claim, 1, that taking into account its widespread recognition internationally and its integral place in the long common law tradition adopted by the State, the presumption of innocence of an accused in a criminal trial was a right protected by the Constitution.

2. That such constitutional right related to the legal or persuasive burden of proof which lay upon the prosecution throughout a trial (as opposed to the evidential burden of proof which merely raised a prima facie case against an accused without discharging that legal burden of proof) of establishing his guilt beyond all reasonable doubt.

3. That, notwithstanding the wide variety of statutory provisions in the criminal law which effected some shifting of the burden of proof, the interpretative principle to be applied in each case was that that burden was legal or persuasive where, upon its discharge by the prosecution and the accused's failure to adduce exculpatory evidence, the court of trial became obliged to convict, whereas that burden was evidential only where in identical circumstances the accused might be acquitted because the prosecution case had not been proved beyond all reasonable doubt.

4. That, furthermore, the statutory shifting of the burden of proof in certain cases might do no more than give legal effect to inferences ordinarily made from the facts so proved and if such inferences raised a prima facie case requiring rebuttal, it did not follow that their statutory incorporation must thereby be unconstitutional.

5. That, upon proper interpretation, s. 3, sub-s. 2 of the Act of 1972 merely rendered in certain trials statements of belief admissible in evidence which would otherwise be inadmissible, but did not determine the weight to be given to it, still less that the court of trial was obliged to convict the accused in the absence of exculpatory evidence; and that in the absence of any evidence on the part of the accused, if the court of trial did not hold that all the evidence established beyond a reasonable doubt that the accused was a member of an unlawful organisation, then it was obliged to acquit.

6. That having regard to the specific provisions of s. 24 of the Act of 1939, the section did no more than shift an evidential burden of proof upon drawing certain inferences, the weight of which depended very much upon the type of facts establishing them and, similarly, that the reception of such evidence did not oblige the court of trial to convict.

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

Per Costello J.: The right of the presumption of innocence protected by the Constitution may in appropriate circumstances be abridged.

X v. United Kingdom [1971] E.C.H.R. 135; Tot v. United States (1943) 319 U.S. 463;Leary v. United States (1969) 395 U.S. 6 and County Court of Ulster County, New York v. Allen (1979) 442 U.S. 140 considered.

Quaere: Whether the proceedings, commenced by plenary summons over one year after the plaintiff's application for leave to appeal against conviction had been refused and seeking only declaratory relief which would not by itself quash the plaintiff's conviction or the order for his detention, were properly constituted.

Cases mentioned in this report:—

County Court of Ulster County, New York v. Allen (1979) 442 U.S. 140.

Leary v. United States (1969) 395 U.S. 6; 23 L.Ed. (2d) 57.

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

Ryan v. Director of Public Prosecutions [1989] I.R. 399; [1989] I.L.R.M. 333.

The State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110 I.L.T.R. 9 (H.C.); (1976) 112 I.L.T.R. 37 (S.C.).

Tot v. United States (1943) 319 U.S. 463; 87 L.Ed. 1519.

X. v. United Kingdom 5124/71 (Decision of European Commission on Human Rights), 4 Collection of Decisions, 42, 135.

Plenary Summons

The facts are summarised in the headnote and fully set out in the judgment of Costello J., post.

A plenary summons was issued on the 27th July, 1989, and the matter came on for hearing before the High Court (Costello J.) on the 12th July, 1990.

Cur. adv. vult.

Costello J.

The facts

On the 19th November, 1987, the plaintiff was convicted by the 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 on the 18th April, 1987. On the 29th July, 1988, his application for leave to appeal against his convictions was refused by the Court of Criminal Appeal but his sentence of five...