People (Attorney-General) v White

• Jurisdiction: Ireland
• Judgment Date: 06 February 1947
• Date: 06 February 1947
• Court: Court of Criminal Appeal

Court of Criminal Appeal

The People (Attorney-General) v. White

THE PEOPLE (at the suit of the Attorney-General)

and

HENRY WHITE (1)

Criminal law - Appeal - Charge of murder - Conviction - Resisting arrest - Garda killed while endeavouring to effect arrest of accused - No evidence of deceased Garda's lawful authority to arrest accused - No evidence that accused was aware of deceased Garda's authority - Courts of Justice Act,1924, (No. 10 of 1924) s. 34 - Conviction of murder set aside - Conviction of manslaughter recorded and sentence varied.

Criminal Appeal.

The applicant, Henry White, was tried before the Special Criminal Court on a charge of having murdered, on the 24th day of October, 1942, Detective Garda George Mordant, and was convicted and sentenced to death by the Court on the 12th of December, 1946.

An application by the accused to the Special Criminal Court for a certificate giving leave to appeal was refused. The accused thereupon applied to the Court of Criminal Appeal for leave to appeal on the following grounds:—

1. That the verdict of the Court was against the evidence, or alternatively, against the weight of the evidence and without sufficient evidence to support it.

2. In particular (but without prejudice to the generality of the foregoing ground) that the findings of the Special Criminal Court based upon the medical evidence were erroneous for the reasons following:—

(a) That the said medical evidence was based upon measurements which were admitted not to be accurate to the degree required in the circumstances.

(b) That there was no evidence before the Special Criminal Court as to the exact diameter of either a lead or nickel plated .45 bullet after its passage through the barrel of a .45 revolver.

(c) That, that degree of precision and certainty required to sustain a conviction was absent from the said medical evidence.

(d) That the Special Criminal Court disregarded the evidence of Mr. J. C. Flood.

(e) That the said medical evidence upon which the said Criminal Court based its findings was inconclusive, contradictory and in the circumstances unreliable.

3. That evidence which was, or should have been available to the prosecution concerning bullet marks, bullets and cartridge cases, found at the scene, was not tendered and that such evidence, as was tendered, was unreliable.

4. That the case against the accused resting solely on circumstantial evidence, the evidence was not solely consistent with the guilt of the accused and inconsistent with his innocence.

5. That apart from the question of whether the accused fired the bullet which killed Detective Officer Mordant, there was no evidence:—

(a) That Detective Officer Mordant was lawfully seeking to arrest the accused.

(b) That the accused knew that the persons who were firing at him, and at whom he was firing, were police officers in the execution of their duty.

(c) that the firing was started by the accused, or alternatively that the firing was started by police officers after due warning.

6. That the Court misdirected itself in allowing the claim of privilege by Superintendent Gantly.

7. That evidence of an inadmissible nature was admitted in evidence against the accused.

8. That the Court as constituted, should not have tried the accused, for the reasons stated before the arraignment of the accused, when exception was taken to the composition of the Court.

9. That the trial of the accused should have been adjourned or postponed for the reasons advanced at the outset of the trial.

10. That the trial of the accused was unsatisfactory.

The accused was convicted and sentenced to death by the Special Criminal Court for the murder of G. M., a Detective Garda, while the latter, with other Gardai, was endeavouring to arrest the accused and another man. Shots were exchanged between the Gardai and the accused and the other man, and, in the course of the firing, G. M. was killed. The ground of arrest of the other man, without a warrant, was his membership of an illegal organisation, but the Gardai did not know the identity of the accused, and no cause for his arrest was alleged by any witness in the course of the trial.

Held, that the Special Criminal Court was entitled to find, on the evidence, that the accused fired the fatal shot, but that, in the circumstances proved and on the evidence, the offence committed was manslaughter and not murder. Conviction of manslaughter recorded and sentence varied accordingly.

Cur. adv. vult.

The judgment of the Court was delivered by Gavan Duffy P.

Gavan Duffy P. :—

At about ten o'clock at night on Saturday, the 24th day of October, 1942, Detective Garda George Mordant was found dead, shot through the head, in the back garden of a small house, No. 5 Oak Road, Donnycarney, in the suburbs of Dublin. There is no doubt that the officer was killed that night by a bullet and there is no suggestion that his wound was self-inflicted. Four years later, in December, 1946, Henry White was tried for the murder of George Mordant by a Special Criminal Court, established under the Offences against the State Act, 1939 (No. 13 of 1939), and he was found guilty of murder and sentenced to death. He now applies to this Court for leave to appeal against that conviction and sentence and this Court will treat that application as his appeal. This...