People (Attorney General) v Martin

• Jurisdiction: Ireland
• Judgment Date: 28 May 1956
• Date: 28 May 1956
• Court: Court of Criminal Appeal

The People (Attorney) General v. Martin

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

JAMES MARTIN (1)

Court of Criminal Appeal.

Supreme Court.

Criminal law - Evidence - Identification - Refusal to take part in identification parade - Whether any positive rule of law or practice which requires holding of an identification parade.

There is no positive rule of law or practice of general application which requires the holding of an identification parade. Each case must be considered on the evidence adduced and its own particular circumstances.

So held by the Supreme Court (Lavery, Kingsmill Moore, O'Daly, Maguire and Dixon JJ.).

Attorney-General v. Costello (2) (unreported) discussed and considered.

Criminal Appeal.

The appellant, James Martin, was tried by the President of the Circuit Court and a jury on the 29th January, 1954, and convicted of the offences of store-breaking and larceny contrary to the Larcency Act, 1916, s. 26, sub-s. 1, and with the offence of wounding with intent to resist arrest contrary to the Offences Against the Person Act, 1861, s. 18. He had previously been convicted of these offences at a previous trial. This earlier conviction had been set aside by the Court of Criminal Appeal and a new trial ordered.

During the early hours of the morning of the 4th April, 1953, the premises of the Dublin Distributing Company at 33 James' Street, Dublin, were broken into and property was stolen therefrom. Guard Holden, who was on duty in the vicinity of the premises at about 3.45 a.m., while investigating a noise in the premises saw two men on the roof of a shed between the Company's premises and the adjoining premises. One of the men, later identified as one, Edward Whelan, jumped down from the wall into the yard where the guard was standing. The other man, later identified as James Martin, was entangled in barbed wire. He released himself from the wire and jumped down to where the guard was standing. Subsequently a struggle took place between the guard and Martin which continued for at least five or six minutes. This struggle, in which Martin was assisted by Whelan for part of the time, was unsuccessful in preventing the men from escaping and caused serious injury to the guard. Another guard, Guard Hennelly, arrived at the premises at about 3.55 a.m., and saw a man, later identified as James Martin, on the roof of the shed. He shone a torch on the face of the man and called on him to come down. Neither of the guards had previously known these men.

On the 16th April, 1954, an attempt was made to hold an identification parade in the Bridewell, at which Guard Holden was to attend to see if he could identify the persons

involved in the commission of the offences. It was intended that both Whelan and Martin, who had been previously arrested, should parade, and a group of men were gathered together for the purpose. Both men refused to go on parade and were removed from the landing where the parade was to have taken place. Later, Whelan was brought back to the landing where the group of men were standing in a semi-circle and he took up a position some little distance away from them. Guard Holden was called up to the landing and was asked by the sergeant in charge of the parade if he saw anyone he identified, whereupon he identified Whelan as one of the men who assaulted him on the morning of the 4th April, 1954. Guard Holden was then requested to go into one of the cells adjoining the landing. He did so and the door was closed while the group of men broke up. Some few minutes later the same group of men were gathered together again in similar fashion and this time Martin was brought in and he took up a position immediately in front of the group of men and in the centre of the semi-circle. When Guard Holden was called on to the landing he identified Martin as the other man who assaulted him on the morning of the 4th April, 1954.

Martin had been arrested in a cinema by Guard Brannigan, who was accompanied by Guard Hennelly. When Martin was brought by the guards from the cinema into the porch he was identified by Guard Hennelly as the man he had seen on the shed at the rear of the premises of the Dublin Distributing Company on the morning of the 4th April, 1954.

At the close of the evidence for the prosecution counsel for Martin applied to the trial Judge to direct the jury to acquit him on the ground that a proper identification parade is essential and a proper one was not held. The trial Judge refused the application. The trial Judge refused to grant a certificate that the case was a fit case for appeal to the Court of Criminal Appeal and Martin now applied to the Court of Criminal Appeal for leave to appeal against the conviction and sentence on the ground, inter alia, that the evidence of identification was unsatisfactory.

A certificate, pursuant to s. 29 of the Courts of...