People v Marley
1984 WJSC-CCA 1172
THE COURT OF CRIMINAL APPEAL
CRIMINAL LAW: trial
Judgment delivered the 2nd day of May 1984 by Keane J.
The applicant was convicted in the Dublin Circuit Court on the 30th June, 1982, on eleven counts of obtaining money on forged documents and three counts of uttering forged documents and sentenced to seven years penal servitude in respect of each count, the sentences to run concurrently. He has now applied to this Court for leave to appeal against his conviction in respect of each of the counts.
The charges against the applicant arose out of the administration of a scheme established in the year 1974 by the Minister for Agriculture and Fisheries and the Irish Fresh Meat Exporters Society Limited, and jointly funded by them, to give financial assistance to small farmers engaged in the raising of cattle. Under the terms of the scheme, small farmers who were eligible to participate were given cattle feed vouchers by local land offices. When these vouchers were presented to suppliers of cattle feed, they allowed the farmer a discount of £7–50 in respect of each voucher which he produced. The suppliers, in turn, on sending in the vouchers were entitled to be recouped the amount of the discount. The scheme was operated on behalf of the Minister and the Society by Mr. James Bastow of the firm of Messrs Bastow, Charlton and Company in conjunction with another company of his called "Bastow Expert Services Limited" at offices at No. 7 Gardiner Row, Dublin 1, until the 14th May, 1975. On that day, a fire occurred in the offices which resulted in some of the records and documents kept in relation to the scheme being damaged or destroyed. The surviving documents were then removed to another office and, in the course of a check then carried out, it transpired that there appeared to be more vouchers in existence than had in fact been issued. A Garda investigation then began and it soon became apparent that the excessive number of vouchers in existence was accounted for by the fact that a number of forged vouchers had been furnished to these firms.
The prosecution alleged that the applicant had rented a number of accommodation addresses in various parts of the country and from those addresses had sent in claims for recoupment to the firms, purportedly evidenced by forged vouchers and bill-heads with the names and addresses of fictitious suppliers. It was further alleged that the applicant opened bank accounts in a number of different branches in these fictitious names and lodged to the credit of those accounts the cheques sent to him by the firms in recoupment of the discounts purportedly given by the fictitious suppliers.
Evidence was given at the trial, which was not challenged, by the printers of the genuine vouchers that a number of vouchers supplied to the firms were forged. There was also evidence by a forensic expert that fingerprints on some of the forged vouchers were the fingerprints of the applicant and by a handwriting expert that the writing on some of the allegedly spurious bill-heads and the documentation in relation to the bank accounts operated by the fictitious suppliers was in the handwriting of the applicant. There was also evidence that no business of supplying cattle feed had been carried on at any of the addresses in question. Finally, a number of bank officials who dealt with the accounts in the allegedly fictitious names identified the applicant as the person who came to the bank and made lodgments and withdrawals.
The applicant was not professionally represented at his trial and also appeared in person in this Court. Fifteen grounds were set out by him in support of his application in an amended notice, but he did not seek to argue three of them. This judgment deals seriatim with the grounds of appeal actually argued by him.
The first ground is that the applicant was denied "the constitutional and fundamental right to be legally represented and defended by Counsel during this very serious and complicated trial". The applicant told this Court that he wished to be represented at his trial by a member of the Northern Ireland Bar and had sought in vain to have his trial adjourned for that purpose. The applicant first appeared before the Circuit Court on these charges on the 21st December, 1981 and a series of adjournments followed until he was arraigned before the President on the 23rd April, 1982. On that day, the date of the trial was fixed for the 14th June, 1982. The applicant told the President that he had no solicitor, but that he was ready to proceed. There is no record in the transcript of that day's proceedings or anywhere in the transcript of the lengthy trial which subsequently took place of the applicant having at any stage applied for an adjournment in order to be legally represented. The Court is of opinion that there is no substance in this ground of appeal and it is accordingly rejected.
The second ground of appeal was that the learned trial Judge "adjudicated on constitutional issues without jurisdiction. The learned trial Judge was called upon, by both the prosecution and the applicant, to rule upon a number of matters during the course of the trial, but he at no stage exceeded his jurisdiction The Court is of opinion that there is no substance in this ground of appeal which is, accordingly, rejected.
The third ground argued by the applicant was that a witness called by the prosecution made a disclosure to the jury to the effect that he (the applicant) was wanted by the police for murder and fraud. The applicant submitted that he was thereby severely prejudiced and denied a fair and impartial trial.
According to the transcript, one of the witnesses for the prosecution, a Mr. McNamara, was recalled at the request of the applicant on the eleventh day of the trial. The relevant extract from the transcript is as follows:-
"Q. 16. Were you aware sometime after the fire that I was wanted for this fraud?"
I think it was about two or three months after…… after the fraud was discovered Miss McCabe had told me that one man was wanted for the five firms and that was you.
JUDGE: Sorry, one man was wanted?
Was wanted for the firms, you know the five firms involved in the fraud and this man was Marley and he was also wanted for murder. That was Mr. Donegan had told me also that" he asked me actually about Mr. Marley here ....
18. MR. MARLEY:
Hold on, Mr. McNamara, I didn't ask you anything about that other charge there. My Lord, what is the position here?"
During the course of legal submissions which followed in the absence of the jury, it was made clear that the applicant had been acquitted by direction of the High Court on a charge of murder sometime previously. The learned trial Judge decided that it was not necessary, in the circumstances, to discharge the jury. He told the jury that the applicant had in fact been acquitted of a murder charge and that he was entitled to be treated by them as a completely innocent man.
The Court is of the opinion that the jury should have been discharged at this stage. The verdict of "guilty" reached by the jury after they had heard a witness say in the box that the applicant was "wanted for murder" is, in the opinion of the Court, a verdict which could not safely be allowed to stand.
The fourth ground argued by the applicant was that a serious irregularity occurred at the trial when a member of the jury separated from her fellow jurors without leave of the Court. It is clear from the transcript that after the first day of the trial lunch was provided for the jurors in Green Street. On the occasion referred to by the applicant, one of the members of the jury, instead of going to Green Street, met a friend for lunch. When the applicant objected to the juror's conduct, the learned trial Judge decided to exercise the discretion given to him by s.24 of the Juries Act 1976and directed that the juror in question should not continue to serve on the jury.
In the view of the Court, there is no substance in the submission advanced by the applicant. The juror in question was perfectly entitled not to avail of the lunch provided for her in Green Street, since the learned trial Judge had given no direction under s.25 of the Act of 1976 that the jurors should not separate before considering their verdict. Accordingly, no irregularity occurred as is alleged by the applicant and this ground of appeal is rejected.
The fifth ground argued by the applicant was that a serious irregularity occurred at his trial when what he discribes as "a large number of jury members" made telephone calls after the learned trial Judge had charged them and had sent them to their room to deliberate.
It appears from the transcript (Book W.p13A) that the learned trial Judge, having reminded the jury again of the presumption of innocence in favour of the applicant, said:
"Now will you be good enough to retire…"
There followed some discussion, apparently in the presence of the jury, between the learned...
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