People v McMahon

• Jurisdiction: Ireland
• Judge: Hederman J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-CC 253
• Court: Circuit Court
• Docket Number: 75/1981
• Date: 01 January 1984

PEOPLE v. McMAHON

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS

-v-

THOMAS MoMAHON

1983 WJSC-CC 253

75/1981

COURT OF CRIMINAL APPEAL

Subject Headings:

EVIDENCE: hearsay

EVIDENCE: sufficiency

1 JUDGMENT of the Court delivered the 25th day of March1983by Hederman J.

2 25th day of March1983by Hederman J.

Hederman J.

3 The Applicant, Thomas McMahon, was convicted before the Special Criminal Court on 23rd November 1979 for the murder of Lord Louis Mountbatten at Donegal Bay in the County of Sligo, after .a Trial which lasted for 13days.

4 The Applicant has applied to this Court for leave to Appeal against hisconviction.

5 The Applicant has been allowed to argue his application on the following eight grounds which are in substitution for the original grounds forAppeal.

GROUNDS OF APPEAL

6 1. That inadmissible evidence of an extremely prejudicialnature was given on the second day. of the trial, by Detective Sergeant Dunne to the effect that the accused or either of them, had been involved in bombings or were known bombers or bomb-makers, thus rendering the trial unsatisfactory.

7 2. That the Special Criminal Court misdirected itself in law in refusing the Application made by Counsel for the Accused on the second day of the trial that the Court should not proceed further with the trial and should discharge itself from trying the case.

8 3. That by proceeding with the trial of the Accused after inadmissible and extremely prejudicial evidence had been given, the Court acted without and in excess of its jurisdiction by reason of the fact that the Applicant had been deprived of his basic right to be tried in due course of law.

9 4. Having regard to the matters set forth in the three preceding grounds, the Court failed and neglected, as directed by Article 40 of the Constitution, to protectand vindicate the right of the Applicant to a fair trial in accordance with the laws, procedures and rules of evidence applicable to a murder trial in the Central Criminal Court.

10 5. That the Special Criminal Court misdirected itself in holding that in the absence evidence that the Applicant had been on the boat "Shadow V", or had placed, or caused to be placed, explosives on the said boat, the Special Criminal Court was entitled to act on "the mere probability" that this had occurred.

11 6. That there was no evidence, or no sufficient evidence, upon which the Special Criminal Court could or should, reasonably find, establish or infer that the Applicant was in contact with Nitroglycerine and/or Ammonium Nitrate for use in the explosion which occurred on the saidboat.

12 7. That there was no evidence, or no sufficient evidence, upon which the Special Criminal Court could, or should, reasonably find, establish or infer that the Applicanthad been present on the boat Shadow V.

13 8. That there was no evidence, or no sufficient evidence, upon which the Special Criminal Court could, or should, reasonably find, establish or infer that the Applicant did either alone or in combination with other persons place explosives on the boat Shadow V.

14 At the hearing of this application Counsel for the Applicant accepted the suggestion of the Court to deal with the first four groundstogether.

The facts to which these four grounds relate:

15 The Applicant was tried jointly with John Joe McGirl for the murder of Lord Mountbatten. On the second day of the Trial Counsel for the co-Defendant having objected to the admissibility of statements allegedly made by the co-accused the Court proceeded to hear evidence as to the admissibility of these statements.

16 Detective Sergeant Dunne while giving evidence on the admissibility of these statements was cross-examined by Counsel for Mr. McGirl. The following is an extract fromthe transcript of that cross-examination:

17 2 "391. When you arrived at 12.30 a.m. that night, you knew that he had been questioned by several other officers? I wasn't aware, my Lords, if I may clarify something... I hadn't seen the accused until 12.30 and at that time I was aware that the accused man was Francis McGirl. Prior to going to Granard, I believed that the two men in custody were Patrick Rehill and Thomas McMahon. I was aware he had been questioned by Detective-Guard Hughes.

18 392. Were you aware he had been questioned by several officers before you came into question him? - I was aware he had beenquestioned.

19 393. Can you tell us why you were going in to question him? - It was a normal procedure. I was with an investigation team. I was with Inspector Canavan. I entered the room and spoke to him and asked him for an account of his movements. There was nothing out of the ordinary about that, it was a normalinvestigation.

20 3 "394. I don't know if you regard yourself as a lawyer, is it your interpretation of the Act that he could be questioned a hundred times about his movements? -There was no question of interrogation. I asked the accused for an account of his movements and I cautioned him. He volunteered an account of his movements, there was no question of not giving an account.

21 395. Did you hear the accounts given by the men who sat in the witness box before you? - I heard some of Detective-Guard Hughes' evidence, yes.

22 396. Did you hear the suggestion that was put to Detective McGearty, that the accused was told he was telling lies? - I did.

23 397. And you heard his denial? - I did.

24 398. Was it put to the accused that what he was telling you was lies? - I don't believe I mentioned the word "lies". I didn't believe the account he was giving.

25 399. Well, did you tell him that you did not believe the account he was giving? -,I would have expected him to

26 4 "400. I'm not asking you what you expected, I am asking you what you put to him, did you put it to him that he was telling you lies? - I told him I didn't believe the account he had given.

27 401. Did you roar and shout at him that you didn't believe him? - No, my Lords.

28 402. Did you shout questions at him? - No.

29 403. Did you walk around with him? -No.

30 404. Did you blow smoke at him? - I don't smoke, my Lords.

31 405. Were you aware he had no tea from 5.30 that afternoon? - No, myLords.

32 406. When you were telling him that you didn't believe him, what was his reaction to that? - He was quite nervous and I felt that he had something to tell us, that he had been involved in something.

33 407. He was quite nervous, you tell us? - He smoked a lot.

34 408. Would that be because you had frightened him? - No, my Lord, I am just making an observation on him.

35 409. Did you put it to him specifically that LordMountbatten had been killed by a bomb explosion on his boat? - That is in my statement of evidence ...

36 410. I am not asking you about that, I am asking if you put it to him specifically that Lord Mountbatten had been killed by a bomb explosion? - No, my Lord.

37 411. You never mentioned to him that Lord Mountbatten had been killed by a bomb explosion? - No, my Lord.

38 412. Were you on an investigation in Granard, Longford on that day? - My Lords, I don't think I have given a full explanation of my reason for being there. I had never met the Applicant,.McGirl before.

39 413. Were you investigating the explosion which had occurred at Mullaghmore on the 27th, answer yes or no?-A yes or no answer wouldn't be proper -

40 414. JUDGE: Why? - Because I feel that I should have to explain the reason for going there. JUDGE: Mr. Egan, I presume you want him to answer the question.

41 415. MR. EGAN: Was that the main purpose that brought you"from Dublin to Granard? - My Lords, I was given an instruction to go and interview Patrick Rehill and Thomas McMahon.

42 416. JUDGE: In connection with what? - I knew, my Lords, at that stage that Patrick Rehill had been involved in bombings and I also knew at that stage that I knew something in relation to ThomasMcMahon.

43 417. When you got instructions to go to Granard to interview Patrick Rehill, in connection with what were your instructions? - The instructions were that I was to go with other members to interview them and find out the reason for their presence. I went to Granard that morning because it was known at that stage that an explosion had taken place at Mullaghmore. Patrick Rehill was a known bomber and Thomas McMahon was a bomb maker.

44 418. MR. EGAN: Were you not investigating the bombing which had taken place at Mullaghmore? - Initially, my Lords, I was to go to Granard and I would have gone"to Mullaghmore after my period in Granard.

45 419. JUDGE: Did your visit to Granard have anything to do with the bombing in Mullaghmore? - Yes, my lord. JUDGE: That's what we wanted to know."

46 At this stage in the Trial, the Court adjourned for lunch.

47 After lunch Counsel for the Applicant asked the Court to disqualify itself and a similar application was made by Counsel for the co-accused. In making the application to the Court to discharge itself Counsel in his submissions included the following statement:

".......in all the circumstances I would, with great reluctance and while acknowledging that your Lordships will do everything in your power to put this matter out of your minds and will no doubt succeed as experienced jurists in doing so, I would ask your Lordships to disqualify this Court as presently constituted with proceeding with the Trial as against Mr. McMahon".

48 Refusing Counsel's application the Court of Trial ruled asfollows:-

"The Court accepts the submission made by Counsel for each of the accused that the answer as given by Detective Sergeant Dunne was extremely prejudicial, and if it were made in the presence of a jury each member of this Court would have no doubt but that the accused would be entitled to a discharge of the jury. However, each member of this Court is an experienced judge and if I say so myself, experienced lawyers, and we are quite capable of putting...