People v Towson


1990 WJSC-CCA 2996


O'Higgins (CJ)

Finlay (P)

Costello (J)

THE PEOPLE (at the suit of the Director of Public Prosecutions)

Wednesday, July 5th, 1978. IN JILL 1983 TO 1988


THE CHIEF JUSTICE: The Court has considered this has been brought by the defendant against his conviction and sentence for the offence of murder. The appeal has been prosecuted here by his counsel, Mr. MacEntee, pursuing the grounds of appeal which have been lodged in court. These grounds of appeal were some ten in number. One was not moved and the last was not really a ground of appeal and was not treated as such by counsel, The first two grounds of appeal were taken together and they related to the matter of the arrest of the accused. The facts were that the accused was arrested apparently in pursuance of the provisions ofSection Two of the Emergency Powers Act, under that Act, for the offence of being in possession of a firearm with intent to endanger life. Mr. MacEntee has submitted that this arrest was unlawful and in argument he put forward three grounds for that submission - three in effect. First of all he submitted that in principle there is no legal justification for arresting somebody for a lesser crime when the true reason for the arrest is a more serious crime. Secondly, he submitted that the actual arrest effected for the offence stated was in itself bad because sufficient particulars had not been given. And, thirdly, he submitted that in the circumstances and on the evidence in this case the effecting of an arrest under Section Two was a device used by the garda authorities for the purpose of abrogating or frustrating the constitutional rights which the accused would have been in a position to exercise. These submissions have to be understood in the light of the evidence in the case which was to the effect - and is admitted by the garda officers in charge of the investigation - that in fact the accused was wanted for the murder of Captain Nairac and that at the time and prior to his arrest the gardaauthorities had reasonable grounds fort suspecting his complicity or involvnent in that murder and also in the light of that state of mind and that knowledge, it was a positive decision on the part of the garda authorities to effect the arrest for the scheduled offence. And in these circumstances, Mr. MacEntee submitted the real reason or motive for the arrest was not stated and accordingly, this arrest was wrong in principle. In pursuance of his argument he relied on the case ofChristie v Vishinsky, 1947 (1) All England RepOrts, which was an authority dealing with the arrest of a person for a stated reason which was an offence under a local statute affecting the city of Liverpool. In fact, the arresting police officers had sound reasons for effecting a Common Law arrest because they suspected the person arrested to have been involved in black market activities, receiving stolen goods. In fact,the arrest which was effected - the reason for it - was not within the local statute and therefore had no legal authority and Christie's case does not appear to have relevance here because the actual arrest effected in Christie's case was an arrest which was not lawful and therefore it is understandable that the court, would hold, not having effected a lawful arrest which they could have, the arresting police officers could not cure something which was in fact devoid of legal authority. It does not appear to be an authority any further that that. In this particular case, there being a reasonable suspicion that the accused had been involved or committed the murder of Captain Nairac by shooting him involved inevitably a suspicion that he was guilty of an offence of being in possession of a firearm with intent to endanger life. Accordingly, there was no spurious invention of some imagined offence, it was a correctly held of an offence arising directly out of the matter being investigated by the investigating officers.Accordingly in the view of the court, the arrest could not be faulted on that ground. It was an arrest which came within the terms of Section Two of the Emergency Powers Act and, the offence being a scheduled offence, authority was given to effect an arrest if there were reasonable grounds for suspecting that such an offence had been committed/Secondly,Mr. MacEntee has submitted that that being so, if an arrest is an arrest under Section Two of the Offences Against The State Act, in the particular circumstances effecting an arrest merely for being in possession of a firearm with intent to endanger life was not in itself sufficient because sufficient particulars...

To continue reading