The People (Attorney-General) v Kerins

JurisdictionIreland
CourtCourt of Criminal Appeal
Judgment Date15 Nov 1945

Court of Criminal Appeal.

The People (Attorney-General) v. Kerins.
THE PEOPLE (at the suit of the Attorney-General)
and
CHARLES KERINS (1)

Criminal law - Appeal - Charge of murder - Special Criminal Court - Inadequacy of summary of evidence alleged - Not a ground of appeal un ess objection taken at trial - Whether prosecution entitled to prove that person already acquitted was present at the crime - Discretion of prosecution as to materiality of evidence - Right of prosecuting counsel to address Court for second time where accused is unrepresented and does not make any defence - Transcript of prosecuting counsel's closing address made part of official transcript of trial by order of Court of Criminal Appeal - Amending notice of appeal - Adding new grounds of appeal to those specified in notice - Offences Against the State Act, 1939 (No. 13 of 1939), s. 41, sub-ss. 1 and 4 -Rule 13 of the Rules of the Special Criminal Court (Stat. R. & Or., 1939,No. 266) - Rule 5 of the Additional Rules of the Special Criminal Court (Stat. R. & Or. 1939, No. 346) - Courts of Justice Act, 1924, s. 33 -Criminal Procedure Act, 1865 (28 & 29 Vict. c. 18), s. 2.

Application for leave to appeal.

The applicant, Charles Kerins, was, on the 9th of October, 1944, tried before the Special Criminal Court on a charge of having, on the 9th day of September, 1942, murdered Detective Sergeant Denis O'Brien, and was convicted and sentenced to death by the Court.

The Special Criminal Court refused to grant a certificate for leave to appeal.

In the Court of Criminal Appeal counsel on his behalf applied for leave to appeal on the grounds, inter alia:—

(a) that material evidence was tendered at the trial by the prosecution which was not included in the summary of evidence furnished to the applicant prior to the trial in pursuance of r. 13 of the Rules of the Special Criminal Court (Stat. R. & Or., 1939, No. 266) and r. 5 of the Additional Rules of the Special Criminal Court (Stat. R. & Or., 1939, No. 346);

(b) that the Special Criminal Court was erroneously invited, and did in effect erroneously proceed, to adjudge that one, Michael Quill, who was not before the Court and who had been tried and acquitted of the same murder by a Military Court, was guilty, and that the said findings of the Special Criminal Court were based upon some of the evidence of identification of the said Michael Quill which was tendered to the said Military Court and rejected by it. Further, that the Special Criminal Court was invited to reach the said findings without being made aware of evidence which had been tendered before the said Military Court of a material nature, which negatived the evidence of identification of the said Michael Quill;

(c) that evidence of a material nature, which was tendered before the Military Court upon the said trial of Michael Quill concerning the persons who were seen at the scene of the murder, or their descriptions, was not made available to the Special Criminal Court;

(d) that, contrary to the law and to the practice in that behalf, counsel for the prosecution was allowed to address the Special Criminal Court a second time in support of the prosecution, the applicant being unrepresented by counsel or solicitor, and not having called any evidence, cross-examined any witnesses or having addressed the Court;

(e) that counsel for the prosecution in making the said closing address made erroneous submissions of law to the Special Criminal Court and drew inferences as to the facts not supported by the evidence;

(f) that the transcript of the proceedings was incomplete and insufficient in that it did not contain a report of the said closing address by counsel for the prosecution;

(g) that witnesses were asked questions in direct examination of an inadmissible nature generally and in particular regarding material matters;

(h) that the evidence was insufficient to sustain the verdict.

The facts of the case are, for the purpose of this report, sufficiently set forth in the judgment of the Court.

On the application of counsel for the applicant, the Court of Criminal Appeal requested the Special Criminal Court to furnish the transcript of the address made to that Court by counsel for the prosecution at the close of the evidence. The transcript of the said address was duly forwarded to the Court of Criminal Appeal and formed part of the official transcript of evidence for the purpose of this application for leave to appeal.

The applicant was convicted of murder before the Special Criminal Court. He made no defence at the trial and was not represented by counsel or solicitor. A certificate for leave to appeal was refused by the Special Criminal Court. He appealed to the Court of Criminal Appeal for leave to appeal.

Held by the Court of Criminal Appeal:—

1. As no objection was taken by the applicant in the Special Criminal Court on the ground of the alleged insufficiency of the summary of evidence furnished to him prior to the trial in pursuance of r. 13 of the Rules of the Special Criminal Court (Stat. R. & Or., 1939, No. 266) and r. 5 of the Additional Rules of the Special Criminal Court (Stat. R. & Or., 1939, No. 346), no objection could be taken on that ground in the Court of Criminal Appeal.

2. The acquittal of one person of the crime charged does not prevent the prosecution from seeking to establish at the trial of another person that the first person was present at the crime.

3. Although it is the duty of the prosecution in a criminal trial to put the entire facts and evidence before the Court, yet consistently with that general proposition, a wide discretion must be allowed to the prosecutor as to what evidence he considers material, and this discretion should be exercised fairly and honestly and in the interests of justice.

4. Sect. 2 of the Criminal Procedure Act, 1865 (28 & 29 Vict. c. 18), does not affect the right of prosecuting counsel, who has already made an opening speech, to address the Court as distinct from the jury where the prisoner is unrepresented and has not gone into evidence or cross-examined witnesses or addressed the Court.

5. The evidence at the trial was sufficient in law to justify the verdict and there was no indication that the Special Criminal Court had misdirected itself in law or that there was any miscarriage of justice.

Accordingly the application for leave to appeal was refused.

Semble: The putting of leading questions in direct examination regarding material and controverted matters is highly objectionable but may be quite permissible in the case of such hostile and unwilling witnesses as the particular witnesses in this case, proved to be.

Cur. adv. vult.

O'Byrne J. :—

The applicant, Charles Kerins, was tried before a Special Criminal Court, constituted in pursuance of the Offences Against the State Act, 1939, on a charge of having, on the 9th September, 1942, murdered Detective Sergeant Denis O'Brien, and he was, on the 9th October, 1944, convicted and sentenced to death. He applied to the said Court for leave to appeal against the said conviction and sentence and that application was refused. He now applies to this Court, by way of appeal against such refusal, for leave to appeal against said conviction and sentence.

The Notice of Application, which is dated the 14th October, 1944, sets out several grounds of appeal. On the 31st October, 1944, the applicant served notice that he would, on the hearing of the application, apply for leave to add the several additional grounds of appeal therein mentioned. It appeared that a copy of the official transcript of the proceedings at the trial was in the hands of applicant's advisers on the 26th October, 1944.

The right of an applicant to specify new grounds of appeal after he has received the transcript and has had an opportunity of scrutinising same has been considered by this Court on many occasions and it has been repeatedly held that such a practice is highly objectionable and should not be permitted save in the most exceptional circumstances.

Some of these new grounds of appeal dealt with an address made to the Court by prosecuting counsel at the close of the evidence, and it was alleged that the transcript of the proceedings was incomplete and insufficient in that it did not contain any report of this address. The official transcript showed that such an address had been made, but did not report it. At the request of counsel for the applicant, we requested the Special Criminal Court to furnish a transcript of this address, and this has now been done and the report, so furnished, forms part of the official transcript.

We allowed the applicant to amend his original Notice by adding to the grounds of appeal therein mentioned the new grounds of appeal, in so far as they referred to this address, and, subject thereto, we refused to allow the applicant to add to his grounds of appeal. It is only right to say, as admitted by counsel for the applicant, that the other new grounds are mainly in the nature of an amplification of the original grounds of appeal rather than an addition thereto.

The first ground of appeal relied upon in support of this application, was that the summary of evidence furnished to the applicant, prior to his trial, was defective and insufficient, and we were asked to call for and examine the summary of evidence for the purpose of determining whether it was sufficient and in accordance with the Rules of the Special Criminal Court. No objection was taken by the applicant to the summary of evidence at, or prior to, the trial, nor was it then suggested that it was not sufficient to apprise the applicant of the case that was to be made against him and of the evidence in support thereof.

Near the end of the trial, prosecuting counsel applied to the Court for special leave to adduce certain evidence which was not included in the summary of evidence. The sole object of this application was to enable...

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