The State (O'Connor) v O Caomhanaigh

• Jurisdiction: Ireland
• Judgment Date: 28 June 1963
• Date: 28 June 1963
• Court: Supreme Court

Supreme Court

Court of Criminal Appeal.

Supreme Court

The State (O'Connor) v. Ó Caomhanaigh

THE STATE (at the Prosecution of WILLIAM JOSEPH O'CONNOR)

and

SEÁN seánÓ CAOMHANAIGH ó caomhanaigh (Governor of Mountjoy Prison) and By Order SAME v. JOHN A. FURLONG (Governor of Mountjoy Prison)

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

WILLIAM JOSEPH O'CONNOR

Constitution of Ireland - Criminal law - "Whiteboy" offences - Provisions of Tumultuous Risings (Ireland) Act, 1831, s. 3, not repugnant to provisions of the Constitution.

Criminal law - Offences under Tumultuous Risings (Ireland) Act, 1831, s. 3 -"Whiteboy" offences - Trial - Prosecution ready to offer evidence of disturbed state of locality - Such evidence excluded as inadmissible on application of defence - Appeal against conviction on ground that such evidence was an essential ingredient of offences charged - Permissible ground of appeal notwithstanding conduct of defence at trial - Such evidence not an essential ingredient of the offences charged - Tumultuous Risings (Ireland) Act, 1831 (1 & 2 Wm. 4, c. 44), s. 3.

Criminal Appeal.

The accused, William Joseph O'Connor, was tried in the Central Criminal Court, on the 3rd May, 1961, on five charges of having committed offences contrary to the provisions of s. 3 of the Tumultuous Risings (Ireland) Act, 1831, and also with offences under the provisions of s. 63 of the Post Office Act, 1908, and the provisions of s. 7 of the Conspiracy and Protection of Property Act, 1875. The relevant facts have been summarised in the head-note and appear fully in the judgment of Ó Dálaigh ó dálaigh C.J., post, at p. 122. The accused was convicted of the offences charged under the Act of 1831 and acquitted on the remaining charges; he was sentenced to two years' imprisonment on each of the counts upon which he was convicted. The trial Judge (Kenny J.) refused a certificate of leave to appeal and the accused applied to the Court of Criminal Appeal for leave to appeal against conviction and sentence on the ground, inter alia, that the conviction was bad by reason of the absence of evidence establishing that the district in which the offences were alleged to have been committed was in a disturbed state within the meaning of the Whiteboy Acts.

Prior to the hearing of the appeal by the Court of Criminal Appeal the accused obtained a conditional order of habeas corpus to quash the said convictions and sentences. Cause was shown by the Governor of Mountjoy Prison and, on the application to have the conditional order made absolute notwithstanding cause shown, the High Court (Davitt P., Murnaghan and Henchy JJ.) allowed the cause shown and discharged the conditional order. The prosecutor appealed to the Supreme Court (1), on the ground that the provisions of s. 3 of the Act of 1831 1, are repugnant to the provisions of the Constitution, and 2, were impliedly repealed by subsequent legislation.

The provisions of s. 3 of the Tumultuous Risings (Ireland) Act, 1831, are not repugnant to the provisions of the Constitution, and they have not been impliedly repealed by subsequent legislation.

So held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Kingsmill Moore, Haugh and Walsh JJ.).

The accused was arraigned and tried at the Central Criminal Court on five counts of having written letters contrary to the provisions of the Tumultuous Risings (Ireland) Act, 1831. It was alleged that each of the letters threatened violence, injury or damage to the persons to whom the letters were sent in the event of their attending a "Station" at a specified dwelling-house. At the same time the accused was arraigned and tried on a series of charges of sending postal packets of a grossly offensive character to persons contrary to the provisions of the Post Office Act, 1908, s. 63, sub-s. 1 (c), and on a further series of charges of intimidation contrary to s. 7 of the Conspiracy and Protection of Property Act, 1875. All of the charges arose from the sending of letters by the accused to persons resident in a particular district in the County of Kerry. At the trial the prosecution was in a position, and ready, to produce evidence directed to show that the district in which the offences were alleged to have been committed was in a disturbed condition and that a series of outrages had taken place in that district which were connected with an agrarian dispute. Counsel for the accused objected, on various grounds, to the admission of this evidence and the trial Judge ruled that it was inadmissible. The accused was convicted on the charges under the provisions of the Tumultuous Risings (Ireland) Act, 1831, and was found not guilty upon the other charges. The trial Judge refused a certificate of leave to appeal and the accused applied to the Court of Criminal Appeal for leave to appeal against the conviction on the ground, inter alia, that the prosecution had omitted proving that the said district was in a disturbed state. The Court of Criminal Appeal refused to entertain the appeal, being of opinion that the accused should not be permitted to rely, as a ground of appeal, upon the absence of evidence which had been ruled inadmissible on the application of his counsel.

The Court, however, granted a certificate pursuant to the provisions of s. 29 of the Courts of Justice Act, 1924, that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. On the appeal to the Supreme Court, pursuant to the said certificate, it was

Held by the Supreme Court (Lavery, Kingsmill Moore and Walsh JJ.; Ó Dálaigh ó dálaigh C.J. and Henchy J. dissenting) that evidence of a disturbed state of the district in which the offences wore committed was not necessary to sustain a conviction of the offences charged under the Tumultuous Risings (Ireland) Act, 1831.

Held further by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Kingsmill Moore, Walsh and Henchy JJ.) that the accused was not estopped from raising the matter of the absence, of such evidence as a ground of appeal, notwithstanding the conduct of the defence at the trial in having the evidence withheld from the jury.

Per Walsh J.:—"In a criminal case an accused cannot, on appeal, be shut out because the judge's ruling which he is challenging, or a failure in proof upon which he relies, was brought about by legal submissions made on his behalf at the trial."

Davitt P. :—

This is an appeal brought by William J. O'Connor from the conviction and sentence entered at his trial before Mr. Justice Kenny and a jury at the Central Criminal Court in May, 1961. The indictment preferred against the accused contained a number of counts. He was found guilty of the offences contained in counts 2, 3, 7, 8 and 9 of the indictment. These counts were all concerned with charges of offences contrary to the Tumultuous Risings Act, 1831, sometimes known as the Whiteboy Act, 1831, and consisted of charges of threatening violence to the recipients of certain letters written by the accused. Having been convicted, the accused was sentenced to two years' imprisonment on each count, the sentences to run concurrently.

The grounds of the appeal are in effect threefold: grounds 1 and 2 on the notice of appeal have been disposed of by the judgment and order of the Supreme Court, delivered and made on the hearing of the appeal on the accused's application for an order of habeas corpus, and we are not concerned with those grounds of appeal. The third ground of appeal is in effect that the Tumultuous Risings Act, 1831, is limited in its application to a situation where "Whiteboy" activities are proved to have existed in the district, and that before the accused could be properly convicted of any offence under the provisions of the Whiteboy Act of 1831 evidence would have to be adduced which proved that the district in which the offence was committed was in a disturbed state by reason of the fact that activities of the nature of "Whiteboy" disturbances were being carried out in the area. It is argued that such evidence was not adduced at the trial and that accordingly an ingredient necessary to justify a conviction was not proved in evidence.

At the trial the State was prepared to adduce evidence which would have proved the disturbed state of the area. The evidence was available. In fact, the evidence was heard, in the absence of the jury, for the purpose of obtaining the ruling of the trial Judge as to its admissibility. This evidence consisted of a history of outrages against a family of O'Connors, resident in the area in which the recipients of these threatening letters live; and would have established that a series of outrages, including shootings, bomb explosions and assaults had been perpetrated in the district prior to the sending of these letters.

If that evidence had been adduced before the jury at the trial it would have had a compulsive effect upon the jury.

Mr. MacBride persuaded the trial Judge to rule out this evidence as inadmissible, and it was not given on oath before the jury. Notwithstanding that fact the jury returned a verdict of guilty on these charges. On this appeal Mr. Egan, now appearing on behalf of the accused, has argued that the trial Judge was wrong in ruling out the evidence, and submits that because of the absence of this evidence, which was ruled out at the request of counsel appearing for the accused, the verdict cannot stand.

We questioned Mr. Egan's right to make any such submission, but decided to reserve our decision on the point and to allow him to develop his argument as to whether or not such evidence was essential. We are now of opinion that we cannot entertain an appeal based on this submission. The position is, in effect, the same as if Mr. MacBride had asked the trial Judge to direct the jury to enter a verdict of "Not guilty" because of the...