The State v Treanor and Others

• Jurisdiction: Ireland
• Judgment Date: 02 September 1924
• Date: 02 September 1924
• Court: Court of Criminal Appeal (Irish Free State)

The State v. Treanor and Others.

THE STATE

and

THOMAS TREANOR

THE STATE

and

CHARLES FLOOD

THE STATE

and

BERNARD TREANOR

and

THE STATE

and

PATRICK KELLY (1)

Court of Crim. App. (I. F. S.)

Criminal Appeals - Admission of evidence - Confession induced by threats - Confession not made to the person using threats - Inadmissibility of confession - Duty of Judge when evidence tendered in order to prove inadmissibility - Discharge of jury or setting aside their verdict - Common design by several persons to rob banks - No direct evidence of common design - Evidence sufficient to sustain conviction for robbery - Constructive robbery of one bank by assisting at the robbery of another - Insufficiency of Judge's summing-up - No advice to jury as to connecting offence proved with different crime charged in indictment - Setting aside conviction.

A confession made to any person under the influence of a promise or threat held out by a person in authority, calculated to induce the confession, is inadmissible, unless it be clearly proved to the satisfaction of the Judge (whose duty it is to decide the question), that the promise or threat did not operate upon the mind of the accused, and that the confession was voluntary notwithstanding, and that the accused was not influenced to make it by the previous promise or threat.

If evidence be tendered to prove the inadmissibility of evidence prima facie admissible, it is the duty of the Judge to receive it, and to decide the question of admissibility, before the evidence is given in the hearing of the jury.

Judgment of Parke B. in Bartlett v. Smith, 11 M. & W. 483, approved, and judgment of Lord Tenterden C.J. in Jones v. Fort, Moo. & M. 196, held to have been over-ruled by Boyle v. Wiseman, 11 Ex. 360.

If, upon taking evidence to prove the inadmissibility of a statement already admitted subject to disallowance at a later stage, its inadmissibility wore clearly established, the Judge would be bound to discharge the jury, or their verdict—if it might conceivably have been influenced by the illegal evidence—could not be permitted to stand.

The four appellants were convicted of having, while armed, made an assault upon officials of the H. Bank at Monaghan, and of having feloniously stolen a sum of money, the property of the bank, and all of them were sentenced to terms of penal servitude. The trial Judge having refused a certificate, in the case of each appellant, that the case was a fit case for appeal, each of them appealed to the Court of Criminal Appeal under sect. 31 of the Courts of Justice Act, 1924 (No. 10 of 1924), on the ground that certain confessions alleged to have been made by two of the appellants were wrongly admitted, and also on the ground of misdirection by the trial Judge in charging the jury. The four appeals were heard together.

1. The State v. Bernard Treanor:—In this case evidence was given of a confession alleged to have been made by the appellant to one person in consequence of threats made by another person in authority, and the trial Judge was of opinion that threats made except by or in the presence of the person to whom the confession was made were irrelevant to the question of the admissibility of the confession The Court of Criminal Appeal held this opinion to be erroneous. And, as the Court was not satisfied that no threats were made to the appellant, or that, if made, the effect of them had disappeared before the interview took place at which the appellant made the confession, the Court held that the evidence of the confession should not have been admitted. And, as it was not clear that the jury must have convicted the appellant upon the evidence apart from his confession, the verdict was set aside and the appeal allowed.

2. The State v. Thomas Treanor:—In this case an alleged confession by the appellant was elicited by his counsel in the cross-examination of a witness. It was not volunteered by the witness or obtruded in an irrelevant manner, but was elicited in an attempt to prove that no statement had been made, and the Court of Criminal Appeal held that it was properly admitted, and the appeal was, therefore, dismissed.

3. The State v. Patrick Kelly:—In this case it was contended for the prosecution that the evidence established a common design by all the appellants, with other persons, to raid all the banks in Monaghan, and to make an attack upon the Court House (where the military were) to enable the raid on the H. Bank to be carried out without interference, and that, accordingly, proof that the appellant was engaged, either in attacking the Court House or in raiding some other bank would sustain an indictment against him for robbing the H. Bank. It was also contended that the possession by the appellant of notes recently stolen from another bank (the P. Bank) was evidence upon which he might have been convicted of robbing that bank, and so of having been party to the alleged design of robbing all banks including that charged in the indictment (the H. Bank), and that, therefore, he was properly convicted of stealing the money from the H. Bank. No direct evidence of the common design was offered by the prosecution, but it was left to be inferred from vague references in the evidence. The summing-up of the trial Judge contained no advice to the jury upon the necessity for connecting the offence proved against, the appellant with the different crime charged in the indictment:

The Court of Criminal Appeal held that, as the prosecution sought to establish, not a conspiracy to rob several banks, but a constructive robbery of one by assisting in the robbery of another, the grounds upon which the appellant might have been convicted of the charge laid in the indictment should have been very carefully expounded to the jury, and they should have been warned that if they considered that the appellant (who was not actually identified as having been present at any bank or with the raiding party, and upon whom no arms were seen or found) was in fact only a receiver of stolen property without previous participation in the robbery, they should not convict him even of stealing from the P. Bank, still less of the constructive robbery of the H. Bank. As the Court were of opinion that the jury did not receive such instructions as would enable them to appreciate the bearing of the evidence upon the charge, the conviction of the appellant was set aside and the appeal allowed.

4. The State v. Charles Flood:—In this case the Court of Criminal Appeal held there was no ground for interfering with the verdict, and the appeal was dismissed.

It is not the duty of the Court of Criminal Appeal to scrutinize the summing-up of the trial Judge for trifling misstatements in the evidence.

Each of the appellants, as one ground of appeal, alleged misdirection on the part of the trial Judge in telling the jury in the course of his charge that all the appellants disappeared after the raid. The Court of Criminal Appeal, upon a consideration of the summing-up and the evidence upon which it was based, held that, on this point, there was no misdirection which would entitle the appellants, or any one of them, to have the convictions set aside.

Criminal Appeals.

Appeals by the defendants under s. 31 (ii) of the Courts of Justice Act, 1924 (No. 10 of 1924) (Irish Free State) (1), from

an order of Mr. Justice O'Shaughnessy sitting in the Central Criminal Court, Dublin, refusing them certificates that their cases were fit cases for appeal to the Court of Criminal Appeal. The four appeals were heard together.

Thomas Treanor, Charles Flood, Bernard Treanor, Patrick Kelly, Francis Treanor, and Hubert John M'Cann were on the 29th July, 1924, at the Central Criminal Court, Dublin, put forward at the prosecution of the State on several indictments,

(including one upon which counsel for the State elected to proceed) of having on the 18th August, 1922, while armed with certain offensive weapons, namely, revolvers, shot guns, pistols, and rifles, made an assault upon Edward J. Smyth and Louis Torrens, and put each of them in fear and danger of his life, and of having feloniously stolen the sum of £450 in money, the property of the Hibernian Bank. The trial lasted for three days, and resulted in the acquittal of Francis Treanor and Hubert John M'Cann, and the conviction of the other four defendants. Bernard and Thomas Treanor, and Charles Flood were each sentenced to five years' and Patrick Kelly to seven years' penal servitude. The evidence at the trial was reported by an official stenographer in accordance with the requirements of sect. 33 of the Courts of Justice Act, 1924 (1), and counsel for the prisoners applied to the Court of Criminal Appeal for a copy of the transcript of the shorthandwriter's note at the expense of the State. This application was grounded on the poverty of the prisoners, but was refused by the Court. Transcripts of portions of the evidence were thereupon extracted on behalf of the prisoners, and the following notices were served on the Registrar of the Court of Criminal Appeal:—

Courts of Justice Act, 1924. (Criminal Appeals.)

Notice of Application for leave to appeal under section 31 of the Act (2).

To the Registrar of the Court of Criminal Appeal.

I, having been convicted of the offence of having, together with other persons, being armed with certain offensive weapons, made an assault upon Edward J. Smyth and Louis Torrens and put each of them in fear and danger of his life, and of having a sum of £450 in money, the property of the Hibernian Bank, Limited, then being in the lawful custody and possession of the said Edward J. Smyth and Louis Torrens, feloniously stolen, taken, and carried away, and, thereupon sentenced to five years' penal servitude, and, having applied to the Judge who tried me for a Certificate that my case was a fit case for appeal, and having been refused such Certificate, and being now a prisoner in Mountjoy Gaol, and...