The Gazette 1980

GAZETTE

JULY-AUGUST

1980

being conducted in a con-

stitutional manner with fair-

ness, to review as far as may

be required any rulings on

matters of law, to review so

far as may be necessary the

application of the rules of

evidence as applied in the

trial, and to consider whether

any inferences of fact drawn

by the court trial can properly

be supported by the evidence;

but otherwise to adopt all

findings of fact, subject to the

admonitions in the passage

cited above".

(2) That the Court was satisfied that

all the findings made by the trial

judge could be and were suppor-

ted by the evidence adduced

before

him.

There

were,

therefore, no grounds for setting

aside the findings of fact by the

trial judge with regard to the

voluntary nature of the presence

of each of the appellants in the

Garda Station, or of the

voluntary

nature

the

statements made by them.

(3) However, that with regard to

each of the statements made by

the appellants each contained a

reference to a file or "a shatter

bar", which one of the appellants

described as being used for

shattering glass in robberies, and

which the other

appellant

described as an implement he

carried in his pocket for "doing

cars".

Counsel

for

both

appellants submitted that these

references should have been

edited out of the statements of

the appellants and that these

references had been admitted in

contravention of the Criminal

Justice (Evidence) Act 1924,

Section 1 (0 of which Act

provided that

"A person charged and called

as a witness in pursuance of

this Act shall not be asked,

and if asked shall not be

required to answer, any

question tending to show that

he has committed or been

convicted of or been charged

with any offence other than

that wherewith he is then

charged, or is of bad

character unless . . . " (Ex-

clusion to subsection not mat-

erial).

It was held by the Court that the

1924 Act dealt only with

questions which might be asked

or must be answered by an ac-

cused in giving evidence on his

own behalf, and did not apply to

the contents of his statement

made prior to the trial which was

tendered by the prosecution in

evidence;

but

that,

not-

withstanding this, following the

decision in

The People v. Kirwan

[1943], I.R. 279 this portion of

the statement should have been

excluded since it was prejudicial

and did not relate either to the

general onus of proof on the

prosecution, or to any defence

which might have been available

to either of the appellants. The

Court cited with approval what

O'Sullivan C.J., had quoted in

Kirwans Case

from the judgment

of Lord Herschell in

Makirt

A.G.for N.S.W.

[1894] AC 57

as follows:

"It is undoubtedly not com-

petent for the prosecution to

adduce evidence tending to

show that the accused has

been guilty of criminal acts

other than those covered by

the indictment, for the pur-

pose of leading to the

conclusion that the accused is

. a person likely from his

criminal conduct or character

to have committed the offence

for which he is being tried. On

the other hand the mere fact

that the evidence adduced

tends to show the commission

of other crimes does not

render it inadmissible if it be

relevant to an issue before the

jury and it may be so relevant

if it bears upon the question

whether the acts alleged were

designed or accidental or to

rebut a defence which would

otherwise be opened to the

accused".

Even though these references

were not edited out of the

statements at the trial, the

Court was of the opinion that

there was no possibility that any

conceivable

miscarriage

justice could have occurred.

Accordingly Section 5(1) (a) of

the Courts of Justice Acts 1928

was applied, and this ground of

appeal was not allowed.

(4) That in relation to an objection

which was also taken by Counsel

for one of the appellants

(W.T.M.) to the admission of an

oral statement allegedly made by

that appellant, which statement

was made after caution but no

note at that time was taken of

this by either of the Gardai who

alleged that it was made in their

presence; that the trial judge did

not err in principle in admitting

the statement notwithstanding

the breach of the Judges' Rules.

- (5) That the final ground of appeal

concerning the trial judge's

charge to the jury should also be

dismissed. The appellants' case

had been that they thought that

the deceased was dead when they

choked him. The trial judge had

discussed the presumption that a

person intended the natural con-

sequences of his acts. It was

argued on behalf of the

appellants that this concept had

no relevance in this case, since

the real question for deter-

mination by the jury was

whether the prosecution had

established that the two accused

did not believe that the deceased

was dead when the sheet was

pulled around his neck, choking

him — for if they believed that

the deceased was alive, they

must have intended death or

serious injury. The Court held

that the appellants were seeking

to draw a distinction between

belief and intention. The Court

stated (per Finlay P.)

"This Court is satisfied that

belief in the context of the

defence in this case is an

integral part of intention. An

assertion by a man that he

carried out what did in fact

constitute a fatal choking of

another who was then alive in

the belief that the other had

already died is nothing more

or less than a denial of the

intention to cause the natural

and probable consequence of

the act actually committed by

him namely the choking of a

live person".

Therefore, the Court

was

satisfied that the trial judge was

bound in law to discuss the

question of intention and the

rebuttable

presumption

concerning it.

Accordingly, the application