The Gazette 1977

GAZLTN

JANUARY/F

BRUARY 1977

RECENT IRISH CASES

CRIMINAL LAW

Man machine gunned to death in

Cork. Four accused of murder. Two

accused acquitted for lack of

evidence to commit crime. Two other

accused duly convicted of murder.

The four defendants were charged

with the murder of Laurence White

on 10th June, 1975 on the basis that

each was an accessory, and after a

long trial, were duly convicted by the

Special Criminal Court, and

sentenced to life imprisonment.

While the four defendants have

been tried together and prosecuted

jointly, the cases against each of

them must be considered separately,

as if each defendant had in fact been

tried separately. The following facts

appear to be incontrovertible, and

admissible against all defendants:-

Laurence White lived with his

father, Laurence White senior, at

Orrery Road, Cork. He had been on

a visit to his sister, and subsequently

had a drink in a public house. He

then walked to Wolfe Tone Street

with Hogan, with whom he had spent

most of the day. At about midnight,

while proceeding on his way home, in

Mount Eden Road, he was machine

gunned to death. The assailants used

a White Cortina car which was

parked in that road about 11.45 p.m.

As soon as White appeared on

Mount Eden Road, one of the

occupants of this car carrying a

machine gun met him on the road,

and shot him to death. The man then

re-entered the Cortina, which was

driven quickly away to Upper Fair

Hill. From there, the occupants made

their escape in a Volkswagen truck.

The Cortina was found by the Gardai

at Upper Fair Hill with false number

plates. The car in fact was the

property of a farmer in Kilfinane, Co.

Limerick and had been stolen from

there on 6th June; its roof-rack was

subsequently removed. The parking

system in Cork City is controlled by

discs, and a parking disc book, as

well as used discs, was found by the

Gardai.

The Function of the Court of

Criminal Appeal

Before considering the evidence

against each separate defendant, it is

necessary to consider the function of

the Court of Criminal Appeal as an

appellate Court to the Special

Criminal Court, which is provided by

S.44 of the Offences against the State

Act 1939. S.12 of the Courts

(Supplemental Provisions) Act 1961

now provides that the Court of

Criminal Appeal shall be a Superior

Court of Record and vests in it all

jurisdiction which was vested in the

former Court of Criminal Appeal

before the operative date. Holmes L.

J. in

Aberdeen Glenline Steamship

Co.

Macken

(1899) 2 I.R. 18,

made the following statement of

principle which is applicable here:

"When a Judge after trying a case

upon viva voce evidence comes to a

conclusion regarding a specific and

definite matter of fact, his finding

ought not to be reversed by a Court

that has not the same opportunity of

seeing and hearing the witnesses

unless it is so clearly against the

weight of the testimony as to amount

to a manifest defeat of justice. The

same rule does not apply, at least in

the same degree, where the

conclusion is an inference of fact. It

often happens, as in the present

instance, that the decisive finding is a

deduction from facts hardly disputed

or easily ascertained. In such a case

the appellate tribunal is in as good

a position for arriving at a correct

conclusion as the Judge appealed

from, and it would be un undue

restriction of the functions of the

former if it were to hold itself bound

by what has been found by the

latter". Thus the function of this

Court is to consider the conduct of

the trial as disclosed in the

stenographer's report to determine

whether or not the trial was

satisfactory as being conducted in a

constitutional manner with fairness to

review any rulings on law or

evidence, and to consider whether

any inferences of fact drawn by the

Court of trial can properly be

supported by evidence. Otherwise all

the findings of fact can be adopted

subject to the admonitions in the

Aberdeen Glenline case.

The killing of Laurence White is

described in the evidence, and

consequently the

mens rea

necessary

to prosecute the charge of murder

against each of the accused has been

established. In order to sustain a

conviction of any one of the accused

as an accessory before the fact for

aiding and abetting in the

commission of this murder, the

prosecution must prove an unlawful

killing under S.4 (1) of the Criminal

Justice Act, 1964. Undoubtedly the

trial Court had correctly stated the

principles applicable to the onus of

proof in this case.

Bartholomew Madden

The case against Madden rests on

a statement made by him while in

custody on 21st June, 1975. The

statement was made after caution,

and started at 6.40 a.m. It was

dictated by the defendant, and was

taken down in writing by Inspector

Butler in the presence of Sergeants

Canavan and Brennan. The dictating,

taking down and reading over of the

statement lasted from 6.40 a.m. until

9.00 a.m. The statement contains

certain admissions which were relied

on by the State as evidence of the

guilt of the defendant as an accessory

of the murder. Counsel for accused

objected to the admission of the

statement, on the ground that it was

induced by oppression, prolonged

questioning and abuse by the Gardai.

It was further contended that, when

the statement was taken, the

defendant was unlawfully detained by

the Gardai.

Madden had been arrested at 7.15

а.m. on 19th June, 1975, under S.30

of the Offences against the State Act,

1939. Under S.30 the maximum

period of lawful detention or custody

is 48 hours, and accordingly expired

at 7.15 a.m. on 21st June, 1975.

After this time Madden was entitled

to be set free unless he was charged

with some offence. The Special

Criminal Court had ruled that

Madden's statement was voluntary,

and should be admitted in evidence!

the Court further ruled that there had

been no deliberate and conscious

v i o l a t i on of the a c c u s e d 's

constitutional right. The Court of

Criminal Appeal held that the trial

Court, having heard the relevant

evidence, was entitled to reach the

conclusion that the statement was

voluntary.

As regards the statement,

Inspector Butler must have been

aware that by starting to take it at

б.40 a.m. it was unlikely to be

completed by 7.15 a.m. It was only

some time after 10.00 a.m. that

morning that Madden was told he

was free to go home. No reasonable

explanation was given by Inspector

Butler as to why he proceeded with

the taking of the evidence at this late

hour. It was held that in such

circumstances the onus on the