110 / 264
c o r r e c t. Though g i ven the
opportunity to cross-examine the
witnesses, counsel for the defence did
not do so. It follows that the
requirements of S.41 (4) of the 1939
Act, in relation to the practice and
procedure to be adopted by the
Special
Criminal
Court
were
sufficiently complied with in these
circumstances.
In any event, the statements made
by the accused were precisely
confirmed subsequently by Dr.
Herrema himself in relating the
kidnapping. In his third statement,
McGowan admitted that he drove
with Gardai to Kildangan, and
showed them the house in which Dr.
Herrema was held captive. It was as
a direct result of this that Dr.
Herrema was eventually located at
Monasterevan. This ground fails.
The second ground is that two
statements made by McGowan on
20th October, 1975, were made after
he had been subjected to prolonged
and continuous interrogation, and
consequently the statements were not
voluntary. McGowan was in fact
arrested at 9.00 a.m. on 18th
October, and brought to Portlaoise
Garda Station, and there questioned
with breaks from noon on 18th
October, to 1.00 a.m. on Sunday,
19th October. After some sleep, his
questioning was resumed at 11.00
a.m. on Sunday, 19th October, and
continued through most of Sunday to
Monday morning, save for a short
period. At 9.15 p.m on Sunday he
made an exculpatory statement in
regard to his movements.
At 9.00 a.m. on Monday, 20th
October, he was allowed to leave, but
requested a lift to Tullamore from the
Gardai. Two Detective-Inspectors,
who had interrogated him, then drove
him to Tu l l amo r e.
A f t er
Mountmellick, McGowan stated he
would tell the truth, and that he had
in fact kept watch on the movements
of Dr. Herrema in Limerick for
Gallagher. As a result of this
confession, McGowan was taken into
custody under S.30 of the Offences
against the State Act, 1939, at 11.15
a.m. on Monday, 20th October.
McGowan remained in a cell in
Tullamore Garda Station until 5.30
p.m. when he made a full confession
admitting his part in the kidnapping
of Dr. Herrema. Counsel for the
defence did not complain that the
manner in which the Gardai had
taken these s tat ements was
oppressive, but merely that the length
of time during which McGowan had
been interrogated was oppressive.
The statement which McGowan
made in the car on the way to Tulla-
more was not induced by oppressive
means. Accordingly there was ample
evidence that justified the Special
Criminal Court in finding all these
statements voluntary and properly
admissible. It is then contended that,
as both accused had been arrested
under S.30 of the Offences against
the State Act, 1939, and made
statements while detained for the 48
hours, permitted by that Section, the
statements should not be admitted in
evidence. Under S.30, a Garda may
demand of the person detained his
name and address, and refusal to
provide same is a penalty. A Garda
may also, under S.52 of that Act,
demand a full account of accused's
movements during a specified period
under penalty. Counsel for the
accused submitted that, as the
accused was bound under penalty to
supply the requested account of his
movements, any statement made
thereafter was not voluntary, and
should not be admitted. At no time
during the questioning of the accused
was S.52 invoked, and the accused
made no statement under a threat of
penalty. On the contrary, the accused
were continually cautioned that they
were not obliged to make a
statement. Statement made by 4th
Edition of Cross on Evidence at
p.248 approved "If information has
been lawfully obtained pursuant to
statutory provisions, and there is no
express restriction on the use which
can be made of the information, the
person giving it cannot object to its
being used in evidence against him,
either on the ground that such use
would infringe his privilege against
self-incrimination, or because the
evidence would not have been given
voluntarily."
The application for leave to appeal
is accordingly dismissed.
The People (DJ*J>.)
v.
Walsh and
McGowan
— Court of Criminal
Appeal (Griffin J., Murnaghan J. and
McMahon J.) per Griffin J. —
unreported — 31st January, 1977.
WILL - SUCCESSION ACT
Extrinsic evidence under Succession
Act, 1965, admitted to show that
words in will "my nephew Denis"
really referred to "my nephew
William".
A testator devised, after his wife's
death, his farm in Co. Laois to his
nephew Denis Bennett for his own
use and benefit absolutely. The
testator never had any nephew called
Denis, but he had nephews called
James, William, Patrick, Peter and
Martin, and he also had a brother
called Denis. It is therefore contended
that the provision for the nephew
Denis is void for uncertainty and
therefore that the property should fall
into residue. The deceased died in
June, 1969, and probate of his will
was granted to the plaintiff brother,
Denis, on 12th November, 1973.
William alleges that he should
be
a l l owed
to
a ddu ce
evidence to prove that the test-
ator intended him to have the
farm. Under S.90 of the Succession
Act, 1965, such evidence will be
admissible. All the other nephews, as
well as deceased's brother, Denis,
support William's claim. The
evidence establishes that from 1951
William resided at testator's farm,
and worked this farm on behalf of the
testator, without receiving any
remuneration. In 1955, William went
to England, and returned to Ireland
to his father's farm, which is about 7
miles from testator's farm, in 1960.
From that time on, he has been living
with his father, but, at his uncle's
request, from time to time he would
till the uncle's land and sell his stock
for which he was unremunerated. The
testator informed his brother, Peter,
who was William's father, that the
lands would go to one or more of
Peter's sons. The lands were the
Bennett family lands, and the whole
family believed that the lands would
go to William after the death of the
Testator as having been impliedly
selected by him. The will was drawn
by the family solicitor, but no
explanation can be furnished to show
how the phrase "my nephew Denis
Bennett" was inserted. It was
contended on behalf of the plaintiff
that, prior to the Succession Act,
1965, extrinsic evidence was
f r equen t ly admi t t ed in the
construction of ambiguous phrases.
But S.90 of the Succession Act is
wider than that, in that it places no
limitation on the purpose for which
extrinsic evidence may be admitted.
It states: "Extrinsic evidence shall be
admissible to show the intention of
the testator and to assist in the
construction of, or to explain any
contradiction in, the will." S.90 does
direct the Courts in a proper instance
to look outside the will altogether, in