The Gazette 1977

GAZT

JANUARY/FEBRUARY IV77

Prosecution of showing that there had

been some inadvertence in the failure

observe the lawful period of

detention, had not been discharged.

Although Inspector Butler must have

oeen aware of the lawful period of

detention, he deliberately regarded

the taking and completion of the

statement, as being of more

importance than setting the defendant

tree. The Court cannot regard the

completion of the statement as a

Justification 01 excuse for the

continued detention of the defendant,

this Court considers that for this

reason the statement ought to have

been excluded. The Special Criminal

Court appears to have sought an

element of wilfulness or

mala fides

-he conduct of the Garda officer, and,

not finding such, that the deprivation

constitutional rights was not

deliberate or conscious. What was

done by the officer was done without

regard to the liberty guaranteed to the

defendant by Article 40 of the

Constitution, and the State's

obligation to defend and vindicate

that right under that Article,and this

cannot be ignored by this Court. As

Jungsmill Moore J. had stated in

ople v. O'Brien (1965)I.R. 142, "I t

«I much better that a guilty individual

should escape punishment than that a

Court of Justice should put aside a

yital fundamental principle of the law

•n order to secure his conviction".

Accordingly Madden's statement

ght not to be admitted in evidence,

^ d his conviction will be set aside.

Bavid O'Donnell

in this case the Special Criminal

ourt refused an application on

fhalf of the accused to discharge

hun at the close of the prosecution. It

ui .

Consec

uentl

y contended that his

mmatc conviction was perverse, by

hot being supported by sufficient

idence.

As previously stated, on the

morning after the murder, there were

°und in the white Cortina car some

Parking discs, which contained seven

hnger prints of Mr. O'Donnell. While

m custodv, O'Donnell was asked

^nether he ever used parking discs.

first

h e

denied using ihem, but

w he said he gave discs to another

!(£h at the end of March, 1975.

hesc fois- denials were made to

hspector Cour tney, before

- "onnel! was told that his

fin Sprints had been found on the

discs. When told of this, he at first

offered no explanation.

The question to be determined was

whether that cvidence, coupled with

the general evidence as to the

commission of the crime, was

evidence beyond a reasonable doubt

that the parking by O'Donnell of the

white Cortina car on the morning of

the murder was part of a preparation

of what he knew to be a crime of

violence, or whether such evidence

was inconsistent with any credible

explanation other than the guilt of the

accused. O'Donnell did not give

evidence, nor were witnesses called

on his behalf.

For the carrying out of a murder

of this type, it was established to the

satisfaction of the Special Criminal

Court as an inference which they

were entitled to draw that a necessary

pan of the preparation for that

murder would be the availability of

the white Cortina car in Cork during

the day on 10th June, and that

consequently it should be so parked

as not to attract attention by the

Garda. It follows that the parking of

the white Cortina in Cork City on the

morning of 10th June was a

necessary and vital part of the

preparation of this crime. Oncc the

Court reached these conclusions,

then the denials made by O'Donnell

to Inspector Courtney as to the use

of the parking discs were false. Once

the Special Criminal Court reached

the c o n c l u s i on that in the

circumstances the conviction of

O'Donnell was proper, this Court has

no alternative but to dismiss his

application for leave to appeal.

Bernard Lynch

In this case, it is contended that

the Special Criminal Court erred in

law (1) in holding that evidence

tending to establish an association

between the accused with the larceny

and subsequent control of a motor

car was capable of establishing

Lynch's implication in the murder of

Laurence White, and (2) in refusing

to enter a verdict of acquittal of

Lynch at the conclusion of the

prosecution.

On being questioned by Garda

Carey, the accused admitted that he

was in Mary Street, Cork, with

Madden on the morning of 10th June,

and that he got out of Madden's car

to speak to O'Donneil. On being told

that the Garda suspected that a

stolen car had been parked in Mary

Street on that occasion, the accused

invited the Garda to charge him with

the theft. On being subsequently

interviewed as to his organisation

being involved in murder, Lynch

denied that he was personally

involved. This Court is satisfied on

the evidence (1) that Lynch was

aware of the existence of the stolen

car on the morning of 10th June, (2)

that Lynch was anxious to

communicate with O'Donnell that

morning, and that O'Donncll's finger

prints were found on objects in the

stolen white Cortina car. This Court

considers that there is no admissible

evidence against Lynch of any

activity in the preparation or

commission of a crime of violence.

Un l e s s t he re wa s

a c t i ve

participation, mere proof of

knowledge that such a crime was

about to be committed would not

amount to murder. The conviction of

Lynch must therefore be set aside.

Cornelius Finbarr Doyle

The grounds of appeal in this case

were twofold:

(1) The Special Criminal Court er-

red in law in ruling as admissible in

evidence a statement in writing pur-

porting to be made by Doyle on 22

June, 1975, to Inspector Butler and

Sergeant Canavan. It was contended

that this statement was obtained by

violence and by threats of violence,

and under circumstances of oppres-

sion. Evidence was given by the

prosecution concerning the detention

of Doyle for 1 j days prior to the tak-

ing of the statement in Limerick

Garda Station. This evidence oc-

cupied 3j days of the trial, and the

conflicting evidence of Doyle oc-

cupied 1} days. At the conclusion of

this evidence, the Special Criminal

Court admitted the statement. The

Court found that this written state-

ment. and certain oral statements

which preceded and succeeded it

were made by the accused after due

and proper caution had been ad-

ministered, and that they were made

voluntarily, and net as a result of

threats of physical violence. The

Court also ruled that allegations

made by the accused of ill-treatment,

assault, deprivation of food, and

cross examination by Garda Officers

were all untrue, in short the Court

expressed the view that no liability

could be placed on Doyle's evidence.

Having reviewed the cvidence. this

Court is satisfied that there was am-