The Gazette 1977

JANUARY/F IZ BRUARY 1977

GAZLTN - :

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 1

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. v. 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

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