The Gazette 1977

GAZT

I H

JANUARY/FEBRUARY IV77

I

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 in -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 r e 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 0u 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 l uentl y contended that his mmatc conviction was perverse, by hot being supported by sufficient cv 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-