The Gazette 1980

GAZETTE

JULY-AUGUST

1980

being conducted in a con- stitutional manner with fair- ness, to review as far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the court trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passage cited above". (2) That the Court was satisfied that all the findings made by the trial judge could be and were suppor- ted by the evidence adduced before him. There were, therefore, no grounds for setting aside the findings of fact by the trial judge with regard to the voluntary nature of the presence of each of the appellants in the Garda Station, or of the voluntary nature of the statements made by them. (3) However, that with regard to each of the statements made by the appellants each contained a reference to a file or "a shatter bar", which one of the appellants described as being used for shattering glass in robberies, and which the other appellant described as an implement he carried in his pocket for "doing cars". Counsel for both appellants submitted that these references should have been edited out of the statements of the appellants and that these references had been admitted in contravention of the Criminal Justice (Evidence) Act 1924, Section 1 (0 of which Act provided that "A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character unless . . . " (Ex- clusion to subsection not mat- erial). It was held by the Court that the

1924 Act dealt only with questions which might be asked or must be answered by an ac- cused in giving evidence on his own behalf, and did not apply to the contents of his statement made prior to the trial which was tendered by the prosecution in evidence; but that, not- withstanding this, following the decision in The People v. Kirwan [1943], I.R. 279 this portion of the statement should have been excluded since it was prejudicial and did not relate either to the general onus of proof on the prosecution, or to any defence which might have been available to either of the appellants. The Court cited with approval what O'Sullivan C.J., had quoted in Kirwans Case from the judgment of Lord Herschell in Makirt v. A.G.for N.S.W. [1894] AC 57 as follows: "It is undoubtedly not com- petent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the pur- pose of leading to the conclusion that the accused is . a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury and it may be so relevant if it bears upon the question whether the acts alleged were designed or accidental or to rebut a defence which would otherwise be opened to the accused". Even though these references were not edited out of the statements at the trial, the Court was of the opinion that there was no possibility that any conceivable miscarriage of justice could have occurred. Accordingly Section 5(1) (a) of the Courts of Justice Acts 1928 was applied, and this ground of appeal was not allowed. (4) That in relation to an objection which was also taken by Counsel

for one of the appellants (W.T.M.) to the admission of an oral statement allegedly made by that appellant, which statement was made after caution but no note at that time was taken of this by either of the Gardai who alleged that it was made in their presence; that the trial judge did not err in principle in admitting the statement notwithstanding the breach of the Judges' Rules. - (5) That the final ground of appeal concerning the trial judge's charge to the jury should also be dismissed. The appellants' case had been that they thought that the deceased was dead when they choked him. The trial judge had discussed the presumption that a person intended the natural con- sequences of his acts. It was argued on behalf of the appellants that this concept had no relevance in this case, since the real question for deter- mination by the jury was whether the prosecution had established that the two accused did not believe that the deceased was dead when the sheet was pulled around his neck, choking him — for if they believed that the deceased was alive, they must have intended death or serious injury. The Court held that the appellants were seeking to draw a distinction between belief and intention. The Court stated (per Finlay P.) "This Court is satisfied that belief in the context of the defence in this case is an integral part of intention. An assertion by a man that he carried out what did in fact constitute a fatal choking of another who was then alive in the belief that the other had already died is nothing more or less than a denial of the intention to cause the natural and probable consequence of the act actually committed by him namely the choking of a live person". Therefore, the Court was satisfied that the trial judge was bound in law to discuss the question of intention and the rebuttable presumption concerning it. Accordingly, the application