Attempt

Cases

The Attorney General (at the prosecution of Superintendent M. Shaughnessy) v Christopher Ryan

Supreme Court.

24 May 1957

[1957] 91 I.L.T.R 164
Maguire C.J., Kingsmill Moore, Maguire JJ.

Case Stated.

This is a case stated by me, Patrick J. Roe, S.C., Circuit Court Judge for the South-Eastern Circuit sitting at Tipperary pursuant to section 16 of the Courts of Justice Act, 1947, for the opinion of the Supreme Court. The following facts were proved or admitted:—

1. On the 17th day of August, 1955, the appellant, Christopher Ryan (Cormack), appeared before District Justice Leo B. Skinner at Cashel District Court charged with having an the 12th day of June, 1955, at Garralie, Cashel, attempted to have unlawful carnal knowledge of one Mary Kavanagh, she being then a girl over the age of fifteen years and under the age of seventeen years contrary to section 2, sub-section 2 of the Criminal Law Amendment Act, 1935, and the said Leo B. Skinner being of opinion that the facts were proved and that they constituted a minor offence fit to be tried summarily and the said Christopher Ryan (Cormack) not objecting to be so tried on being informed of his right to be tried with a jury did convict the said Christopher Ryan (Cormack) of the said offence and ordered him to be imprisoned for a period of two months in Limerick Prison.
2. By notice of appeal as follows:
The District Court.
Notice of Appeal.
Title of Proceedings:
The Attorney General at the prosecution of Superintendent M. Shaughnessy, Tipperary, Complainant and Christopher Ryan (Cormack) Defendant.

TAKE NOTICE that the defendant hereby appeals to the Judge of the Circuit Court at the next sitting of the Circuit Court of Tipperary against the conviction made by the Justice of the District Court in the above-mentioned proceedings on the 17th day of August, 1955.
Signed: Christopher Ryan (Appellant).
To: Superintendent M. Shaughnessy of Garda Siochana Station, Tipperary, and to the said District Court Clerk at Cashel.
And service of which said Notice has been admitted and proved as having effected on the 22nd day of August, 1955, and admitted by the complainant as being in accordance with the rules of court the said Christopher Ryan (Cormack) came before me pursuant to the said Notice of Appeal and on bail.
3. On the said hearing before me as Circuit Judge at the Court House, Tipperary, on the 26th day of October, 1955, the following facts were proved or admitted:
(1) The said Christopher Ryan (Cormack) attempted to have unlawful carnal knowledge of Mary Kavanagh, a girl, at Garrane, Cashel, on the 12th day of June, 1955.
(2) The said Mary Kavanagh was born on the 14th day of April, 1940, and was on the 12th day of June, 1955, over the age of fifteen years and under the age of seventeen years.
(3) The said Mary Kavanagh fully consented to the attempted carnal knowledge by Christopher Ryan (Cormack) at Garrane, Cashel, on the 12th day of June, 1955.
(4) The said Christopher Ryan (Cormack) and the said Mary Kavanagh had not intermarried.
4. It was submitted by Mr. John Grattan Esmonde, counsel instructed by John J. Timoney, solicitor, of Tipperary, on behalf of the said Christopher Ryan (Cormack):—
(1) The offence charged had not been proved against the said Christopher Ryan (Cormack) in that there was no *165 evidence that the attempt to have carnal knowledge as aforesaid was unlawful.
(2) It having been proved that the said Mary Kavanagh fully consented to the attempted carnal knowledge of her by Christopher Ryan (Cormack) that the said attempted carnal knowledge had not been proved by the complainant as unlawful.
(3) It having been proved that the said Mary Kavanagh fully consented to the attempted carnal knowledge of her by Christopher Ryan (Cormack) that the said attempted carnal knowledge was not proved to be contrary to section 2, sub-section 2 of the Criminal Law Amendment Act, 1935.
(4) That the order of the District Justice be reversed and the charge and complaint be dismissed and the said Christopher Ryan (Cormack) acquitted. It was submitted by Mr. Sean McCurtain, State Solicitor, Clonmel, on behalf of the complainant that the offence charged had been proved.
5. The questions submitted for the opinion of the Supreme Court are:—
(1) Whether the said attempt by Christopher Ryan (Cormack) to have carnal knowledge of the said Mary Kavanagh constituted an attempt to have unlawful carnal knowledge of her contrary to and within the meaning of sub-section 2 of section 2 of the Criminal Law Amendment Act, 1935.
(2) Did the fact that Mary Kavanagh fully consented to the attempted carnal knowledge of her by Christopher Ryan (Cormack) take the said attempt by him outside the scope of the said last-named sub-section.
(3) Whether the said attempt by Christopher Ryan (Cormack) to have carnal knowledge of the said Mary Kavanagh was unlawful.
(4) Whether on the facts proved or admitted I can in law affirm the order of the District Justice?
6. The said Christopher Ryan (Cormack) is now on continuing bail to appear at the Circuit Court at the Court House, Tipperary, and I have adjourned the pronouncement of my order in the matter pending the determination of the foregoing questions.
Dated: 18th April, 1957.

(Signed): Patrick J. Roe.

 

Judgment of the Court of Criminal Appeal in The People (at the suit of the Attorney General) v. Harry McCormack delivered by Sullivan C.J.)

Sullivan C.J., delivering the judgment of the Court of Criminal Appeal said that the case came by way of appeal against *167 conviction and sentence imposed by the Circuit Judge of Wexford. The accused was charged upon indictment “that he on or about the 10th October, 1943, in the County of Wexford unlawfully took or caused to be taken Mary J. Duggan an unmarried girl then under the age of eighteen years out of the possession and against the will of her mother with an intent unlawfully to have carnal knowledge of the said Mary J. Duggan contrary to section 7 of the Criminal Law Amendment Act, 1885, as amended by section 20 of the Criminal Law Amendment Act, 1935.”

The Criminal Law Amendment Act, 1885, section 7 as amended by section 20 of the Criminal Law Amendment Act, 1935, provides:—“Any person who, with intent that any unmarried girl under the age of eighteen years should be unlawfully and carnally known by any man whether such carnal knowledge is intended to be with any particular man or generally, takes or causes to be taken such girl out of the possession and against the will of her father or mother, or any person having the lawful care of or charge of her, shall be guilty of a misdemeanour and being convicted thereof shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years with or without hard labour.”

It was argued on behalf of the appellant that at the close of the prosecution’s case there was not sufficient evidence to establish that Mary Duggan was taken out of the possession of her mother by the appellant, or that she was taken with intent that she be carnally known or that Mary Duggan when so taken was unmarried. It was also submitted that the trial was unsatisfactory.

It was established in evidence at the trial that at the time these events took place Mary Duggan was seventeen years of age. The accused, who had been married for ten years but had separated from his wife shortly after their marriage, was aged thirty-nine. The acquaintance of Mary Duggan and the accused took place in the summer of 1943. After a short while they were on very intimate terms. Her mother took a strong dislike to this relationship. This brought about a lot of disturbance in the home, which came to a head in October. Mary Duggan’s mother had made plans to send her to the Good Shepherd Convent, and upon hearing this she told the accused that she intended to run away from home. The accused suggested that they should go away together and see if they could get married. Mary Duggan agreed to this. They arranged to meet the next night at Ferrycarrig Bridge, which was not far distant from her home. The accused met Mary Duggan as arranged and took her by car and drove to Waterford. They stayed that night in the town, occupying the same room and bed. On the following day they went to Youghal, where they again stayed in the same bedroom for a number of nights. Later they separated and Mary Duggan returned home. A number of days afterwards a member of the Civic Guards interviewed the accused who made a statement. He said that he had connection with Mary Duggan while away with her, but in his evidence he said that he never had full intercourse with her. This was corroborated by the evidence of Dr. Pierse, who examined Mary Duggan and found her virgo intacta. The accused said he went to Waterford to try and get his previous marriage annulled and failing that he tried to arrange to marry Mary Duggan in a Protestant church, without success.

The Court is satisfied, having considered the entire evidence, that the jury might legitimately find that Mary Duggan left her mother’s house in October as a result of an agreement with the accused, and that if she did so she was taken by the accused out of the possession and against the will of her mother within the meaning of the section. Further, the Court is satisfied that there was ample evidence upon which the jury could bring in a finding that Mary Duggan was taken by the accused with the intention that she might be unlawfully and carnally known by him. If the jury accepted the evidence that the accused knew he could not marry Mary Duggan and had told her that if they could not get married they could live together and had promised her that if she left her mother he would not let her down, and if they believed that when the accused took her out of the possession of her mother he intended to cohabit with her if they could not get married, then that would be sufficient evidence to constitute the intent mentioned in the section.

It had been submitted that the intent to have unlawful carnal knowledge contemplated by the section is necessarily an intent to rape. It is quite clear from the provisions of section 9 of the Criminal Justice Administration Act, 1885, that the words “unlawfully and carnally know” indicate an offence which is not necessarily rape, and the Court unhesitatingly rejects that submission.

 

The People (Attorney General v. Thornton

[1952] IR 92

The judgment of the Court was delivered by Haugh J.

HAUGH J. :
The applicant was tried at the Circuit Court at Galway on an indictment containing seven counts. Of these, only counts 1, 2, 3 and 5, were allowed to go to the jury.
In substance he was charged with having unlawful carnal knowledge of one, Mary McDonagh, on a number of occasions, both when she was under, and over, the age of fifteen years. In addition, on the fifth count, he was charged that he did unlawfully attempt to procure a poison or other noxious thing called ergot, knowing that it was intended to be unlawfully used or employed to procure the miscarriage of the said Mary McDonagh.
There was sufficient evidence to support a conviction on the first four counts, if the jury was prepared to act on it. After a long and patient hearing they elected to acquit the appellant on these, the more serious charges, and to convict him on the charge of attempting to procure the ergot.
In order that a jury should be in a position to deal with a charge of this nature, they require to know something more about the essentials necessary to support a conviction thereon than that which is to be found in the usual directions of a general nature that are necessarily given to all juries in all criminal trials.
They must be informed, and must understand, that before an accused person can be convicted of an attempt to commit a crime, a mere desire to commit same, or a desire followed by an intention to do so, is not sufficient to prove an attempt.
They should know from a specific direction to that effect, that an attempt consists of an act done by the accused with a specific intent to commit a particular crime; that it must go beyond mere preparation, and must be a direct movement towards the commission after the preparations have been made; that some such act is required, and if it only remotely leads to the commission of the offence and is not immediately connected therewith, it cannot be considered as an attempt to commit an offence.
The same instructions could be stated in the words used in R. v. Woods (1); R. v. Robinson (2); R. v. Landow (3); R. v. Taylor (4); R. v. Eagleton (5); Attorney-General v.Bradfield-England (unreported).
However, in this particular case the learned trial Judge gave no such special direction or any direction confined to the fifth count. Having regard to the length of the trial, and to the fact that the major charges were concerned with unlawful carnal knowledge, that the bulk of the evidence related to these charges, and that counsel for the accused made no objection in reference to this omission, it is easy to appreciate the reason why such direction was overlooked. As it is possible that the jury might have acted otherwise had they received this special direction, this may be a good ground for quashing the conviction and ordering a new trial. Alternatively, such omission might well have not affected the result, and I say so for this reason. For some time Mr. Murnaghan seemed to ground his argument on the basis that his client was charged with an attempt to procure and administer the ergot to Mary McDonagh. On being reminded of the real nature of the charge, he agreed that if his client had in fact asked for ergot from Dr. O’Beirne and had got it,there and then, from the doctor, such obtainment would have been the result of a successful attempt to obtain, and the full offence would have been committed before he left the doctor’s surgery. Mr. Murnaghan was then asked if the full offence had been completed by the delivery of the ergot, was not a request by him for ergot an attempt to commit this offence and he frankly and properly admitted it was.
In the light of this answer, direction or no direction, the jury might well have confined their inquiries to the one issuedid Dr. O’Beirne’s evidence about this conversation justify them in holding that the accused had, beyond all reasonable doubt, asked the doctor for ergotand might be untroubled by any questions as to whether this was an act showing intention only or a mere act of preparation, or by any question as regards the remoteness or nearness of the act to the offence.
However, the application for leave to appeal seeks more than a new trial. At the trial, and before this Court, it was argued that there was no evidence tendered to support a conviction on this count, and the trial Judge should have granted the direction asked for. If Mr. Murnaghan is correct in this submission it is obvious no question of a new trial can arise. Accordingly, this is the point this Court must first determine.
It is not necessary to go into any of the general evidence, beyond saying that the transcript of the evidence made deplorable reading as regards the conduct of the accused and the girl. There was abundant evidence to satisfy any jury that on different occasions the appellant showed a desire that the child should not be born alive. Indeed, on the occasion of his second visit to the doctor, there is clear evidence to show that he attempted to obtain an unspecified poison or noxious thing for the purpose of procuring the miscarriage of Mary McDonagh. The doctor’s evidence on this point is clear, emphatic, and unambiguous. However, as no charge has been laid in connection with this particular request, we are not expressly concerned with this piece of evidence.
The conversation relied upon by the prosecution is alleged to have taken place on the occasion of the appellant’s third and last visit to Dr. O’Beirne’s surgery, and the evidence on the matter is indeed short. It may be briefly stated as follows:On the occasion of his first visit the accused asked could anything be done about her case, and the doctor said he could not interfere in any way. The accused called again on the 2nd December, 1949, and during the conversation he asked the doctor if he would give him a prescription to interfere with the pregnancy, and the doctor replied that no self-respecting Catholic doctor would have anything to do with that business, and that he could not give him a prescription. I have already made reference to that specific request being refused. After this conversation the doctor prescribed an iron tonic for the patient, and told the accused that this would de a tonic good for her condition, having regard to her run-down state and appearance. Up to this point no offences in relation to poisonous or noxious drugs are alleged to have been committed by the accused. About a week later the accused called for the third time, and opened the conversation by saying that the tablets were no good. The doctor replied saying that they were only a tonic, and then the conversation as regards the tablets concluded. It must be realised that up to this moment of time, Mr. Casey agrees, that, other than these charges relating to carnal knowledge, no other offence punishable in law is alleged to have been committed by the appellant. It is submitted that because of something the accused said immediately following the conversation about the tablets, and within a few seconds thereafter, he began and completed the offence set out in the fifth count, in respect of which he has been convicted, and because of which he is now in prison.
It is obviously imperative that this Court should closely examine the evidence that exists to show that he had by this remark committed an offence of a criminal nature. I return to the evidence, and it is this. The doctor was asked, “What happened after that?” and his answer is recorded as follows:”He mentioned, wasn’t there some drug named ergot,” and the doctor replied that no doctor gives that under the circumstances in question”that no self-respecting doctor would give such a drug under the circumstances.” Now, that is the whole of the evidence, given on the direct, to show that the accused, up to then innocent of any specific offence in relation to drugs, had, because of such statement, been shown to have made an express request for the delivery of ergot to him, the accused. For reasons that are obvious, Mr. Murnaghan left that matter severely alone in his detailed cross-examination of the doctor. At the close of his whole examination it is plain that this piece of evidence, being so vitally connected with the charge, needed clarification, and the learned trial Judge, realising this, and despite the very understandable objection of counsel for the defence, very properly said that this conversation required to be cleared up. He asked the doctor to tell the actual words that passed between himself and the accused as regards the ergot, so the witness again said:”He mentioned wasn’t there something called ergot,”and the doctor added that the accused was not sure of the word itself, and further said that he replied that there was such a substance, but that no self-respecting Catholic doctor would use it, and that was all the further evidence on the point.
In our view, this vital piece of evidence was in no way cleared up by these answers, and the doctor had gone as far as his recollection and conscience would allow him.
I have considered this part of the case very carefully, and I am of the opinion that having regard to the nature of the evidence a number of constructions may be put upon it. No one can suggest that it is clear evidence of a specific request for a quantity of ergot. On its fact, it is not that. Mr. Casey does not contend that it is. He submits that the case against the accused is to be inferred from the whole nature of the case, and from the very specific request made on the occasion of the second visit, and that the only reasonable construction to be put upon that portion of the doctor’s evidence is that it was by inference a request for the delivery of ergot to the accused in person.
This Court is of the opinion that Mr. Murnaghan’s point that his client, having been plainly informed that the doctor would supply him with no abortifacient on his second visit, is a point in his favour, and that there is room for the view that he would not again attempt to achieve something he learned was impossible a week earlier, as there are other views open. One such is that the accused may have learned during that week that there was such a drug, which, if properly administered, would produce a miscarriage. Living in a farming community he may have had access to ergot; he may have learnt that to administer too little would produce no result, and to administer too much would cause death; and it may well be that in the absence of any other means of discovery he intended to find out from the doctor by casual conversation, the proper amount necessary to produce a miscarriage, and the proper mode of application. It may be that he never got that far because of the immediate and angry reception given by the doctor to the remark.
Secondly, because of the danger associated with the administration of such a drug, he may have intended that the doctor himself should have administered the ergot. Mr. Casey agrees that if such was his intention the proper charge would be one of inciting the doctor to commit the offence. Again, on the evidence there is room for this second view, having regard to the doctor’s reaction when the remark was made, when he said that no self-respecting doctor would give such a drug under the circumstances. Some persons might well believe that the doctor thought that he was being asked to give or administer the drug in person to the patient. There is, of course, also room for the view that the accused had in fact asked for, or was about to ask for, the delivery of the drug to himself in person, but was stopped by the doctor’s interruption. There is also the possiblity that he might have had one or more of these objects in view when he said, “Wasn’t there some drug named ergot,”but at the doctor’s prompt and emphatic reply or interruption, stopped all further talk on the topic.
For these reasons this Court is of the opinion that this vital piece of evidence, which should be clear, falls short of that which is required by law. It is vague and uncertain. It proves nothing expressly. It forces the prosecution to rely on certain inferences when inferences of another nature are open. If this was an issue to be tried by a jury in a civil action, perhaps such jury might, on such evidence, be told that if on the balance of the probabilities they believed that the remark attributed to the accused was a request by him for ergot, a finding against him might stand. However, as this is a criminal matter, and as the prosecution cannot have the matter determined by the weighing of the probabilities, but must prove beyond all reasonable doubt that the accused clearly and unambiguously asked the doctor for ergot, I am of the opinion that the evidence on this point, at the close of the prosecution, was not sufficient to put the matter beyond all reasonable doubt, and that Mr. Murnaghan was therefore entitled to the direction he asked for. For these reasons the application for leave to appeal is allowed; the hearing of this application will be treated as the hearing of the appeal, and the conviction quashed.