THE SPECIAL CRIMINAL COURT

Barr J.
Smyth J.
Reilly J.
THE PEOPLE 
-v-
JOSEPH KAVANAGH

Judgment of the Court delivered by Mr. Justice Barr on the 29th day of October, 1997

COUNTS 1, 2 AND 3 IN THE INDICTMENT

	Mr. White, counsel for the accused, has raised an issue of law regarding counts 1, 2 and 3 in the Indictment.  They relate to respectively the false imprisonment of James Lacey, Joan Lacey and Suzanne Lacey which are stated to be "contrary to Common Law and as provided for by Section 11 of the Criminal Law Act, 1976" (the 1976 Act).  It is submitted that the offence charge is one at common law only and that Section 11 deals with penalty and does not create a statutory offence.  The significance of this is that a statutory offence of false imprisonment has been created by Section 15 of the Non-Fatal Offences Against the Person Act, 1997 (the 1997 Act), which also abolishes the prior common law offence.  There is no provision in that Act or in the Interpretation Acts saving prosecution of such offences at common law allegedly committed prior to the date when the 1997 Act came into force (19th August of this year) and which come to trial after that date.  Mr. O'Higgins, counsel for the prosecution, accepts that such a lacuna exists, but he submits that Section 11 of the 1976 Act creates a statutory offence of false imprisonment which has not been abolished by the 1997 Act.  Mr. White concedes that if there is a statutory offence of false imprisonment created by Section 11 in addition to that at common law, then the accused may be prosecuted and tried for the statutory offence therein created after the 1997 Act came into operation.
	Section 11 of the 1976 Act is in the following terms:-

	"11(1)	The offences of kidnapping and false imprisonment and an offence under Section 10 of the Criminal Law (Jurisdiction) Act, 1976 shall be felonies.

	      (2)	A person guilty of kidnapping or guilty of false imprisonment shall be liable on conviction on indictment to imprisonment for life."

In the opinion of the Court the foregoing provision does not create a statutory offence.  What it does is to categorise the common law offences of kidnapping and false imprisonment as being felonies and it provides also the maximum penalty which may be imposed on a person guilty of such offences.  Section 11 is not a provision similar to Section 47 of the Offences Against the Person Act, 1861 which does create a statutory offence in addition to a similar offence at common law - see the judgment of O'Dalaigh C.J. in The State (O) -v- O'Brien [1971] I.R. 42 at pp.50 and 51.  It follows, therefore, that Mr. White's submission is well-founded that it is not possible for the Court to consider counts 1, 2 and 3 in the Indictment as the offences charged have been abolished by the 1997 Act.
	The court regards it as surprising and most unfortunate that those having responsibility for the drafting and enactment of the 1997 Act should have made an obvious error of such a serious nature.

COUNTS 5, 6 AND 7

	The remaining counts in the Indictment charge the accused with respectively robbery at the National Irish Bank, College Green, Dublin on 2nd November, 1993; the related offence of demanding with menaces and possession of a firearm at Blackrock, Dublin on the same date with intent to commit the indictable offence of false imprisonment.
	Having considered the evidence, the court is satisfied beyond reasonable doubt as to the following matters:-
	Mr. James Lacey was, in November, 1993 the chief executive of the National Irish Bank, a "high street" bank, which has its principal place of business in College Green and its administrative headquarters at Wilton Place, Dublin.  Mr. Lacey then resided with his wife and children in a dwellinghouse at Blackrock, County Dublin.
	At or about 1.30 a.m. on the morning of the 2nd November, 1993, Mr. Lacey and his wife arrived home by car from a business engagement in the midlands.  They had employed a baby-sitter, a young lady called Tanya Waters, to mind their children, Suzanne aged 14 years; Robert aged 13 years; Louise aged 10 years and Sarah Jane aged 6 years.  On their arrival at the house, Mr. and Mrs. Lacey were apprehended by an armed gang which appears to have comprised about seven men.  Mr. Lacey was struck on the head with a firearm.  He, his wife and Ms. Waters were forced to lie down on the drawing-room floor.  He was handcuffed.  The children were woken and brought downstairs.  Later, by direction of the gang, they were brought back to their bedrooms by Ms. Waters, dressed and brought downstairs again.  Soon afterwards the children, Mrs. Lacey and Ms. Waters were taken to another living-room on the ground floor where they were tied up with sheets and photographed by a polaroid camera which was then destroyed.  Meanwhile, Mr. Lacey was forced to remain in the drawing-room.  He did not see his children or the baby-sitter again that night.  Mrs. Lacey was told by one of the gang that she would be brought to where her husband was being held and that she was to inform him that he must do everything he was told by the gang and that his son, Robert, had been shot in the hand - by inference as a warning about what the gang would do if Mr. Lacey did not carry out their instructions.  She did as she was told.  In fact Robert had not been shot.  Mrs. Lacey, Ms. Waters and the children were taken away by the gang when they left the house at about 6.00 a.m..  They were brought to a secluded stable at Blackhorse Avenue where they were gagged, tied up and threatened that they would be knee-capped if anything went wrong.  They were found by  garda officers late in the evening of 2nd November.  
	While the family were being detained in their home, Mr. Lacey was told by one of the gang that they would be bringing a man to the house and that he (Lacey) was to accompany this man in a van to the National Irish Bank, College Green, in the morning.  It was intimated to him that the gang was aware that there was a "secret room" in the bank which was full of cash.  This money was to be loaded into the van.  It was further intimated that the gang was aware of certain details about himself; the manager at College Green, Mr. Keenan, and another member of the staff, Mr. Boner.  This included information about their families and where they lived.
	A man was brought into the room where Mr. Lacey was being detained and was put lying on the floor beside him.  He was hooded and his feet were tied; he was unshaven and filthy.  Soon after his arrival, the man's hood was removed.  Mr. Lacey was told that this was the person who would accompany him to the bank.  At that stage the man was taken upstairs by members of the gang and he reappeared shortly afterwards cleaned up and clad in Mr. Lacey's clothes.  This man was the accused.  While the latter was upstairs Mrs. Lacey was brought into the room where her husband was detained.  She had a pillowcase over her face.  She lifted it up and informed him that she was being taken away.  At or about that time and before the accused returned to the room, Mr. Lacey was handed by a gang member polaroid photos of his wife, Ms. Waters and each of the children.  He was told that if he wanted to see them again alive he was to follow the instructions he had been given.
	When the accused returned to the room he sat beside Mr. Lacey.  He, the accused, was given further instructions relating to the robbery.  He was given a pair of red coloured spectacles which he was told to wear as an indication that events were going according to plan.  The leader of the gang told Mr. Lacey that the accused would drive the van to the bank and park next door to the loading-bay in St. Andrew Street.  He was told that they were not to leave home before 10.00 a.m. and to arrive at the bank by 11.00 a.m..  The operation there was to conclude at 1.00 o'clock.  It was to be carried out as quickly as possible and Mr. Lacey was to remove "walkie-talkies" from the security men.
	After the gang had gone, Mr. Lacey queried the accused as to his identity and where he had come from.  He responded that the gang had told him not to say who he was and he indicated only that his first name was "Joe".  He also stated that he had been kidnapped and held for two weeks prior to that time.  He said that he had been brought to the Lacey house by members of the gang; that they were dangerous people and that their instructions must be followed.  He said that he also had instructions not to tell Mr. Lacey where they were to collect the van and was not to release him until 7.00 a.m..  At or about 8.00 a.m. he did so and Mr. Lacey then made tea for both of them.  In course of a further conversation, the accused showed Mr. Lacey polaroid pictures of his sons and mother-in-law.  He said that they were being held captive by the gang and that he feared for their safety.  He said that he had been told by the gang that his family would be killed if he did not do what he was told.  He stated that he had also been informed that one of his sons has been shot in the hand.  He then reiterated that "these men are deadly serious".  Sometime later the accused told Mr. Lacey that the van was parked at Merrion Church opposite St. Vincent's Hospital.  He then explained that he had been apprehended by the gang at a health club in Crumlin; held in awful circumstances and he again stated his belief that the gang were holding his children.
	Having left the house at 10.00 a.m. in Mr. Lacey's car, he drove the accused to the car park in front of Merrion Church where the latter pointed out a green van which was discreetly parked near a wall.  The keys were on the driver's seat as arranged by the gang.  They got into the van and the accused told Mr. Lacey that he was not a very good driver and that he hoped he would be able to drive the vehicle.  They drove out of the car park and turned right for the city.  Mr. Lacey considered that the accused drove quite well except for a failure to change gears.  He drove in a high gear.
	On arrival at the bank, Mr. Lacey and the accused went to the private office of a witness, Mr. Eugene Keenan, the senior manager, and met him there.  Mr. Lacey told the latter what had happened; that his wife and children had been taken away by the gang; that the accused was in the same situation as to his family and that the gang wanted all the cash which was stored in the bank.  Both men showed Mr. Keenan polaroid photographs of their respective children which had been given to them by the gang.  The accused reminded Mr. Lacey in Mr. Keenan's presence that he had promised to fill the van with money and that he should not go back on his word or his children would be injured.  The accused informed Mr. Keenan that the gang knew that cash was kept in a "secret room" downstairs.  He told the manager that the gang knew about him and he furnished biographical information including the name of the witness's wife; that he drove a Volvo car and that he was particularly close to his daughter.  He also referred to Mr. Dermot Boner, another bank official, and stated that the Keenans and the Boners lived in the same locality and had holidayed together in the previous year.  All of that information was true.  
	There was in fact a cash centre in the vault of the bank.  Mr. Lacey told Mr. Keenan that they would have to give all the money in the bank, meaning what was in the cash centre.  A sum of £233,000 in cash was brought to Mr. Keenan's office.  The accused's reaction was that the amount was not enough.  He again reminded Mr. Lacey of his promise and that he must keep his word.  As a result of this a further £10,000 in notes was added.  The entire was put into three plastic sacks which Mr. Keenan and the accused carried down to the loading-bay where the van was and they put them into the back of the vehicle.  Mr. Keenan regarded the demeanour of the accused while in the bank as being quite relaxed.  Mr. Lacey stated in evidence that before they set out from his house to collect the van, he got the impression that the accused was "extremely nervous".  At about 9.40 a.m. he became anxious to get the money at the bank.  Mr. Lacey then told him that he, the accused, would have to follow the letter of instruction which they had been given by the gang.  He stated that he was not suspicious of the accused at any stage.
	When the sacks were loaded into the van, the accused drove it out of the loading-bay and turned right.  He left the premises at about 1.00 p.m..  Subsequently, he informed the police that he had instructions to follow a motorcyclist who would be wearing a helmet and a multi-coloured top.  He carried out his instruction and, following the motorcyclist, finally arrived at a lane-way off Maxwell Road via a circuitous route.  At that point he handed over the van to the motorcyclist who inspected the sacks of money and the accused was allowed to leave the scene on foot.  Subsequently, on 9th/10th December, 1993 he furnished D Garda Coppinger and D Sergeant Melody with information regarding his activities on the day of the robbery from the time when he took possession of the van at Merrion Church.  The accused had several interviews with officers on the team who were investigating the robbery and the kidnapping of the Lacey family.  The information furnished by the accused to Garda Coppinger and Sergeant Melody was recorded in writing in question and answer form.  It contains the following passage.  At the conclusion of the interview the entire note was read over to the accused and he was invited to sign the document.  He refused to do so but agreed that the content was correct:-

"M.C.		You remember the green hiace you drove with Mr. Lacey on 2/11/93?
J.J.		Yeah.
M.C.		Do (sic) you see this van prior to 2/11/93?
J.J.		No.
M.C.		Where was it parked when you collected it with Mr. Lacey?
J.J.		At the Church opposite St. Vincent's Hospital.
M.C.		How did you know which van it was?
J.J.		I was told that it was a green hiace and that the keys would be on the seat.
M.C.		You drove the van that night?
J.J.		Yeah, Mr. Lacey got into the passenger seat.
M.C.		Did Mr. Lacey leave his own car there?
J.J.		Yeah.
M.C.		Where exactly was the van parked in the car park?
J.J.		It was parked against the wall at the side.
M.C.		Which side?
J.J.		I'm not sure.
M.C.		Will you show us if we take you there?
J.J.		Yeah, alright.
M.C.		Where did you go to after that?
J.J.		To the bank.
M.C.		What way did you go to the bank?
J.J.		I drove into town and I approached the bank down Suffolk Street.
M.C.		Where did you park?
J.J.		Near the pedestrian crossing outside the bank.
M.C.		Was it you who reversed the van into the bank when Mr. Lacey suggested
		this?
J.J.		Yeah.
M.C.		How many black plastic bags was the money in?
J.J.		Two.
M.C.		How did you know that there was money in the bags?
J.J.		I checked to make sure.
M.C.		Did you suggest to Mr. Lacey that there wasn't enough money in them?
J.J.		No, I didn't.
M.C.		Weren't your instructions to fill the van with money?
J.J.		Yeah, but he told me that was all the money in the bank.
M.C.		Did you know how much money was in the bags?
J.J.		I wasn't told.  I was just told to fill it.
M.C.		Where were the bags put in the van?
J.J.		In the back.
M.C.		What happened then?
J.J.		I drove the van away.
M.C.		Tell us what direction you went then?
J.J.		I can't tell you, I'll be shot if I tell you anymore.
M.C.		Who told you, you would be shot, the kidnappers?  I am asking you now to tell us all you know.  What direction did you go after leaving the bank?
J.J.		I drove to a point.
M.C.		Where was this point?
J.J.		I can't tell you.
M.C.		Did you cross the liffey?
J.J.		No.
M.C.		It must have been on the Southside then?
J.J.		Yeah, O.K.
M.C.		How long did it take you to get to this point?
J.J.		A half an hour to three quarters.
M.C.		Was this part of your instructions?
J.J.		Yeah.
M.C.		Who did you meet there?
J.J.		A person.
M.C.		Was it a male or female?
J.J.		Male.
M.C.		How did you know this person that you were supposed to meet?  Did you have a password or some form of identification?
J.J.		My instructions were that he would be wearing a multi-coloured top.
M.C.		Was he masked or wearing a balaclava.
J.J.		No.
M.C.		Would you know this person again?
J.J.		No.
M.C.		Why?  You saw his face.
J.J.		No, he was wearing a motorcycle helmet, red in colour with a visor.
M.C.		I thought you said he wasn't wearing a mask or balaclava?
J.J.		He was wearing a helmet.
M.C.		Was he young or old?
J.J.	 	I don't know.
M.C.		Was he tall or small?
J.J.		Average.
M.C.		Was he fat or slim?
J.J.		Well built.
M.C.		Did he have any transport with him?
J.J.		Yeah, he had a motorcycle.
M.C.		What type of motorcycle was it?
J.J.		A 250 cc.  I don't remember the make.
M.C.		Was it new or old?
J.J.		It was an old bike.
M.C.		Can you remember anything about the registration number?
J.J.		No.
M.C.		Was it Dublin?
J.J.		I don't know.
M.C.		What did you do when you met him?
J.J.		I left the van.
M.C.		Did he check to make sure that the money was all there?
J.J.		Yeah, he did.
M.C.		Was this person on his own?
J.J.		Yeah.
M.C.		Was this person going to drive the van or take the money away on the motorcycle?
J.J.		I don't know.
M.C.		You are from the South City you would know where this location was?
J.J.		I do, but I can't tell you.
M.C.		How did you know the way to the location?
J.J.		I followed the man on the bike from the bank.
M.C.		I thought you said you met this man at a point?
J.J.		No, I followed him from the bank.
M.C.		Are you talking about the man with the multi-coloured top?
J.J.		Yeah.
M.C.		Are you now saying that this man was on a motorcycle outside the bank?
J.J.		Yeah.
M.C.		And did you follow him?
J.J.		Yeah.
M.C.		Was this part of your instructions to look for this man outside the bank?
J.J.		Yeah, it was.
M.C.		Tell us where you went?
J.J.		We went to a lane-way off Upper Rathmines Road.
M.C.		Do you know the name of this place?
J.J.		No.
M.C.		Will you show us?
J.J.		Yeah, okay.
M.C.		What route did you travel?
J.J.		I'll show you the route we took.
M.C.		Tell us generally where you went.
J.J.		We went up towards St. Stephen's Green turned right towards Wexford Street, went into Camden Street and up towards the canal.  We turned left at the canal and went into Ringsend.  We turned back there and drove up the canal.  We turned off the canal near Rathmines Road and went up Mount Pleasant Avenue into Rathmines.  We turned left in Rathmines and went into Maxwell Road and went into the lane-way there.  I was told to park the van by the man on the motorcycle.
M.C.		What did you do then?
J.J.		He checked the money first and then moved me away.
M.C.		Where did you go then?
J.J.		I walked to Garrett Sheehan's office off Francis Street.
M.C.		What time did you get there?
J.J.		It was 3.00 p.m.
M.C.		How long did it take you to walk there?
J.J.		About half to three quarters of an hour.
M.C.		Tell us the route you took?
J.J.		I walked down Rathmines Road into Leinster Road onto Harolds Cross Road.  I then sat in a park opposite Flanagan's Pub for a while.
M.C.		Where did you go then?
J.J.		I went into the Lantern Pub to think.
M.C.		Did you have a drink?
J.J.		Yeah, I had two pots of tea and some soup.
M.C.		Did you talk to anyone?
J.J.		Only the bar lady.
M.C.		Did you know her?
J.J.		No.
M.C.		Can you describe her?
J.J.		She was in her fifties and had grey/blond hair.  There was another old man there as well.
M.C.		How long did you stay in this pub?
J.J.		I can't remember.
M.C.		Did you meet anyone or speak to anyone on the journey to the Lantern Pub?
J.J.		No.
M.C.		Did you notice anything unusual?
J.J.		Only that I saw a motorcycle policeman near the entrance to the greyhound stadium at Harolds Cross Road.
M.C.		What was he doing?
J.J.		He had a car stopped.
M.C.		Why didn't you go over and tell him what had happened.
J.J.		I was going to but I was afraid for my children.
M.C.		You know where Rathmines Garda Station is?
J.J.		Yeah.
M.C.		Why didn't you go in there and report what was happening?
J.J.		I was afraid.
M.C.		When you left the Lantern Pub where did you go?
J.J.		I walked down to Patrick Street and walked through a lane-way then over to Garrett Sheehan's office.
M.C.		Did you speak to Garrett Sheehan?
J.J.		No, I spoke to Bob Eagar.
M.C.		What did you tell him?
J.J.		I told him what had happened.
M.C.		What did he say for you to do?
J.J.		He gave me £5 and told me to go to the Liberty Bell Pub across from his office and to come back at 6.00 p.m.
M.C.		Did you speak to anyone there?
J.J.		Only the barman.
M.C.		When you were in the bank in St. Andrew Street why didn't you telephone your family to see if they were in fact kidnapped?
J.J.		I don't know.
M.C.		When did you make contact with your family to see if they were alright?
J.J.		I telephoned my brother Paul after 6.00 p.m. from either Garrett Sheehan's office or the Liberty Bell Pub.
M.C.		What did Paul say to you?
J.J.		He told me that my kids were fine.
M.C.		Where does Paul live?
J.J.		I don't know.  Somewhere in Tallaght.
M.C.		Do you know his telephone number?
J.J.		Yeah, it's 510950.
M.C.		Why didn't you go to the police then?
J.J.		Garrett Sheehan told me not to go near them and to come back to his office between 9.00 a.m. and 9.30 a.m. on the following day.
M.C.		Where did you go then?
J.J.		Paul collected me and brought me to my sister Lilly's house in Tallaght.
M.C.		Whats the address?
J.J.		17, Cushlawn Park.
M.C.		Who stays there?
J.J.		She lives with Noel McGrath and my two kids stay there.
M.C.		How long did you stay there?
J.J.		Until the following morning.
M.C.		Did anyone contact you there?
J.J.		Yeah, Garrett Sheehan rang at around 10.30 p.m..  I was in bed."

	On the following morning the accused returned to Mr. Sheehan's office by appointment and was brought by him to Terenure Garda Station for the purpose of making a formal statement as to his part in the robbery at the National Irish Bank on 2nd November, 1993 and related matters together with his explanation for taking part in what had happened.  The accused's statement was dictated by him and recorded by D Garda O'Brien in the presence of D Inspector McKenna and Mr. Sheehan.  The latter intimated that his client would not provide any supplementary information.  It appears that this was on the advice of Mr. Sheehan.  The statement is in the following terms:-

	"On 15th October 1993 between 8.00 p.m. and 9.00 p.m. I was in Crumlin Shopping Centre leisure swimming pool.  I was having a shower and I heard my name 'Joe Kavanagh' getting called.  I answered 'yes'.  I looked out of the shower and I saw a man wearing a baseball cap.  He said your son is after being in a bad car accident.  I immediately left the shower and got dressed.  I went out to the main entrance.  The man with the baseball cap was leaving the entrance door.  I followed him out the door and into the car park.  He walked to the side door of a van and he opened the passenger door.  As I approached he opened the side door and he said 'come on quick we'll give you a lift'.  I was just about to get into the back of the van when I noticed a man sitting in the back of the van.  I hesitated and then I got a push from behind.  I was forced into the van onto the floor of it.  I looked behind me while I struggled on the floor.  It was a hesitant struggle more than a violent struggle.  As I looked around I saw that there was a handgun pointed at my neck.  I was told to stay quiet or I would be shot.  My hands were pulled behind my back and handcuffs were put on my hands.  A hood was put over my head.  I was driven for about an hour to an hour and a half.  I was made get out of the van and walk for some distance, about 20 or 30 yards to a building.  I was put into a room.  I was left there by myself.  I was left there for about 14 to 16 hours.  After that someone brought me tea and sandwiches.  The handcuffs were taken off to allow me to have the tea and sandwiches and then put back on, this time with my hands in front of me.  I was made lie on a mattress on the floor in the room.  In the room there was also a sleeping bag and two blankets.  I was left in the room for about a day and then two people came to the room and told me that they had my children.  They told me that if I tried to do anything that they would shoot me.  They each carried a handgun.  They said that they wanted me to drive a van and that I wouldn't get hurt if I did what I was told.  I told them that I would do anything once they left my children alone.  After I said this they removed the handcuffs.  I was kept in this room for approximately ten to fourteen days.  Then they came in, about four of them, and they put handcuffs on me with my hands behind my back.  They put a hood over my head and they brought me out of the room.  They brought me out through one room into another and then out into the air.  I was put into what I think was a van.  They put me lying down on the floor and I was driven for two hours or more.  Then the van stopped and the engine was turned off.  There was some talking in the van but I couldn't really hear what they were saying.  After about six or seven hours the van was started back up again and it was driven for about ten minutes.  I was taken out of the van again and told to 'come with us'.  I was made walk for about fifteen to twenty yards.  I was brought in to a place and told to sit down.  When they pushed me down on the floor they opened the handcuffs.  They removed the hood from my head.  They introduced me to a man named 'Jim'.  They said you'll be driving this man into a bank.  They said this man has agreed to give you everything in the bank.  They said if I did that neither myself or my children would be hurt.  They said to the man that neither himself or his children would be hurt if he carried out the instructions.  I told them that I would do what I was told and the other man said that he would do what he was told.  At this stage one of the men stared at me for a while, touched me on the chin and said 'we're going to take that beard off you'.  He turned to the other man and asked him if he had any clothes to fit me.  I was brought out of the room and upstairs to a bathroom.  I was given a razor and ordered to shave.  I was given another razor because the first one wasn't taking the stubble off.  I was given some clothes which included a suit, shirt and tie and some shoes.  I was told to put them on me.  I was then brought to another room.  I was made sit on a bed.  One of the men pointed a gun at me and told me I was to go into the bank with the man downstairs, and that the man was going to fill up the van.  I was told to collect the van across the road from St. Vincent's Hospital.  He said I wasn't to tell the man until ten o'clock where the van was to be collected, and that I wasn't to tell him any of the other instructions I had been given.  He said that if I did tell him I would be shot.  They then brought me downstairs and they said that they knew all my movements and that to do what I was told and that if I didn't do what I was told I would be shot.  They put me sitting down beside this other man and they said to this man 'Jim' that they were after giving me my instructions and that I wasn't to let him know until ten o'clock.  The man then handed me a pair of glasses and told me to wear them at all times and that if from when I leave the house if anything went wrong I was to take off my glasses meaning that if Jim didn't do what he was told.  At ten o'clock I told Jim that I was to collect the van at the church grounds near St. Vincent's Hospital.  Myself and Jim left the house and went to St. Vincent's Hospital in Jim's car.  I sat in the front passenger seat.  He went to the church grounds and he parked his car beside a green van.  It was like a hiace or something like that.  The keys were on the front seat of the van.  The key was broken in the ignition.  I put the other half of the key into the ignition and it started.  It was very noisy.  Jim showed me the way to the bank and where to park.  I drove the van and Jim was in the front passenger seat.  I parked outside of the bank.  We went into the bank.  Jim spoke to a few people and he asked was the manager there.  We went upstairs and the manager brought us into a room and sat us down.  Jim asked the manager for the security man.  He told the manager what had happened and what his instructions were.  Jim then had a discussion with the manager and the security man after which another man was called in.  Jim told them that they knew everything about the bank and that he was to give them all the money in the bank and that he was to fill up the van.  They brought in some money and Jim told them to get the van in off the road that it looked out of the way the way it was parked.  We then went downstairs and I reversed the van into some gates.  Jim was saying to the manager that they knew everything about his wife and his daughter and that they'd have to comply with everything he was telling them.  Myself and Jim showed the manager pictures of our families and Jim told him that I was in the same predicament as him.  Jim asked me would I take the money and drive it because they said Jim had agreed to fill up the van, but I was hesitant, because they said if the van wasn't full that they would shoot me.  Jim said to me 'Will you drive the van to them, we'll have a drink after it, the two of us are in the same boat'.  The manager asked me if I was going left or right when I left the bank and I said that my instructions were not to tell anyone before I left the bank and after I left the bank or they would come after me and shoot me.  I'd like to end my statement at this as I am in fear of my life.  There are probably things that I cannot recollect that I said in the bank and what they told me in the house.  I have heard this statement read over to me and it is correct.  I now hand over a pair of glasses and some photographs.  These are the glasses I was made to wear and the photographs of my children and mother-in-law that I was given by these men."
The statement was duly signed by the accused and witnessed by D Garda O'Brien and D Inspector McKenna.
	An incident took place on 18th January, 1994 where the accused lives at Priestfield Cottages, South Circular Road.  He sustained a gunshot wound to his left leg involving the fleshy part of the calf muscle.  There was a small entry wound about a quarter of an inch diameter and an exit wound which was a little larger.  He was brought to St. James's Hospital and detained, though not seriously injured.  Several national newspapers were contacted by someone as a result of which the accused was interviewed by journalists, including Mr. Brendan Farrelly of the Evening Herald.  The accused told the latter that he had been shot by the gang as a punishment for not filling up the van with money as instructed.

THE ISSUE

	The net issue for determination by the court is the credibility of the accused's explanation that he was coerced into participation in the robbery at the bank and that he, like Mr. Lacey, was an innocent victim who was forced to play his part in the robbery through fear for his own life and for the safety of his family who he believed had been kidnapped by the gang and one of whom he understood had been shot and wounded as an earnest of the reality of the threats which had been made to him.  If the accused's explanation creates a reasonable doubt that it might be true, then he is entitled to an acquittal of the offences charged, even if the court has serious reservations about the veracity of his story.
	In order to determine whether the accused's explanation of coercion is credible or not, it is necessary to look at the entire of the evidence and, if there are flaws in the accused's story, whether collectively they give the lie to his allegation of coercion and establish beyond reasonable doubt that his part in the robbery and related matters was as a volunteer in collaboration with the members of the kidnap gang.

CONCLUSIONS

	There are six elements which have been established to the satisfaction of the court and which, taken in the round, lead to only one reasonable conclusion, i.e., that the accused's role in the robbery and related events was that of a volunteer; that his alleged kidnapping never took place and that he never had any cause for concern about the safety of his sons and mother-in-law as at all material times he was aware that they had not been kidnapped or harmed as alleged. 

1.	Although many times the accused expressed fear for the safety of his sons; fears about the viciousness of the gang and an apparent belief that one of his sons had been shot and wounded by the gang as a token of their intentions if he failed to carry out their instructions, he did not take any steps to ascertain the whereabouts of and the safety of his children for in or about five hours after his part in the robbery had ended, though he had ample opportunity so to do during the afternoon of 2nd November, the day of the robbery.

2.	Knowing that his two sons resided with his mother-in-law at her home in Crumlin (and not with his sister, Lilly, as he told D Garda Coppinger and D Sergeant Melody) and believing that all three had been kidnapped as indicated by the photographs given to him by the gang, and probably knowing also that Mrs. Bolger had a telephone at home; if he believed that they had been kidnapped the obvious step which must have been apparent to the accused would be to telephone the home of his mother-in-law or immediately call to the house and, if necessary, make enquiries from neighbours.  He did not do so but ultimately after 6.00 p.m. phoned his brother, Paul, who resides in Tallaght.  There was no evidence as to how the latter might have known anything about the safety of Mrs. Bolger or the children.  She resides with them at an address in Crumlin which is several miles from Tallaght.

	Mr. White has argued that his client, who did not give evidence, may have been affected by shock resulting from what he alleges had been done to him by the gang.  This is not borne out by the facts.  The court notes that the accused was sufficiently well orientated to realise immediately on being allowed to go free by the motorcyclist that he should consult his solicitor, Mr. Sheehan.  On his way to the office of the latter the accused also took time to review his situation while sitting in a park; then while having refreshment at the Lantern bar and subsequently at the Liberty Bell bar while waiting for Mr. Sheehan.  It is suggested that he may not have wished to contact Mrs. Bolger because of the fraught relationship between them.  Even if they were on bad terms at that time, his alleged great anxiety for his sons probably would have transcended any such reluctance - particularly as the accused believed that one of his boys had been already shot as a warning and that Mrs. Bolger also had been kidnapped.  The court notes that neither Mr. Eagar or Mr. Sheehan have been called to give evidence about the accused and whether either considered that he was in a state of shock when he called to their office on 2nd November.  Furthermore, it was not suggested to Mr. Lacey or to Mr. Keenan that the accused was suffering from shock.  His own observations and performance in the bank establish that he was in control of his faculties and was capable of rational behaviour.  There is nothing to indicate any change in that situation from the time when the accused's part in the robbery had come to an end.

3.	The accused told Mr. Lacey that he, the accused, was not a good driver and that he hoped that he would be able to drive the van.  While driving to the bank he did not properly use the gears.  However, in an interview with D Guards McLoughlin and Campbell on 9th December, 1993, he was asked "Would you consider yourself a good driver?".  He replied "Yes I would".  The court is satisfied that having been selected by the gang to play the pivotal role of van driver which was crucial to the success of the robbery, they would have satisfied themselves about his capacity as a driver.  A poor performance by him in that regard could have ruined the whole operation.  Such a risk is not consistent with the apparent sophistication of the crimes and the expertise shown by the gang in having them carried out.  The court is satisfied that in the belief that it would assist the credibility of his story, the accused attempted to deceive Mr. Lacey regarding his capacity as a driver.

4.	The detailed biographical information furnished by the accused to Mr. Keenan while in the bank and which he contends he had received from the gang at the Lacey home when being given instructions about his part in the bank robbery, is, in the view of the court, too extensive to have been retained in such detail on the basis of one hearing and in conjunction with instructions about the robbery which were of much more immediate importance.  The court is satisfied that the accused would not have assimilated and retained so much information in the alleged prevailing circumstances and, even if he had done so, that he would have retailed all of it to Mr. Keenan.

5.	The court is satisfied that there is only one credible explanation for the conduct of the gang in supplying Mr. Lacey with photographs of his wife, children and the baby-sitter.  Mr. Lacey knew that they had been kidnapped by the gang and the photographs added nothing to his state of knowledge.  Furthermore, having regard to his status in the bank, he did not require any corroborative evidence to satisfy Mr. Keenan and other bank officials that what he had told them about the kidnapping of his family was true.  The court believes that the Lacey family were photographed in an attempt by the gang to underline the apparent similarity between the accused's situation and that of Mr. Lacey, i.e., that both were coerced to do what they did because their respective families were held captive by the gang and were in danger of being shot if the victims failed to carry out their instructions.  In this regard it is also of interest that Mr. Lacey's son and one of the accused's children were alleged by the gang to have been shot in the hand as a warning.  It is noteworthy that there is contradictory evidence about when and where the accused was shown by the gang the photographs of his sons and mother-in-law.

6.	The court is satisfied that the accused's explanation for being shot in the leg at his home on 18th January, 1994 is wholly unbelievable.  However vicious the gang might be, they could not reasonably blame the accused if the bank robbery netted less cash than they anticipated.  If they had any grievance it would have been against Mr. Lacey and there is no evidence that they sought to harm him or his family or any bank official or related person after the robbery.  Furthermore, even if the gang had a grievance against the accused, they would not have waited for six weeks to seek retribution against him.  The court is satisfied that the accused organised the gunshot wound on 18th January and that it had nothing to do with the Lacey kidnapping and the robbery at the National Irish Bank but was intended by him to bolster his story about coercion in that regard.

	Taking into account all of the foregoing factors collectively, the court is satisfied beyond reasonable doubt that the accused's part in the bank robbery and related matters was as a voluntary collaborator with the others who perpetrated the crimes in question; that he was a member of the gang and that he was not coerced into participation in their activities as he has alleged.  Accordingly, the court finds the accused guilty on counts 5, 6 and 7 in the Indictment.