Connolly v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 26 March 2015
• Neutral Citation: [2015] IESC 40
• Court: Supreme Court
• Docket Number: [S.C. No. 370 of 2008]
• Date: 26 March 2015

Connolly v DPP

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924

BETWEEN:

SEAN CONNOLLY

APPELLANT

V.

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2015] IESC 40

Denham C.J.

Murray J.

O'Donnell J.

McKechnie J.

MacMenamin J.

[Appeal No. 370/2008]

THE SUPREME COURT

Offences against the State – Membership of illegal organisation – Evidence of membership – Whether issue not before first instance court can be argued on appeal

The appellant had been convicted of membership of an illegal organisation. He sought to appeal to the Court of Criminal Appeal, but his appeal was dismissed. He was granted leave to the Supreme Court on the point of whether DPP v Kelly [2006] 3 IR 115 was still applicable.

Mr Justice MacMenamin stated that two issues arose. Firstly, the status of evidence submitted by a Garda as to the appellant”s membership of an illegal organisation. Secondly, whether an argument based on the admission of evidence alleged to have been unconstitutionally obtained relying on DPP v Damache [2012] IESC 11. In relation to the DPP v Kelly point, earlier case law in DPP v Donnelly and Donohoe v Ireland (App no 19165/08) had answered this point in the affirmative. DPP v Kelly [2006] 3 IR 115 applied.

Considering the submissions, the Court was satisfied that the CCA had correctly considered the appellant”s case. Additional material other than the evidence of the Garda Chief Superintendent was present. The Damache judgment could not be raised given the judgment was handed down 6 years after the appellant”s trial.

The appeal would therefore be allowed.

Introduction

1 Two inter-related issues fall for determination in this appeal. The first relates to a question posed by the Court of Criminal Appeal, pursuant to s.29(1) of the Court of Justice Act, 1924, as amended. The second question, addressed later, is whether the appellant should be permitted to argue an issue which did not arise at the trial, or in the appeal.

2 The first question concerns the status, at trial, of evidence of a Chief Superintendent's belief of an accused's membership of an illegal organisation involved in terrorism.

3 Section 3(2) of the Offences Against the State (Amendment) Act, 1972 (OASA) provides that:

"Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member."

4 The appellant was tried and convicted by the Special Criminal Court of membership of an illegal organisation in 2006. The evidence before the trial court consisted of the belief evidence of Chief Superintendent Philip Kelly, together with other matters of evidence, which the trial court held, was consistent with the Chief Superintendent's belief. The appellant appealed to the Court of Criminal Appeal. That court dismissed the appeal, holding that there had been sufficient evidence, lawfully obtained, to justify the conviction.

5 On the 31 ^st October, 2008, on application by counsel for the appellant, the Court of Criminal Appeal issued a certificate, pursuant to s.29 of the Courts of Justice Act, 1924, stating that the appeal involved a point of law of exceptional public importance, and that it was desirable in the public interest that an appeal should be taken to the Supreme Court thereon. The point certified was as follows:

"Is the jurisprudence of the Supreme Court, as enunciated in People (DPP) v. Kelly [2006] 3 I.R. 115, in relation to belief evidence of a Chief Superintendent, pursuant to s. 3(2) of the Offences Against the State (Amendment) Act, 1972, still applicable, having regard to the European Convention on Human Rights Act, 2003."

6 In DPP v. Kelly [2006] IESC 20, this court (Murray C.J., Denham, Geoghegan, Fennelly and Kearns J.J.) held that a limitation on cross-examination was inherent in the terms of s.3(2) of the Offences Against the State (Amendment) Act, 1972, which enjoyed the presumption of constitutionality. However, this Court held that, as the normal rights of an accused were being infringed, there must be a constitutional requirement that the limitation of cross-examination be kept to a minimum; and, by a majority (Geoghegan J., Murray C.J., Denham and Kearns J.J.), that s.3(2) authorised the giving of evidence about the basis of a Chief Superintendent's belief, but not to the extent that it interfered with, or defeated, a legitimate claim of privilege. The same majority of the Court held that the balancing of conflicting rights and interests could only be determined by the court of trial; and that the Chief Superintendent's belief evidence had no special status, but was merely a piece of admissible evidence. The Court observed that, although the Special Criminal Court was entitled to take into account the fact that the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into account the fact that the accused made a false statement to the gardai and other corroborating evidence. The majority observed, obiter, that the practice of the Special Criminal Court not to convict on belief evidence alone was commendable, though not absolutely required by statute: there might be exceptional cases where the Special Criminal Court would be entitled to convict on belief evidence alone. While concurring in the order made by the court dismissing the appeal, Fennelly J. expressed the view that the Special Criminal Court should have explained the weight, if any, which it attached to the evidence of the Chief Superintendent, in view of the claim of privilege; however, the restriction on the rights of the accused did not go further than strictly necessary to protect other potential witnesses or informants. He also observed that a trial court was entitled to assume that a Chief Superintendent would only give such belief evidence, only when satisfied beyond a reasonable doubt of its truth; even when that was the only evidence, a trial court was entitled to act on it, in the absence of some challenge or question sufficient to raise a doubt. He took the view that matters might have been quite different in the trial court had the only evidence been that of a Chief Superintendent claiming privilege, and the accused had given evidence denying the charge of membership.

7 A subsequent complaint to the ECtHR, claiming violation of Mr. Kelly's rights under Article 6 and Article 13 ECHR was dismissed as being manifestly ill-founded, at the admission stage, by the Third Section of the ECHR ( Kelly v. Ireland, Application No. 41130/06, delivered on the 14 ^th December, 2010).

The Point of Intersection Between the Two Issues

8 The point of intersection between the two issues arising in this appeal occurs in the following way. The determination of the Court of Criminal Appeal to issue a certificate pre-dated three judgments which are relevant to this appeal. First, was the judgment, also of the Court of Criminal Appeal, DPP v. Donnelly & Ors. [2012] IECCA 78 on the operation of s.3 OASA 1972; second, the judgment of the European Court of Human Rights (ECtHR) in Donohoe v. Ireland (Application No. 19165/08) [2013] ECHR 1363 (12^th December, 2013); and third, the judgment of this Court in DPP v. Damache [2012] IESC 11 [2012] 2 I.R. 226, to the effect that at s.29 of the Offences Against the State Act, 1939 (as amended) was invalid, having regard to the provisions of the Constitution.

9 Both DPP v. Donnelly & Ors. [2012] IECCA 78 and Donohoe v. Ireland (Application No.19165/08) [2013] ECHR 1363 (12^th December, 2013) concerned the operation of s.32 OASA in our courts. The judgment in DPP v. Donnelly & Ors. [2012] IECCA 78 very fully explained the manner in which a trial court treated such evidence. It set out how a trial court balanced a series of factors to ensure fairness. This was referred to extensively by the ECtHR in Donohoe v. Ireland (Application No.19165/08) [2013] ECHR 1363 (12^th December, 2013). Donohoe v Ireland concerned the circumstances in which, in compliance with Article 6 of the European Convention on Human Rights, a court might convict an accused person of membership of an illegal organisation, where the evidence, inter alia, consisted of the belief of a Chief Superintendent of An Garda Siochana. The facts in both DPP v. Donnelly and Donohoe v Ireland bear a similarity to those at the appellant's trial, as this judgment explains. The manner in which s.3(2) OASA 1972 operates, as outlined and explained in DPP v. Donnelly, and as further described in Donohoe v Ireland, was such that the ECtHR held there had been no violation of the applicant's (Mr. Donohoe's) rights under Article 6 ECHR. Thus, by the time the point certified by the Court of Criminal Appeal came on for hearing, the certificate was effectively redundant, if viewed in isolation.

10 However, as a result of the DPP v. Damache [2012] IESC 11 decision, the appellant now seeks to raise a further point in the s.29 appeal, now effectively requesting this Court to discount from its consideration evidence which was adduced at trial, as a result of the search carried out pursuant to s.29 of the Offences Against the State Act. Relying on DPP v. Damache [2012] IESC 11, counsel submits that this Court should hold that the additional evidence should be treated as having been unconstitutionally obtained, and, therefore, inadmissible. This would then place in a different perspective the actual body of evidence upon which the Special Criminal Court convicted, and the Court of Criminal Appeal acted, in dismissing the appeal. The question, considered later, is...