DPP -v- Cormac Fitzpatrick and Terry McConnell, [2012] IECCA 74 (2012)

Docket Number:CCA 35 & 32/10
Party Name:DPP, Cormac Fitzpatrick and Terry McConnell
Judge:O''Donnell J.
 
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COURT OF CRIMINAL APPEALCCA/35/10 &

32/10

O’Donnell J.

de Valera J.

Gilligan J.

Between

Cormac Fitzpatrick and

Terry McConnell AppellantsAnd

The People at the Suit of the Director of Public Prosecutions Respondent

Judgment of the Court delivered on the 25th day of July 2012 by Mr. Justice O’Donnell

1 At approximately 1.20 a.m. on the 9th September, 2008, An Garda Síochána raided a one bedroom apartment in Clondalkin, Dublin. They found two men (who are not the appellants in the present case) in the apartment proper. On the table, and in full view, was a large quantity of materials for the construction of bombs, which were accordingly “explosive materials” within the meaning of the Explosive Substances Act 1883, as amended. There were four screw threaded lengths of pipe, 620 grammes of propellant power, four capsule bulbs, seven nine volt batteries, seven travel alarm clocks, lengths of three core wire, a soldering iron and a pack of four inch nails. Also found in the apartment was a walkie-talkie tuned to a frequency. A similar walkie-talkie was recovered from a man in a car outside the apartment building.

2 The appellants were found in the bathroom wearing latex gloves. Also found in the bathroom was an alarm clock, with wiring coming from it, two batteries and a plate containing an explosive substance which had been partially scorched or burnt. There was a dispute, to which it will be necessary to return, as to whether either of the men had any of the objects on their person. A number of gardaí gave evidence to the effect that Cormac Fitzpatrick, the first appellant, was seen to drop the clock and battery onto the floor. The coat of Terry McConnell, the second appellant, was hanging over a chair in the living area of the apartment. Mr. Fitzpatrick’s cigarettes were recovered in the kitchen area. The appellants were charged with possession of an explosive substance in circumstances such as to give rise to a reasonable suspicion that they did not have it in their possession for a lawful objective, contrary to s.4 of the Explosive Substances Act 1883, as amended by s. 15(4) of the Offences Against the State (Amendment) Act 1998.

3 Both appellants gave evidence at the trial which was broadly similar in its terms. Mr. McConnell was working in Monaghan with Mr. Fitzpatrick. He was friendly however with a Gerard Mackin, then in Portlaoise Prison and awaiting trial at the Special Criminal Court. Mr. McConnell had visited Mr. Mackin in Portlaoise Prison on the 6th September, and for reasons that are not explained, Mr. Mackin was apparently confident of being released the following month (a confidence which transpired to be misplaced). Mr. McConnell offered to help Mr. Mackin get accommodation in the Dublin area when he was released. Mr. Mackin had befriended a man in custody, Declan Duffy, and Mr. Duffy’s brother-in-law, Declan Comerford, was also to assist Mr. McConnell in organising accommodation. Mr. McConnell had met Mr. Comerford in Burger King in Tallaght later that day and they had arranged to meet again on the 8th September.

4 Mr. McConnell’s evidence was that he was travelling in his own car to Dublin to meet Mr. Comerford to finalise arrangements and to provide evidence of his means. He asked Mr. Fitzpatrick to come along “for the spin”. However, Mr. McConnell got lost and pulled into the Kestrel Hotel car park in Walkinstown. He rang Mr. Comerford. Soon after that a car pulled into the car park and Mr. McConnell received a phone call, which he believed was from Mr. Comerford, directing his attention to the car, and when it left he followed it. Sometime later the car stopped and another man, Gareth Pigott , got out and got into Mr. McConnell’s car and directed him to the apartment. Once in the apartment, Mr Pigott produced a bag from which he removed the gloves and some of the equipment subsequently recovered by the gardaí. The appellants were told to put on the latex gloves. This they did although they were frustrated and scared. They went into the bathroom to have a word. Before they could do anything the gardaí arrived.

5 This then was the account that both appellants gave to the court to explain why they, two men from County Monaghan, had travelled to Dublin, made an apparent rendezvous in a car park, picked up a man they had not met before and were found with him in the early hours of the morning in a small apartment in Clondalkin wearing latex gloves and surrounded by bomb making paraphernalia.

6 After a trial in the Special Criminal Court lasting for 13 days over a period of some four weeks, the appellants were convicted. They have now each appealed their convictions, but although the appeals arise out of the same factual circumstances, the issues raised in the appeal are entirely separate.

The Appeal of Terry McConnell

7 This appeal raised a single issue: it was contended that a claim for privilege made in the case in relation to certain disclosure matters, coupled with the jurisprudence of the Irish courts on the resolution of disputes on issues of criminal matters, were such as to contravene the requirements of Article 6 of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”), and accordingly the trial ought to have been stayed.

8 It is necessary to set out the background facts to understand the point which is advanced in this case. The trial commenced on the 4th November, 2009. On the same day (and for the first time) the solicitor for Mr. McConnell raised an issue in relation to what might be broadly described as disclosure and privilege. A fax was sent to the chief prosecution solicitor in the following terms:-

“With reference to the above named client. Please advise us as a matter of urgency whether any of our client’s co-accused were at any time material to this case acting as agents on behalf of the State. Please also advise as to whether Declan Cummingford (sic) were at any time material to this case acting as agents on behalf of the State.

This request is made of the prosecution as it is relevant to our client’s defence and his account of his presence at Apartment 203, The Crescent, Park West, Dublin 22 immediately prior to and at the time of his arrest.”

9 Another request was sent by fax on the 6th November seeking details of a telephone number which had been contained in a notice of additional evidence served the day before the trial (the 3rd November, 2009). The prosecution replied to both letters by an undated letter stating in relation to the queries raised in the letter of the 4th November that “the State claims privilege on policy grounds”. The letter also provided information about the phone number requested.

10 On the 12th November, 2009, the solicitor for the appellant sent a further letter seeking limited disclosure:-

“We refer to the above and request disclosure of any information or statement, either written or verbal, received or taken from the landlord or tenant of the relevant flat concerning occupation of the premises by any of the defendants in this case. Please give this your urgent attention.”

11 By letter of the 17th November the D.P.P. replied:-

“Please note there is no such material in existence for disclosure as set out in your letter of the 12th inst.”

12 On the 18th November, 2009, by which stage the trial was well advanced, the solicitors for the appellant wrote a following letter in the following terms, which was again sent by fax:-

“It is apparent that the D.P.P. is in possession of material relevant to the above proceedings that has not been disclosed to the defence. Such material includes but is not confined to the following type matters:

(1) The occupation of flat 203.

(2) How gardaí became aware of the presence of the unlawful material of flat 203.

(3) The identity and source of information concerning the unlawful enterprise.

(4) The defendant’s involvement in the alleged offences.

(5) The defendant’s relationship vis a vis the other accused.

(6) The duration of the offending items in the flat.

You will be aware of the case made by our client during interview. In light of the case made by him we believe that full disclosure of all material in the possession of the gardaí and DPP is essential to ensure a fair trial and compliance with the provisions of Article 6 of the ECHR. We request the urgent disclosure of this material. We respectfully suggest to you that it is not for the prosecution to withhold this material on the alleged self asserted basis of public interest privilege. The withholding of such material can only legally occur where the Court has examined the material and expressly approved the claim made by the prosecution. We therefore put you on notice that we consider that the procedure deployed by the prosecution to date is procedurally irregular and unlawful. We therefore respectfully request that you proceed provide the said material to us.”

13 A number of matters arise in relation to this letter. First, it was entirely unsatisfactory that these matters should be agitated as the trial was proceeding. Matters of disclosure, and claims of privilege, can be difficult and complex matters, and are normally dealt with well in advance of the trial. Not only does this permit sufficient time and space to address the issues, and means that if disclosure is ordered the defence will have the material in sufficient time to analyse it and consider how it should be deployed, and what additional steps may be required. Not insignificantly in the present context it also might allow a differently constituted court to address the issue if that was though necessary or desirable. Second, since there had been no request for disclosure pre-trial, or subsequent challenge to the disclosure made, the question of withholding any material on any “self asserted basis of public interest and privilege” had not arisen. It followed that since no claim of privilege had yet been made in relation to any of the matters referred to in...

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