D.P.P.-v- Colm Maguire, [2008] IECCA 67 (2008)

Docket Number:223/06
Judge:Macken J.

THE COURT OF CRIMINAL APPEAL223/06Macken, J.Murphy, J.de Valera, J.Between:THE DIRECTOR OF PUBLIC PROSECUTIONS-and-COLM MAGUIREApplicantJudgment of the Court delivered on the 7th May 2008 by Macken, J.This is an application for leave to appeal against conviction, brought on behalf of the applicant who was convicted on the 18th day of October 2006, of membership of an unlawful organisation, and on the 30th November 2006 was sentenced to six years imprisonment.The grounds of appeal, numbering nine in all, as filed, are clear and can be divided into the following groups:1. The trial judges erred in law in accepting that any weight could attach to the evidence of the Chief Superintendent as to his belief. (Grounds 1 - 4);2. The trial judges erred in law in failing to have adequate regard to the defence case and in particular to the sworn evidence of the applicant that he was not on the date in question a member of an unlawful organisation (Ground 5);3. The trial judges erred in law in drawing adverse inferences from the manner in which the applicant dealt with questions put to him in garda interviews, in circumstances where he had furnished denials, and in arriving at the conclusion that he had given misleading answers; and further that there was corroboration of the belief evidence of a Garda Superintendent (Grounds 6 - 7);4. The learned judges failed in law correctly to apply certain jurisprudence of the European Court of Human Rights (Grounds 8 - 9).It is appropriate, having regard to the arguments made, to deal with the first and fourth items above first since they are interrelated to some extent, and to deal with the second and third items together, since they too are interlinked.1. The Evidence of the Chief Superintendent (Grounds 1-4):The evidence of a Chief Superintendent, which is admissible pursuant to provisions of s.3(2) of the Offences Against the State (Amendment) Act, 1972, has now been the subject of a fairly significant number of cases, in the Supreme Court and this Court, and the jurisprudence in that regard is clear at this time. Section 3(2) of the said Act provides as follows:"Where an officer of An Garda Siochana, 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." The terms of this section have been considered in detail by the Supreme Court in a recent judgment, DPP v Kelly [2006] 3 IR 115, a case referred to that Court pursuant to a Certificate granted under the provisions of s.29 of the Courts of Justice Act 1924. Implicit in the granting of such a certificate is the precondition that the point of law raised is one of exceptional public importance and that it is in the public interest that such a question be referred to the Supreme Court for its determination. In that context, this Court considers that, quite apart from its binding effect on this court, the determination of the Supreme Court in DPP v Kelly, supra., is of particular significance. That Court found, unanimously, that the restriction on the right to cross-examine a Chief Superintendent as to the sources of his belief in the course of a trial, is not an infringement of the right to a fair trial guaranteed by the Constitution. Mr McGuinness, SC, on behalf of the applicant argues that in the present case, however, the trial judges erred in giving any weight to the evidence of the Chief Superintendent, even if that evidence was admissible. It is contended that the real question for the trial court in a case such as this is to examine with particularity the weight to be attached to the evidence of belief, since this was being tendered against a denial of membership on the part of the applicant, and since the belief evidence cannot be challenged in cross-examination. Mr McGuinness compares the approach adopted by the trial judges in this case to a different approach which he says was adopted in the case of DPP v Sherwin, Special Criminal Court, unreported, 15th December 2006. For the Respondent, Ms Ring, SC, argued firstly that the trial Court was assessing matters of fact, and that there were ample facts to enable it decide on the appropriate weight to be given to the belief evidence. These facts included that; the witness had 35 years service in the Garda Siochana; had been involved in the investigation of subversive crime for 29 years; and was head of the Special Detective Unit involved in the provisions of State security, the investigation and monitoring of subversive crime and the assessment of intelligence. He had not based his belief on anything that happened on the date when the offence in issue occurred, nor on matters arising thereafter. He had received information about the applicant's status in the IRA at various time, and knew the identity of all the sources of the information, none of whom had been paid, so far as he knew, and none of whom had previous convictions, so far as he knew. Further he had checked the information, which came from both garda and non garda origins, by assessing it with other information and by looking at the totality of the same emanating from different sources, verifying also whether the sources had been accurate in the giving of information in the past. Counsel further submitted that the trial court was fully alert to the role it was required to exercise in relation to the garda witness's evidence. Ms Ring also invoked a recent decision of this Court in the case of DPP vVincent Kelly, Court of Criminal Appeal, unreported, 6th December 2007, arguing that there were significant similarities between the two cases, and that in the latter case this Court had also upheld the decision of the trial judges.ConclusionThis Court is bound by the decision in the case of DPP v Martin Kelly, supra., and the earlier case of O'Leary v Ireland, [1993] 1 IR 102 which has been recognised by the Supreme Court as correctly stating the law. At the hearing before us it was clear that counsel for the applicant accepts that, in light of those cases, his argument, at least on this first ground, is directed towards the question of the weight to be attached to the statement of belief tendered, as opposed to any more underlying objection to the judgment. In essence counsel for the applicant submits that there was insufficient evidence upon which the trial judges could conclude that the evidence of belief was entitled to any weight. In that regard the written...

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