D.P.P.-v- Joseph Fee,  IECCA 102 (2006)
COURT OF CRIMINAL APPEAL242/04
Between:The People at the Suit of the Director
of Public Prosecutions -and-
Judgment of the Court delivered on the 13th day of July 2006 by Macken J.
The Applicant appeared before the Special Criminal Court, together with several co accused, arising out of events which occurred in the month of June 2003, in Co. Louth. He was charged with offences involving possession of explosive substances, contrary to the Explosive Substances Act 1883, as substituted and amended by subsequent legislation. The trial took place before that court (O'Donovan J., J. Matthews, and Malone D.J.) and lasted eleven days. The Applicant was found guilty of two charges, and was sentenced on the 8th December 2004 to 7 years in respect of the charge of possession of explosive substances contrary to s.4, and to 10 years in respect of the charge of possession of explosive substances contrary to s.3, both of the above Act as amended, the sentences to run concurrently. As against those sentences, the Director of Public Prosecutions has applied to this court pursuant to S. 2 of the Criminal Justice Act 1993 Act, ("the Act of 1993" ) alleging that the sentences imposed were unduly lenient. The Applicant has also appealed against severity of sentence. Having regard to the fact that the Applicant appeals his conviction, the applicant's appeal against sentence as well as the application of the Director are deferred, and may if appropriate, be dealt with at a later date.
The Background Facts
The background facts are of particular relevance to set in context the grounds relied on by the Applicant in this application, as well as the response of the Respondent. According to the evidence adduced, admitted, or proved, as synopsized in the submissions of the Applicant as well as those of the Respondent, the following are the relevant background matters:
1 The charges arose out of a garda operation which took place in County Louth in the month of June 2003. This involved members of the Emergency Response Unit, the Crime and Intelligence Unit and the Local Garda Siochana, all under the command of an Assistant Commissioner.
2 This garda operation included the surveillance of certain people, including the Applicant, over two days, and centred around two farms, the first one being off the Dundalk to Iniskeen Road and the second being located about eight miles away to the south. The first farm is known as Thornfield, ("the Thornfield farm") and the second as Tallanstown ("the Tallanstown farm"). The garda surveillance and operation also covered the homes of certain people, including that of the Applicant, as well as the public roads in the area.
3 A chronology of events surrounding the surveillance, as established in evidence, is as follows:(a) The garda surveillance operation took place over a two day period on the 12th and 13th of June, 2003.
(b) On the morning of the 12th June 2003 two co-accused hired a cement mixer, which they drove to the Applicant's home and left there.
(c) At lunch time on the same day the Applicant met a man, Terence Cassidy, in a pub called the Valley Lodge. There the Applicant requested Terence Cassidy to purchase sugar. The Applicant and Terence Cassidy drove to a Cash and Carry outlet where several bags of icing sugar were purchased. Terence Cassidy put the charges for the sugar on an account which he had at that outlet. The Applicant took the bags of sugar.
(d) On the morning of the 13th June 2003, the Applicant drove his vehicle, a white Citroen van from his home at Newtownbalregan, close to Dundalk, to the Tallanstown farm. A co-accused, Seamus McKenna, was his passenger. Shortly afterwards the Applicant was seen driving his white Citroen van, alone, along the public road leading to the Thornfield farm, followed by a stolen white Peugeot van.
(e) On that morning also, a meeting took place on the Newry Road when the Applicant met another two co-accused, Gregory Trainor and Eamon Mathews.
(f) On the same morning the Applicant requested Terence Cassidy, to purchase seven more bags of icing sugar. This was done and the sugar was brought by Terence Cassidy to the Applicant's home at about 12.30 pm on that day. The Applicant arrived and met Terence Cassidy there.
(g) At about 12.45 pm on the 13th June 2003 a Detective Garda Ryan commenced surveillance in a field opposite the rear of the Thornfield farm. He heard music coming from a shed at the back of the Thornfield farm, and he saw the white Peugeot van parked with its rear inside the shed. He remained in radio communication with colleagues in the vicinity of the Thornfield farm.
(h) At 1.15 pm on that day he saw the Applicant arriving by vehicle at the same shed at the back of the Thornfield farm, speaking with his co-accused Seamus McKenna and Gregory Trainor at the shed which he left shortly afterwards.
(i) At 1.30 pm on that day Detective Garda Ryan saw the Applicant return in his vehicle to the shed at the back of the Thornfield farm and drive away again a short time later.
(j) Immediately afterwards members of An Garda Siochana moved in on the Thornfield farm. There they found two co-accused, Gregory Trainor and Seamus McKenna, in the process of operating a cement mixer containing a brown substance, later analysed as being ammonium nitrate (originating from crushed fertiliser) and icing sugar. At the shed also was the white Peugeot van previously mentioned, which was found to contain a large canvas bag of brown powder. This bag's contents, on analysis, proved to have the same composition as the material found in the cement mixer. There were also a number of buckets containing the same substance, and a number of fertiliser bags, some opened and some unopened. There were also four unopened 3 kilo bags of icing sugar as well as nine 3 kilo empty icing sugar bags.
(k) The combined weight of the explosives found at the Thornfield farm was 500 kilos.
(l) Just as this raid was taking place at the Thornfield farm, gardaí intercepted the Applicant on the road close to the Thornfield farm driving his white Citroen van. He attempted to evade capture but was stopped and arrested. In this van was found a bucket containing a brown substance, later analysed as consisting of ammonium nitrate and sucrose, as well as some corn husks.
(m) At 2.45 pm on the 13th June 2003 gardaí from the same surveillance operation then searched the Tallanstown farm and in a shed on this farm found a corn grinder and a quantity of fertiliser bags. In the chutes of the corn grinder there was a brown powder which, when analysed, was found to consist of ammonium nitrate and sucrose. This, on analysis had the same composition as the substance found in the Applicant's Citroen van. The evidence of both Terence Cassidy and of Detective Garda Ryan was challenged by the Applicant, and so too were the conclusions or inferences sought to be drawn from facts proved or established arising from the above chronology. In the course of the trial the Applicant, as is his right, did not give evidence. Grounds of AppealThe lengthy series of grounds upon which this application for leave to appeal is based has been helpfully broken down by counsel for the Applicant into the following: 1 The court's treatment of the evidence of Terence Cassidy.
2 The failure to adopt fair procedures concerning evidence of clothing allegedly worn by the Applicant;
3 The preservation of the scene at which the Applicant was arrested;
4 The admission of hearsay evidence;
5 The failure to adopt a "Casey (No.2)" type warning in respect of identification.
6 The absence of proper proof of the required intent within the provisions of s.3 of the Act of 1883, as amended.
To put these grounds as well as the arguments of both parties into context, it is important also to set out the case made by the prosecution against the Applicant, which proceeded on the basis of the claimed cumulative effect against him of separate pieces of circumstantial and/or supporting evidence which, subject to what is said below, were accepted by the trial court as having been established, and which included the following: A The delivery of the cement mixer found at the Thornfield farm to the Applicant's home by two co-accused Eamon Mathews and Seamus McKenna on the 12th June 2003. The prosecution adduced evidence that this cement mixer had been hired by Eamon Mathews and Seamus McKenna at Dromad Hire in Dundalk on the morning of 12th June 2003.
B The purchase of thirteen 3 kg bags of icing sugar on behalf of the Applicant, who twice requested Terence Cassidy to purchase sugar, on the 12th and then again on the 13th June 2003. The sugar purchased at his request, in terms of bags, corresponded precisely with the number of full and empty sugar bags found at the Thornfield farm on the 13th June 2003.
C The Applicant's involvement in a transport "convoy". Between 8.40 am and 9.05 am on the 13th June the Applicant drove his white Citroen van from his home, with a co-accused Seamus McKenna as a passenger, to the Tallanstown farm. The Applicant was then seen driving alone in the Citroen van from the Tallanstown farm followed by the stolen white Peugeot, in which explosives were ultimately found when the gardaí raided the Thornfield farm.
D The Applicant was sighted on the Newry Road between 8.40 am and 9.05 am on the 13th June 2003, where he met with and was in the company of, two co-accused, Seamus McKenna and Eamon Mathews, as well as another person.
E The Applicant was present in the shed at the Thornfield farm on two occasions shortly prior to the raid there and to his arrest, having been sighted between 1 pm and 1.30 pm on the 13th June, 2003 by Detective Garda Ryan who had taken up position in a field behind the Thornfield Farm. The Applicant first arrived at 1.15 pm, got out of his Citroen van and went into the shed and spoke with his co-accused, Seamus McKenna and Gregory Trainor. He then...
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