D.P.P.-v- Michael McKevitt, [2005] IECCA 139 (2005)

Docket Number:174/03
Judge:Kearns J.
 
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Kearns J.O'Donovan J.O'Sullivan J.THE COURT OF CRIMINAL APPEAL[174/2003]BETWEENTHE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTANDMICHAEL MCKEVITTAPPELLANTJUDGMENT of the Court delivered the 9th day of December, 2005, by Kearns J. The appellant was charged before the Special Criminal Court on two counts, namely:-(a) Membership of an unlawful organisation styling itself the Irish Republican Army between the 29 August, 1999 and 28 March, 2001, contrary to s.21 of the Offences against The State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976, and(b) Directing the activities of an organisation styling itself the Irish Republican Army between the 29 August, 1999 and 23 October, 2000 in respect of which organisation a Suppression Order has been made under s.19 of the Offences against The State Act, 1939 contrary to s.6 of the Offences against The State (Amendment) Act, 1998.After a trial lasting 27 days, the appellant was convicted by the Special Criminal Court on both counts on the indictment on 6 August, 2003. On 7 August, 2003, the appellant was sentenced to 6 years imprisonment on Count No.1 and to 20 years imprisonment on Count No.2, each sentence to run concurrently and to date from the date of the appellant's arrest, namely, 29 March, 2001.For a number of reasons, this was a criminal trial without precedent. The charge of directing the activities of an unlawful organisation was the first such charge to be brought within this jurisdiction by virtue of an amendment to the Offences Against the State Act, 1939, which had been introduced in the aftermath of the Omagh bombing. Secondly, the trial was one which required disclosure of documentation from overseas intelligence agencies in the US and the UK. This arose because the main evidence in the case was that of Mr. David Rupert, a US citizen from New York David Rupert initially came to Ireland in 1992 as a tourist with no Irish antecedents but in a relatively short time became interested in Irish republican affairs through his then partner, Linda Vaughan. This involvement was notified by the Irish police to the Federal Bureau of Investigation (FBI) who thereafter recruited David Rupert as an intelligence agent because of his perceived value in providing information about Irish Republican activities. The direct evidence of David Rupert commenced on the third day of the trial and concluded towards the end of the sixth day. David Rupert was then subjected to a cross-examination of virtually unprecedented length, which focused almost entirely on the witnesses' credibility and which concluded on day twenty of the trial. That portion of the cross-examination which addressed David Rupert's contacts with the appellant commenced only on day 19 of the trial, the cross-examination up to that point having focused entirely on David Rupert's past history and associations, including those with the FBI and the British Security Service (BSS).At the outset it may be said that the present appeal did not seek to impugn the propriety of the conviction of the appellant in respect of the offence of membership of an unlawful organisation. Other than a suggestion that the two counts should have been severed and a separate trial directed in respect of each, the entirety of the appeal was addressed to the conviction recorded against the appellant in respect of directing the activities of the Real IRA.While some 42 grounds of appeal were advanced in the Notice of Appeal, counsel for the appellant helpfully indicated to the court at the outset that the various grounds of appeal could effectively be considered under three main headings as follows:-(a) Alleged failure by the prosecution to ensure adequate disclosure.(b) The Special Criminal Court should not have found that David Rupert was a credible witness whose evidence could be safely relied upon.(c) There was prejudice and unfairness to the appellant in the course of the trial arising from late disclosure of a garda surveillance report relating to events on 17 February, 2000.The court proposes to deal firstly with these three main issues, then deal separately with the contention that the two counts in this case should have been severedBackgroundDavid Rupert is a US citizen from Potsdam in New York who by any standards is an unusual and remarkable individual. A man of 6'7" in height, he told the court that he was 51 years of age and four times married. His formal education ended in 1968 when he was 16 years of age, following which he worked in the construction industry and later in forestry and life-assurance. Following a brief period in the logging business, he then went into the trucking business.In 1974 he was charged with criminal offences for writing bad cheques, but two charges which had been brought against him were dismissed. He filed for bankruptcy in 1974, though this bankruptcy process did not proceed to adjudication. He also became a police informer at that time and gathered information which subsequently led to drug prosecutions of certain individuals. He agreed in the course of his evidence that he had been arrested in 1976 in Alabama when a fellow- trucker with whom he was then working picked up an underage female hitchhiker. His fellow-trucker then had a sexual relationship with the girl for about a week. David Rupert was charged with no offence arising from this incident and was released after a brief period of questioning.David Rupert confirmed he had further bankruptcy proceedings when his business ventures failed in 1984. They arose in the context of a house sale where he was paid in cash but where the purchaser moved in before the purchase monies were paid over. A local bank obtained a judgment against him in respect of an outstanding mortgage on the house and subsequently various assets of David Rupert were seized to pay off the judgment. David Rupert accepted in evidence that he had left various people "high and dry" at that time, following which he spent a year in Florida. During this period he explored the possibility of establishing an off-shore gambling operation in which questions would not be asked about the sources from which gamblers drew their funds. Various meetings were set up in Florida with potential investors to explore this possibility. In that context David Rupert agreed that he brought down from New York as a potential adviser a man called Skelsi whom he described as a "mob lieutenant". This project went nowhere, because none of the proposed parties to the project had any money.David Rupert accepted he had outstanding tax liabilities to the IRS in the US and other debts from that time which he was unable to pay off. He maintained however that he continued over the years to make returns to the IRS even when payments were in arrears. He also accepted that, with the passage of time, the penalties for non-payment meant his liability grew to such a degree that flight from the US was something he actually considered in 1992.He developed a trucking operation business on his return from Florida in 1986, but was again involved in bankruptcy proceedings in 1992 when TAI, the corporate entity through which the business operated, sought Chapter 7 protection. These bankruptcy proceedings were commenced prior to a serious trucking accident in Kentucky which effectively brought the trucking business to an end at the end of December, 1992. The activities of the corporate entity TAI were investigated by the FBI for possible fraudulent trading but ultimately a declination to prosecute was taken by the FBI in 1995.David Rupert first came to Ireland in early 1992 with his then girlfriend, Deborah Murphy. It was the first of about 25 visits. He was again back in Ireland in August 1992, this time with Linda Vaughan, who became his second wife, and who had a keen interest in Irish Republican affairs. She spoke at a hunger-strike commemoration ceremony in Bundoran on that visit, during which visit he met a number of prominent Republicans.In the course of time these associations came to the attention of the gardaí who in turn contacted the FBI in the United States. In 1994, David Rupert received a visit in his office in the US from FBI Agent Patrick Buckley who invited David Rupert to provide information to the FBI in relation to his Republican contacts in Ireland. In late1994, Rupert agreed to provide such information on the basis the FBI would cover his expenses for travel to and from Ireland. It appears that the FBI section to which Buckley belonged was different from that which was involved in the inquiry into possible fraud in TAI.On the occasions of visits to Ireland in 1994, David Rupert mainly associated with republicans in the Bundoran/Sligo area, including Joe O'Neill and Vincent Murray. As a result of these contacts, Rupert became involved in fundraising activities in North America, and also achieved a position of trust within Republican Sinn Fein to the extent that he was entrusted to carry sums in cash on behalf of that branch of the Republican movement.In 1996 he sought and obtained assistance from the FBI to purchase a pub called the Drowes bar in Tullahane. The FBI provided $8,500 to enable him take the lease. However, having taken the lease and having traded for a few months he realised in October, 1996 that this business would not succeed and he returned to America.He was placed under written contract by the FBI in February, 1997. He was offered $2,500 per month together with reasonable expenses for those months in respect of which he provided information. In June, 1997 he met representatives of the British Secret Security Services at Buckley's request and developed contacts with that service also. He went on their payroll also.From 1997 onwards David Rupert used encrypted e-mails to report to both the FBI and BSS.He attended the Republican Sinn Fein Ard Fheis in both 1997 and 1998 and met a Michael Donnelly, whom he had met previously, at this latter Ard Fheis. According to David Rupert's...

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