DPP -v- Don Bullman, [2009] IECCA 84 (2009)

Docket Number:70/07
Party Name:DPP, Don Bullman
Judge:Finnegan J.
 
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COURT OF CRIMINAL APPEAL

RECORD NO. 070/2007

Finnegan J.

Budd J.

Hanna J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

and

DON BULLMAN

APPLICANT

Judgment of the Court delivered on the 28th day of July 2009 by Finnegan J.

The applicant was charged before the Special Criminal Court on a single count of membership of an unlawful organisation, contrary to section 21 of the Offences against the State Act, 1939, as amended by section 2 of the Criminal Law Act 1976. He was found guilty and sentenced to four years imprisonment. He seeks leave to appeal against his conviction.

The circumstances leading to the arrest and charge of the applicant were as follows. A Garda surveillance operation took place in the vicinity of Heuston Station, Dublin, on the 16th February 2005. At approximately 3 p.m. the applicant was standing at the front of Heuston Station carrying a small blue rucksack. A black jeep pulled up and the applicant got into the rear of the same which then drove towards the car park to the rear of the station. There were two other males in the jeep. Gardai followed the jeep. At approximately 3.10 p.m. Detective Sergeant Corcoran and Detective Garda Higgins approached the vehicle and identified themselves. They spoke with the driver and both front seat passengers. Detective Sergeant Corcoran spoke to the applicant: as he could not hear what the applicant was saying he opened the rear door to speak to him. There was a blue holdall bag with a red box protruding from it. The box was subsequently found to contain a sum of sterling £94,250. Detective Sergeant Corcoran then returned to his own car to make phone calls, checking on details in relation to the vehicle and the identity of the persons in it. He then returned to the jeep and arrested the occupants.

At some point during his dealings with the applicant, the applicant asked Detective Sergeant Corcoran if he could leave the vehicle for a cigarette. Detective Sergeant Corcoran told the applicant that he would prefer if he stayed seated.

Prior to the surveillance operation the Gardai were briefed that members of the IRA were to have a meeting at Heuston Station that afternoon, that one of the persons to be present was the applicant and that the meeting was to facilitate the transfer of money taken in the Northern Bank robbery of the previous December and that the money was concealed in a Daz washing powder box.

Grounds of Appeal

On the application eight grounds of appeal were relied upon as follows:-

  1. The learned trial judges erred in law in ruling that the applicant had not been unlawfully detained at Heuston Station prior to his arrest at all.

  2. The learned trial judges erred in law in ruling that the applicant's arrest and/detention at Heuston Station was lawful.

  3. The learned trial judges erred in law in ruling that there had not been a breach of the applicant's right to silence guaranteed under either the Constitution and/or in violation of the European Convention on Human Rights having regard to the manner in which section 2 of the Offences against the State (Amendment) Act 1998 was implemented.

  4. The learned trial judges erred in ruling that the answers given by the applicant in response to questions asked of him entitled them to draw any adverse inferences or inferences of such nature as would entitle a court to convict him of the charge preferred against him.

  5. The learned trial judges erred in drawing inferences consistent with or probative of guilt in respect of answers to questions concerning the activities of the applicant at Heuston Station when there was no admissible evidence before the court to prove that the said activities amounted to crimes or activities committed by a prescribed organisation.

  6. The learned trial judges erred in relying upon the belief evidence of an Assistant Commissioner in the absence of the existence or application of any or any appropriate independent judicial mechanism to scrutinise the basis of the privilege claimed over the material relied upon to ground the opinion.

  7. The learned trial judges erred in relying upon the belief evidence of the Assistant Commissioner because such evidence was based on privilege, was in violation of the right to cross-examine a witness and/or the duty of disclosure and/or the principle of equality of arms and/or the right to a fair trial as guaranteed under the Constitution or the European Convention on Human Rights.

  8. The learned trial judges erred in relying on or drawing an adverse inference from the evidence of the applicant's associations with individuals alleged to be involved in the IRA.It is proposed to deal with each of these grounds in turn. However it will be convenient to deal with Grounds 1 and 2 and Grounds 6 and 7 together.

    The role of an appellate court

    The Court of Criminal Appeal was established by the Courts (Establishment and Constitution) Act 1961 section 5. The Courts of Justice Act 1924 provides that where a certificate or leave to appeal is granted it shall be heard and determined by the Court of Criminal Appeal on a record of the proceedings at the trial and on a transcript of the same verified by the trial judge but with power to hear new or additional evidence which power is not relevant in this case. Thus the court is an appellate court, and like the Supreme Court, does not rehear oral evidence but rather arguments based upon the findings of fact, including arguments that the findings are unsupported by evidence, itself a question of law. The role of the court accordingly is analogous to that of the Supreme Court. The role of the Supreme Court on the hearing of appeals was dealt with in Hay v O'Grady [1992] I.R. 210 by McCarthy J as follows:-

    "The role of the court, in my view, may be stated as follows:-"1. The appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.2. If the findings of fact made by the trial judge are supported by credible evidence, this court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

  9. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact (see the judgment of Holmes L.J. in 'The Gairloch', Aberdeen Green Line Steamship Co. v Macken [1899] 2 I.R. 1 cited by O'Higgins J. in The People (Director of Public Prosecutions) v Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.

  10. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference - in a case of this kind was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and neither on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual involved was erroneous, the order will be varied accordingly.

  11. These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inference to be drawn and the conclusion that follows."These principles apply to the Court of Criminal Appeal subject however to the different standard of proof and the presumptions in favour of an accused person which apply in criminal trials.

  12. The learned trial judges erred in law in ruling that the applicant had not been unlawfully detained at Heuston Station prior to his arrest at all.

  13. The learned trial judges erred in law in ruling that the applicant's arrest and detention at Heuston Station was lawful.

    The evidence before the court was as follows. In the course of a surveillance operation and relying on information the Gardai were at Heuston Station, Dublin, on the 16th February 2005. At approximately 3 p.m. the applicant was seen by Detective Sergeant Ciaran Hoey standing at the front of Heuston Station carrying a small blue rucksack. A black jeep pulled up and the applicant got into the rear of the same which then drove towards the rear of the station. There were two other males in the jeep. Detective Sergeant Corcoran and Detective Garda Higgins went to the rear of the station at approximately 3.10 p.m. They approached the jeep, identified...

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