DPP v Bullman

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 28 July 2009
• Neutral Citation: [2009] IECCA 84
• Court: Court of Criminal Appeal
• Date: 28 July 2009

[2009] IECCA 84

COURT OF CRIMINAL APPEAL

Finnegan J.

Budd J.

Hanna J.

RECORD NO. 070/2007

DPP v Bullman

[2009] IECCA 84

BETWEEN

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

RESPONDENT

and

DON BULLMAN

APPLICANT

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3

HAY v O'GRADY 1992 IR 210 1992 ILRM 689 1992/2/502

OFFENCES AGAINST THE STATE ACT 1939 S30

DPP v FINNERTY 1999 4 IR 364 2000 1 ILRM 191 1999/7/1661

MURRAY v UNITED KINGDOM 1996 22 EHRR 29

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.2

DPP v GANNON UNREP CCA 2.4.2003 2003/16/3506

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S5

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

DPP v KELLY 2006 3 IR 115 2006 2 ILRM 321 2006/19/3876 2006 IESC 20

KOSTOVSKI v NETHERLANDS 1990 12 EHRR 434

DOORSON v NETHERLANDS 1996 22 EHRR 330

VAN MECHELEN & ORS v NETHERLANDS 1998 25 EHRR 647

ROWE & DAVIS v UNITED KINGDOM 2000 30 EHRR 1

DPP v MULLIGAN UNREP CCA KEANE 17.5.2004 (EX TEMPORE)

DPP v SPECIAL CRIMINAL COURT 1999 1 IR 60

DPP v BINEAD & DONOHUE 2007 1 IR 374 2006/17/3463 2006 IECCA 147

DPP v MATTHEWS UNREP CCA 14.7.2006 2006/19/3997 2006 IECCA 103

CRIMINAL LAW

Evidence

Admissibility - Arrest - Whether lawful arrest - Accused not permitted to leave vehicle while being questioned - Detention - Whether accused detained unlawfully - Right to silence - Whether breach of constitutional rights - Membership of unlawful organisation - Adverse inference - Whether adverse inference corroborative of belief - Belief evidence - Privilege - Protection of informants - Restriction on right to cross examination - Whether restriction caused prejudice to accused - Hay v O Grady [1992] IR 210, Aberdeen Green Line Steamship Co v Macken [1899] 2 IR 1, DPP v Madden [1977] IR 36, DPP v Finnerty [1999] 4 IR 364, DPP v Kelly [2006] IESC 20, [2006] 3 IR 115, DPP v Mulligan (Unrep, CCA, 17/05/04), DPP v Special Criminal Court [1999] 1 IR 60, DPP v Bineád [2007] IECCA 147, [2007] 1 IR 364, DPP v Matthews (Unrep, CCA, 14/07/06) applied; Murray v UK [1996] 23 EHRR 29, Doorson v Netherlands (1996) 22 EHRR 330, Kostovski v Netherlands (1989) 12 EHRR 432, Van Mechelen v Netherlands (1998) 25 EHRR 647, Roe v UK (2000) 30 EHRR 1 considered; DPP v Gannon [2006] IECCA 103, (Unrep, CCA, 2/04/03) distinguished - Courts of Justice Act 1924 (No 10) - Courts (Establishment and Constitution) Act 1961 (No 38), s 5 - Offences Against the State (Amendment) Act 1998 (No 39), ss 2 and 5 - European Convention on Human Rights Act 2003 (No 20) - Constitution of Ireland 1937, Article 38 - European Convention on Human Rights and Fundamental Freedoms 1950, article 6 - Leave to appeal refused (CCA 70/2007 - CCA - 28/07/2009) [2009] IECCA 84

People (Director of Public Prosecutions) v Bullman

Facts: The applicant sought leave to appeal against a conviction of membership of an unlawful organisation. The applicant was arrested following a Garda surveillance, where he was observed and apprehended outside Heuston Train Station in a vehicle with two other males. Detective Sergeant Corcoran gave evidence that whilst speaking to the applicant he observed a blue holdall bag with a red box protruding from it. That box was later found to contain a very considerable sum of sterling currency. The applicant asked the Sergeant if he could leave the vehicle in order to smoke a cigarette and the Sergeant told him that he would prefer if he remained seated. The applicant raised eight grounds of appeal, namely that the learned trial judges erred in ruling that the applicant had not been unlawfully detained at Heuston Station prior to his arrest and further erred in ruling that the arrest and detention at Heuston Station was lawful. The applicant submitted that the learned trial judges erred in ruling that there had not been a breach of the right to silence and in ruling that the court was entitled to draw adverse inferences from the answers given by the applicant to certain questions. It was also argued that the learned trial judges erred in drawing inferences consistent with guilt in respect of answers concerning the activities of the applicant at Heuston Station and from the evidence of the applicant’s associations with individuals alleged to have been involved with the IRA. The applicant further submitted that the learned trial judges erred in relying upon the belief evidence of an Assistant Commissioner which was based on privileged information.

Held by the C.C.A.; Finnegan J. (Budd, Hanna JJ) in refusing the application: 1. That the Special Criminal Court (SCC) was entitled on the evidence to make the finding that the applicant was not detained before his arrest and was at most discouraged from leaving the vehicle for a very short period of time and consequently this court should not interfere with that finding.

2. That the constitutional and convention right to silence was not absolute. The applicant herein was questioned pursuant to s. 2 of the 1998 Act, which abridged the right to silence. The SCC having heard evidence and having viewed the video recordings of the section 2 interviews and heard the applicant give evidence was entitled to draw the inferences which it drew and this court should not interfere in relation to same.

3. That the SCC was entitled to draw inferences from certain of the applicant’s answers, which it considered to be untruthful. Furthermore, it was quite clear that the SCC in arriving at its decision on the charge of which the applicant was found guilty did not take into account the events at Heuston Station.

4. That the belief evidence to the effect that the applicant was a member of the IRA was stated not to have been dependent on any matter discovered during arrest, detention or questioning of the applicant. The belief was based on documentary material over which the witness claimed privilege. However, while the material was available for inspection by the Court, the applicant did not require the court to inspect same. There was evidence before the court of trial, which it was entitled to accept, that the life, liberty or security of persons, who gave information to the Gardai concerning the applicant would be at risk if disclosure of their identity was made. There was no breach of the applicant’s convention rights.

5. That the court in reaching its verdict did not rely on the evidence of the applicant’s associations with individuals alleged to be involved in the IRA for the purposes of drawing inferences adverse to the applicant.

Reporter: L.O’S

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

2 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.

3 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 16 ^th 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.

4 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.

5 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

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

7 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.

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

9 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.

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