DPP v Connolly

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date26 June 2018
Neutral Citation[2018] IECA 201
Docket NumberRecord No. 226/2017,[C.A. No. 226 of 2017]
CourtCourt of Appeal (Ireland)
Date26 June 2018
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND–
MICHAEL CONNOLLY
APPELLANT

[2018] IECA 201

Record No. 226/2017

THE COURT OF APPEAL

Crime & sentencing – Offences against the State – Membership of unlawful organisation – Appeal against conviction – Belief evidence – Section 3(2) of the Offences Against The State (Amendment) Act 1972

Facts: The appellant had been charged with membership of an unlawful organisation after being seen with a person in possession of explosive devices. Evidence at trial was given by Garda Assistant Commissioner that he believed the appellant to be a member of the IRA, and a claim of privilege asserted as to the material relied upon to form that belief. The appellant was convicted and now appealed claiming inter alia that the trial Court had failed to properly examine privileged documentation.

Held by the Court that the appeal would be allowed. The Court considered section 3 of Offences against the State (Amendment) Act 1972 and the reasons given by the trial Court for refusing to examine the privileged material. The Court was satisfied the reasons stated were insufficient to justify such a refusal, particularly where the belief evidence was a significant factor in finding the appellant guilty of the charge. Submissions were invited as to the merits of a re-trial.

JUDGMENT of the Court delivered on the 26th day of June 2018 by Mr. Justice Mahon
1

Having pleaded not guilty the appellant was tried by the Special Criminal Court over a period of fourteen days commencing on the 9th May 2017 and was, on the 1st June 2017, convicted of one count of being, on the 16th day of December 2014, a member of an unlawful organisation, to wit, an organisation styling itself the Irish Republican Army otherwise Óglaigh na hÉireann, otherwise the IRA, contrary to s. 21 of the Offences Against the State Act 1939 as amended by s. 48 of the Criminal Justice (Terrorist Offences) Act 2005. The appellant was sentenced on the 9th May 2017 to a term of imprisonment of three years to date from the 5th April 2017. The appellant has appealed his conviction.

2

On the date in question, the 16th December 2014, the appellant was seen in the company of a co-accused who was on that day found to be in possession of improvised explosive devices. The appellant was arrested and detained and refused to answer questions in relation to his alleged membership of the IRA in the context of questioning pursuant to s. 2 of the Offences Against The State (Amendment) Act 1998.

3

Twenty one grounds of appeal have been notified to this court. For convenience, and having regard to the approach adopted in the appellant's written submissions, these grounds have been grouped together under the following headings:-

(1) Grounds 1 to 9 and 17:

The trial court's refusal to examine privileged documentation grounding belief evidence pursuant to s. 3(2) of the Offences Against The State (Amendment) Act 1973.

(2) Grounds 10 to 13:

Belief evidence of Assistant Commissioner O'Sullivan.

(3) Ground 14:

Error as to fact.

(4) Ground 15:

Flawed circular approach to the evidence by the trial court.

(5) Ground 16:

Conclusions regarding accused's attitude to section 2 questioning.

(6) Ground 18:

Mobile phone evidence (seizure of evidence).

(7) Ground 19:

Failure to withdraw case at close of prosecution case.

(8) Grounds 20 and 21:

Absence of evidence that conduct on the 16th December 2014 connected to IRA membership and verdict against weight of the evidence.

The trial court's refusal to examine privileged documentation
4

Section 3(2) of the Offences Against The State (Amendment) Act 1972 (as amended) provides as follows:-

'Where an officer of the Garda Síochána, 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.'

5

This is commonly referred to as belief evidence in membership prosecutions. In this case such evidence relating to the appellant was given by Assistant Commissioner Michael O'Sullivan. He gave evidence that it was his belief that on the 16th December 2014 the appellant was a member of an unlawful organisation. He stated in the course of his direct evidence:-

'..On the basis of confidential information available to me I believe that Michael Connolly born on the 20th of May 1971 of 64 Grange Park, Dundalk is within the State a member of an unlawful organisation styling itself as the Irish Republican Army otherwise known as Óglaigh Na hÉireann otherwise known as the IRA. And I believe that he, Michael Connolly, was a member of that organisation on the 16th of December 2014. I do not base this belief on any matter discovered during or subsequent to his arrest or on any statement, admissions or information in the course of his detention or this investigation.'

6

In the course of cross examination, Assistant Commissioner O'Sullivan said that the material or documentation on which he relied had come into his possession following the retirement of a colleague, Detective Chief Superintendent Kirwin.

7

A claim of privilege in respect of the said material was maintained. Prior to the commencement of these proceedings, in response to a request for access to that material by the appellant's solicitor the claim of privilege was made for the first time in the course of the following written response to that request:-

'We are advised that Assistant Commissioner Michael O'Sullivan will be giving his statutory belief that Michael Connolly, 64 Grange Drive, Dundalk, County Louth is a member and was a member of an unlawful organisation styling itself as the Irish Republican Army otherwise Óglaigh Na hÉireann, otherwise the IRA on the 16th of December 2014 and will be making a claim of privilege in respect of his belief based on all the material in his possession and based on the following grounds (a) protection of life (b) the material relates to the security of the State (c) if the content of the material became known it might facilitate the commission of further offences or alert persons or illegal organisations are ongoing or future garda operations, (d) the material would likely be of assistance to members of unlawful organisations and criminals by revealing the methods employed in combating crime and terrorism. We confirm that this statement of evidence has been forwarded to you under cover of Notice of Additional Evidence dated the 20th April 2017.'

8

Further cross examination of Assistant Commissioner O'Sullivan brought repeated claims of privilege by him in relation to the material on which he based his belief of the appellant's membership of an unlawful organisation.

9

Mr. Hartnett SC, counsel for the appellant, sought to challenge the claim of privilege made by the Assistant Commissioner. In the course of an exchange between himself and the trial court, Mr. Hartnett stated:-

'..you have to rule on this and you have to rule, keeping in mind that there must be fairness in the trial. And if this Court is going rule that, as is usual, somebody can get into the witness box and repeat the mantra that is repeated in every case, 'I will not answer any questions whatsoever, even in the most general of terms, and that's good enough for us.' Well, that is bringing the matter further down the road and it is an effective deprivation of cross examination and a fair trial. As I say, this is a very preliminary matter and we accept that of course issues of privilege may arise, that if there is documentation on the file from an informer, clearly we cannot see it, that it may have consequences but we cannot see it. Possibly if there is - well, there must be other examples. That is not what we are addressing at the moment. We are addressing a bland, general refusal to answer any questions in relation to collateral matters, whether the integrity and credibility of this opinion can be examined; that is why I quoted from the decision as given by the Court of Appeal in Donnelly.'

10

Mr. Hartnett went on to further state:-

'..the question arises, and I ask it rhetorically, do I have the right to cross examine? And I think the answer to that must be yes. Is the witness entitled to claim privilege in relation to some matters? The answer to that must be yes. The question arises here, does the question of privilege arise, that this Court must examine whether the question of privilege can arise in relation to a simple question as to for how long, over what period of time these observations or materials exist. In no way could that be a breach of privilege. He, the witness refuses to answer whether some of the material on the file comes from observations by the SDU, as opposed to 'bobbies on the street' ordinary guards. Again, I ask on what basis - he who claims privilege in relation to that - how can that be privileged? I ask rhetorically, how can that be privileged?'

11

Miss Murphy BL on behalf of the respondent stated:-

'Well, just very briefly, I think it's very unfair to characterise the evidence of the Assistant Commissioner as a bland assertion of privilege. He made specific references to specific concerns that he had, and that's why he claimed privilege on those specific questions...In fact, he made specific references to concerns about information being used by a small oath-bound society, that this information could have consequences for concern individuals, or for methodology in relation to the investigation that was carried out.'

12

On Day 8 of the trial, an initial ruling was given by the trial court. It stated:-

'..The most recent issue of this trial is narrow and concerns whether the Court ought to compel further answers to various questions posed by Mr Hartnett to Assistant...

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