DPP v Conor Metcalfe

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 18 February 2021
• Neutral Citation: [2021] IECA 44
• Docket Number: [48/19]
• Court: Court of Appeal (Ireland)
• Date: 18 February 2021

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Conor Metcalfe

Appellant

[2021] IECA 44

The President

Kennedy J

Ni Raifeartaigh J

[48/19]

THE COURT OF APPEAL

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of the Court delivered on the 18 ^th day of February 2021 by Birmingham P.

1 . On 19th December 2018, following a five-day trial, the appellant was convicted of the offence of membership of an unlawful organisation contrary to s. 21 of the Offences Against the State Act 1939 (as amended) by the Special Criminal Court. He was sentenced to a term of four and a half years imprisonment and has now appealed his conviction. He had stood charged that he was, on 24th November 2015, within the State, a member of an unlawful organisation styling itself the IRA, otherwise the Irish Republican Army or Óglaigh na hÉireann.

2 . Eight grounds of appeal were formulated on behalf of the appellant. These were as follows:

• (i) The court of trial erred in accepting the prosecution proposition that the appellant had failed to answer material questions in circumstances where, by reason of temporal and other considerations, the questions were not material.

• (ii) The court of trial erred in failing to address, or address properly, the weight to be given to the evidence of the Chief Superintendent in circumstances where the Chief Superintendent insulated himself from any effective or real cross-examination.

• (iii) The court of trial erred in attaching significant weight to the opinion of the Chief Superintendent in light of the extensive and general claims of privilege in relation to all collateral questions posed by the defence.

• (iv) The court of trial erred in failing to exclude evidence in respect of alleged associations with persons not convicted of membership of an unlawful organisation.

• (v) The court of trial erred in admitting and having regard to the Chief Superintendent's belief in circumstances where the nature of the privilege claimed by him left open the possibility that the belief was formed on the basis of the same material in respect of which the accused was questioned during the course of section 2 interviews, and in respect of which his non-responsiveness to those questions was relied upon as collaboration.

• (vi) The court of trial erred in law and in fact in upholding general or blanket claims of privilege in relation to general matters and further failed to give any or any cogent reason for its decisions.

• (vii) The court of trial erred in law and in fact in failing to withdraw the case from further consideration at the close of the prosecution case.

• (viii) The court of trial erred in law in failing to impose an appropriate sentence.

The Trial

3 . There were two main elements to the prosecution case at trial. First, there was the opinion or belief evidence of a Chief Superintendent admissible pursuant to s. 3(2) of the Offences Against the State (Amendment) Act 1972, and secondly, the Court was invited to (and did, in fact) draw adverse inferences from the failure of the appellant, when questioned, to answer what were contended to be material questions. In these circumstances, the appellant has grouped or clustered the grounds formulated into two general grounds; a ground relating to the belief evidence of the Chief Superintendent and a ground relating to the interviews that were conducted pursuant to s. 2 of the Offences Against the State (Amendment) Act 1998.

4 . In the course of her opening statement, counsel indicated that the fulcrum of the case would be the opinion evidence of Chief Superintendent Tony Howard. As to the supporting evidence required as a result of the Supreme Court decision in Redmond v. Ireland [2015] 4 IR 84, it is said that the appellant was arrested at his home in Clondalkin on 24th November 2015 and was detained. During the course of his detention, the appellant was interviewed on two separate occasions when the provisions of s. 2 of the Offences Against the State (Amendment) Act 1998 were invoked. Counsel indicated that the Court would be hearing evidence which would be relevant to the Court's assessment of the materiality of the questions that were asked during those two interviews. She said she was making it clear, and had made it clear to the defence in the opening of the case, that she was not asking the Court to view evidence, which she was contending is relevant to the question of materiality of questions, as being a separate and distinct pillar of evidence which, in and of itself, was probative of the charge before the Court.

5 . The appellant is very critical of the approach of the Director in contending and asserting that evidence was being put before the Court for one purpose only, namely, to establish the materiality of questions asked during detention, but in a situation where the prosecution was disavowing any reliance being placed on the evidence, as itself offering support to the opinion belief evidence of the Chief Superintendent. The prosecution approach is described as “Jesuitical” and as amounting to casuistry. Before addressing those criticisms, it is appropriate to review just what that evidence was.

The Evidence before the Special Criminal Court

6 . Evidence was led of the appellant's involvement in the movements of a stolen van prior to and on 3rd June 2014, during the course of which he was observed in the company of Mr. Kenneth Donoghue, a convicted member of the IRA. Mr. Donoghue had been convicted of the offence of membership of the IRA before the Special Criminal Court in October 2002. The vehicle in question, a white Renault Kangoo bearing registration number 08-D- 58643, was a stolen vehicle and the registration plates were false. On 3rd June 2014, the van was parked at Claremont Court, Glasnevin, in Dublin. At that stage, surveillance was being undertaken by members of the National Surveillance Unit. On that morning, the accused left his house and met nearby with Mr. Donoghue in the Clondalkin area. Mr. Donoghue and the accused travelled to the Blanchardstown Shopping Centre via the Nangor Road area where they met up with a third man, Mr. David Quinn. The three men then left in a blue BMW driven by Mr. Donoghue and at 12.20pm, they travelled to Claremont Court, Glasnevin via the Navan Road area. The three men left Claremont Court in the BMW and drove into the Glasnevin Industrial Estate where Mr. Quinn walked around for a short time. The three men then drove back to Claremont Court in the BMW. The three men arrived back at that location at 12.44pm. The accused, now appellant, got out of the BMW and went to the stolen Renault Kangoo. He got onto his hands and knees and retrieved the key of the van by rummaging in the area of the front wheel arch. The accused then drove the stolen Kangoo van from Claremont Court, in convoy with the BMW that was being driven by Mr. Donoghue, from Glasnevin, from the Clonee Exit of the N3, and thereafter, on the R149 in the direction of Newcastle. The Kangoo was later parked by the accused at Maplewood Road, Tallaght.

7 . On the evening of 4th June at 8.40pm, the van that had previously been parked at Maplewood Road by the appellant was driven at that location by a Mr. Dean Byrne of Drumcairn Park. The van drove down Cookstown Way and into Birchwood Heights where it reversed into house no. 1. Mr. Byrne opened the rear doors of the van and another male got out, following which there was interaction between these two males in the area between the open doors of the van and the door of house no. 1. The van then drove to the Belfry Estate, arriving there at 9.00pm, by which time the windows of the rear door had been blackened or screened off. The van came to a stop thereafter and Mr. Byrne was later seen walking along the N82 towards the N81 and back towards Tallaght. At 8.25am on 5th June 2014, the Renault Kangoo was moved from Belfry Downs to Glenshane Crescent, Tallaght, where it was parked. There was a male in the front and a male in the back of the van. Members of An Garda Síochána intervened. Following the intervention, Mr. Byrne of Drumcairn Park was found in the driver's seat of the van, and a Mr. Michael Finlay of Maplewood Road, Tallaght, was found in the rear of the van. Also in the rear of the van was a handgun. Mr. Finlay was dressed in an An Post uniform. A semi-automatic pistol and a magazine with ammunition was found on the rear floor of the van, together with a holdall containing disguises; spectacles, beards, glasses and there was also a bicycle. Messrs. Byrne and Finlay were convicted of offences involving the unlawful possession of firearms and ammunition by the Special Criminal Court on 16th June 2016. The sentence hearing in the Special Criminal Court was told that both men were engaged in the operation that had been frustrated by Gardaí in furtherance of the activities of the IRA.

8 . On 14th September 2014, the appellant was observed associating with Mr. Eddie O'Brien of Hazelcroft Road, Finglas, at the Maple Shopping Centre in Cabra, and later at the Hampton Green Estate on the Navan Road. On 29th June 2018, Mr. O'Brien was convicted by the Special Criminal Court of being a member of the IRA. On the same evening, 14th September 2014, Mr. Donoghue was seen walking around the Russell Lawn area of Tallaght at 11.30pm and his blue BMW was seen parked outside the address of the accused at 23, Monastery Rise, Clondalkin, at 12.15am. The accused was then seen in conversation with Mr. Donoghue in the driveway of the accused's home.

9 . On 7th August 2015, the accused was observed associating with Mr. David Nooney of Coultry Green, Ballymun, at the carpark of McDonald's in the Blanchardstown Shopping Centre. On 29th June 2018, Mr. Nooney was convicted by the Special Criminal Court of the offence of membership of the IRA, the offence having been committed on 8th August 2015, one day after...