DPP v Eamonn Matthews

JurisdictionIreland
JudgeMacken J.
Judgment Date14 July 2006
Neutral Citation[2006] IECCA 103
CourtCourt of Criminal Appeal
Docket Number[CCA No. 236 of
Date14 July 2006

[2006] IECCA 103

THE COURT OF CRIMINAL APPEAL

Macken J.

Herbert J.

Haugh J.

236/04
DPP v MATTHEWS

Between:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
-and-
EAMON MATTHEWS
Applicant

EXPLOSIVE SUBSTANCES ACT 1883

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S5

CONSTITUTION ART 38

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

DPP v O'CALLAGHAN 2001 1 IR 584 2001 2 ILRM 184

LYNCH v JUDGE MORAN & DPP 2006 2 ILRM 447

HAUGHEY, IN RE 1971 IR 217

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

O'LEARY v AG 1993 IR 102

DPP v KELLY 2006 2 ILRM 321

COURTS OF JUSTICE ACT 1924 S29

KOSTOVSKI v NETHERLANDS 1989 12 EHRR 434

DOORSEN v NETHERLANDS 1996 22 EHRR 330

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

CRIMINAL LAW:

Evidence

Offences against State - Membership of unlawful organisation - Conviction in Special Criminal Court - Issue estoppel - Natural justice - Evidence of belief of superintendent- Whether obliged to answer questions on basis of belief - Prior acquittal on different charges - Whether evidence from previous trial admissible - Lynch v Moran [2006] IESC 31, [2006] 3 IR 389; [2006] 2 ILRM 447 and Rogers v The Queen (1994) 181 CLR 251 followed - People (DPP) v Callaghan [2001] 1 IR 584 and In re Haughey [1971] IR 217 distinguished - People (DPP) v Kelly [2006] IESC 20, [2006] 3 IR 115; [2006] 2 ILRM 321 and O'Leary v AG [1993] 1 IR 102 followed - Doorson v Netherlands (1996) 22 EHRR 330 and Kostovski v Netherlands (1989) 12 EHRR 434 considered - Offences Against the State Act 1939 (No 13) - Offences Against the State (Amendment) Act 1972 (No 26), s 3(2) - Offences Against the State (Amendment) Act 1998 (No 39), ss 2 and 5 - Constitution of Ireland 1937, Article 38 - European Convention on Human Rights, article 6 - Leave to appeal refused (236/2004 - CCA -14/7/2006) [2006] IECCA 103 People (DPP) v Matthews

Facts: The applicant was convicted by the Special Criminal Court of the offence of membership of an unlawful organisation, namely the IRA. This judgment concerned the applicant's appeal against conviction. The applicant relied on a number of grounds including: the wrongful admission into evidence of the content of videos and memoranda of interviews; the wrongful use of evidence; the wrongful finding that certain evidence was capable of corroborating the belief of the Chief Superintendent; the wrongful rejection of applicant's submission that trial was not fair having regard to the lack of opportunity to test the basis of the belief of the Chief Superintendent; and the judgment of trial court was internally inconsistent since it convicted the applicant on the basis of evidence which it found to be insufficient to convict his co-accused.

Held by the Court of Criminal Appeal in refusing leave to appeal on any of the grounds that the Trial Court did not err in law of in fact.

Reporter: R.W.

1

Macken J. on the 14th July 2006

2

The Applicant was convicted by the Special Criminal Court (O'Donovan, J., J. Matthews, and D.J. Malone) on the 7 th December 2004 of the offence of membership of an unlawful organisation, namely, the Irish Republican Army, otherwise Oglaigh Na hEireann, otherwise the IRA, on the 13 th June 2003, contrary to the provisions of the Offences Against the State Act 1939, as amended, and was found guilty, after a trial which lasted eleven days. The Applicant was sentenced to 3 years and nine months imprisonment in respect of the offence.

3

The accused lodged an application for leave to appeal against both conviction and sentence. This judgment concerns only his appeal against conviction. The application for leave to appeal against sentence shall, if necessary, be dealt with at a later date.

Factual Background
4

The matters which gave rise to the charges in the trial concern events which occurred in June 2003. In the course of the trial, there was a very considerable volume of evidence about the activities of the accused and others on the 12 th and 13 th June 2003, as noted during surveillance operations covering those dates mounted by specialist sections of the Garda Siochana in an area of County Louth. The surveillance covered, inter alia two farms, one at Thornfield ("the Thornfield farm") Iniskeen, Co. Louth, and the other about eight miles away at Tallanstown ("the Tallanstown farm"), also in County Louth, as well as the homes of the Applicant and others, and vehicular traffic involved in the comings and goings to or from or between those farms and/or premises, as well as the public roadway, on the dates in question.

5

The trial court in the course of its judgment identified several facts about which it stated it was satisfied beyond reasonable doubt. Put briefly, these were the following:

6

a a. On the 13 th June 2003 in the course of searches, lawfully authorised, members of An Garda Siochana discovered the following:

7

(i) a bomb making operation in a farmyard at the Thornfield farm, (the property of a woman not suspected of having any involvement in the activity); and

8

(ii) a grinder and a quantity of fertiliser bags in a shed at the Tallanstown farm, the property of a Mr. Gerard Sweeney at Louth Hall, Co. Louth. In the chutes of that grinder was found a brown powder which, when analysed, was found to comprise a mixture of ammonium nitrate and sucrose, which is an explosive substance within the meaning of the Explosive Substances Act 1883, as amended.

9

b b. Among the various items found in the shed on the Thornfield farm were:

10

(i) a stolen white Peugeot van in which there was a large canvas bag containing a pale brown powder which when analysed was found to be a mixture containing ammonium nitrate originating from crushed fertiliser and icing sugar, an explosive substance within the meaning of the Explosive Substances Act 1883, as amended, and

11

(ii) a powered cement mixer which contained a similar explosive substance to that contained in the canvas bag just referred to.

12

(iii) Full bags of icing sugar and empty bags of icing sugar.

13

c c. Two men were found in the act of making explosives, a Seamus McKenna and a Gregory Trainor, both of whom subsequently pleaded guilty to the offence of possession of an explosive substance.

14

d d. The cement mixer discovered at the Thornfield farm had been hired by the Applicant and Seamus McKenna, on the previous day, 12 th June 2003, from a firm known as Dromad Hire, of Dublin Road, Dundalk. The Applicant signed the written contract for hire, and Seamus McKenna paid the hiring charges.

15

e e. While the Applicant was a regular customer of Dromad Hire, having previously hired a variety of equipment from that firm, he had never previously been known to have hired a cement mixer from it.

16

f f. Having hired the cement mixer, the Applicant, in the company of Seamus McKenna, drove to the home of another co-accused, Joseph Fee, at Newtownbalregan, Co. Louth where they delivered the mixer.

17

g g. The jeep which the Applicant was driving when he hired the cement mixer and delivered it to the home of Joseph Fee, was also a stolen vehicle, (although in the course of interviews by members of an Garda Siochana the Applicant denied that he had stolen the jeep).

18

h h. At approximately 7 pm on Thursday 12th June 2003, the same jeep, driven by the Applicant, accompanied by Seamus McKenna, was driven into a workshop in Iniskeen village, believed to be occupied by Joseph Fee (although the court expressed certain reservations about whether it was used by him on a regular basis).

19

i i. At 7.55 pm on the 12th June 2003 the jeep, again driven by the Applicant, accompanied by Seamus McKenna and an unknown person, drove into the farmyard of the Tallanstown farm. At 10 pm on that evening a similar jeep was seen reversing from the farmyard there. Twenty minutes later, the same jeep was seen driving on the Castleblaney Road, travelling in the direction of Dundalk, followed by a green Nissan Almera car, the property of a co-accused Peter Kelly.

20

j j. Early in the morning of the 13th June 2003, Joseph Fee drove his Citroen van from the farmyard at the Tallanstown farm to the Thornfield farm followed on the road by Seamus McKenna, who was then driving the stolen white Peugeot van.

21

k k. At 9.35 am on 13th June 2003 the Applicant was observed driving the jeep on the Newry Road, having pulled away from a white Citroen van in which were Joseph Fee and Seamus McKenna.

22

The trial court took the view the above activities discovered by members of An Garda Siochana at the farms on the 13th June 2003 were activities of a nature commonly associated with the IRA.

23

Having been arrested, on the 13th June 2003, the Applicant was brought initially to Balbriggan Garda station, Co. Dublin, and then to Drogheda Garda Station. He was questioned on that day, and the following day, in the course of interviews, during which the provisions of S. 2 and of S. 5 of the Offences against the State (Amendment) Act, 1998 ("the Act of 1998") were referred to or invoked. The trial court found that the Applicant was informed by the interviewing members of An Garda that if he failed to answer material questions, inferences might be drawn from this, pursuant to the provisions of Section 2 of the said Act. He persistently and consistently denied, in the course of those interviews, that he was a member of the IRA.

The Case for the Prosecution
24

According to the transcript and the submissions of the Director of Public Prosecutions ("the Respondent"), the evidence against the Applicant consisted of the following, and the Applicant's counsel accepts that this was so:

25

1 The Chief Superintendent's belief that the Applicant was...

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