DPP v Flohr

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeBirmingham P
Judgment Date12 March 2020
Neutral Citation[2020] IECA 67
Docket Number[49/19]
Date12 March 2020
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
JULIAN FLOHR
APPELLANT

[2020] IECA 67

[49/19]

THE COURT OF APPEAL

Crime & sentencing – Offences against the State – Membership of unlawful organisation – IRA – Appeal against conviction

Facts: The appellant had been charged with membership of an unlawful organisation (the IRA), following his arrest in circumstances where he was found in a vehicle which contained a mortar replica. He now appealed against his conviction.

Held by the Court, that the appeal would be dismissed. The evidence regarding the mortar replica was compelling evidence to support the membership charge, and the admission of the belief by the Garda Síochána as to his membership or the claim of privilege could not be said to be unfair.

JUDGMENT of the Court delivered on the 12th day of March 2020 by Birmingham P
1

On 25th January 2019, Mr. Julian Flohr was convicted by the Special Criminal Court of the offence of being a member of an unlawful organisation, styling itself the IRA, on 14th August 2016. Subsequently, he was sentenced to a term of two years and ten months' imprisonment on 18th February 2019 which was backdated to 20th May 2018 to take account of time spent in custody while on remand. The appellant now appeals against his conviction.

2

The background to the prosecution, to the conviction, and now this appeal, is to be found in events that occurred on 14th August 2016. On that date, two members of An Garda Síochána, Detective Garda Eamon McDonnell and Detective Garda Ciaran Staid were on a mobile patrol together. Both Gardaí are attached to the Sligo/Leitrim Divisional Drugs Unit based in Sligo. At approximately 10.30pm on that occasion, they were patrolling in the Dromahair area of County Leitrim when they encountered a black Saab. For reasons that were explored at trial, they decided to stop the vehicle. Their efforts to stop the vehicle were delayed and the demeanour of the occupants of the vehicle raised the suspicions of the Gardaí. The vehicle was owned and driven by a Mr. Damien McFadden and the appellant, Julian Flohr, was a front-seat passenger. It appears that one of the Gardaí at least had recognised the driver and car and was aware of Mr. McFadden's involvement in so-called “Republican” activities. Therefore, the presence of this car and driver in a very secluded area at this particular time raised suspicion. Because the demeanour of the occupants of the car, in particular, what appeared to be obvious nervousness, had heightened the level of Garda suspicion, it was decided to search both men under the provisions of the Misuse of Drugs Act 1977. Nothing of significance emerged from that exercise.

3

Gardaí then proceeded to search the vehicle, and in the foot-well behind the driver's seat, they discovered a Spider-Man themed children's backpack. When this was lifted, there was what described as a substantial amount of unexpected weight in it. The backpack was removed from the car and Gardaí looked inside and saw that there was something there with black wrapping and duct tape wrapping with soil on it. The first belief of the Garda who looked into the backpack, his background was in a drugs unit, was that he was dealing with wrapped drugs. The presence of the soil led him to the opinion that the object might have buried and had been waterproofed. The area where the vehicle had been stopped and where this initial search took place was one where there was no street lighting, the search was carried out with the aid of a flashlight and so it was decided to summon assistance and to bring both men and the car in which they had been travelling to Manorhamilton Garda Station, which was the closest station to the stop point, for a more thorough search. At Manorhamilton Garda Station, it emerged that the contents of the bag in question were not drugs, but rather, was a heavy metal object which had the appearance of an explosive device. The Garda station and the surrounding area was evacuated and cordoned off. Arrangements were made for the attendance of an Army Disposal Officer, Captain Jack Higgins, and his evidence established that what was in the bag was not an actual mortar, but an exact replica of a real mortar. The replica was produced by an internationally-recognised manufacturer of armaments and it displayed particular markings which identified to an expert that it was a facsimile of a live device.

4

There were a number of elements to the prosecution case at trial. There was, first of all, the opinion/belief evidence of Chief Superintendent Thomas Maguire, admissible pursuant to statute, that Mr. Flohr was a member of an unlawful organisation. Further, there was the evidence relating to his presence in the vehicle in which a training mortar was being moved from one location to another, apparently on behalf of an unlawful organisation.

5

A large number of grounds of appeal have been formulated. However, the core arguments net down to a contention that there was insufficient conduct on the part of the appellant to support the opinion/belief evidence. It is said that the matters relied upon by the Special Criminal Court as providing support for the belief evidence of Chief Superintendent Maguire could not, as a matter of law or fact, constitute such independent evidence. It is said that the presence of the appellant, nervous as he was, as a passenger in a car owned and driven by someone who would become a co-accused did not offer sufficient independent standalone conduct evidence to support the suggestion that the appellant was a member of the IRA. The other core ground of appeal relates to the opinion/belief evidence of the Chief Superintendent and the assertion of privilege over same.

The Independent Evidence
6

The appellant says that it is trite law that mere presence at a crime scene is an insufficient basis to give rise to criminal liability in common design. It is said that, in effect, the Special Criminal Court fell foul of that principle, in that reliance was placed on the appellant's mere presence in a car where there was a training mortar, but where there was nothing beyond presence in proximity to connect him to that mortar. Counsel argued that the reliance placed by the trial court on his furtive manner, he sought to conceal his phone as Gardaí approached, was impermissible.

7

In the course of its ruling, the Special Criminal Court had observed:

“[i]n the Court's view, the remoteness of the location from Mr. Flohr's home and the normal base of the car in question [Sligo town] is relevant in considering whether his presence at that time and place was simply an unfortunate coincidence or is, in fact, consistent with the premise of the belief evidence. If the facts were that he was simply found being driven around Sligo town near where he lives, in the car, it might be possible to infer that he was simply receiving a local lift from an acquaintance and that the presence of the mortar was an unhappy coincidence with the belief held by the Chief Superintendent.”

It is said that this passage shows that the Court's approach was informed by and infused by belief evidence rather than the seeking out of any genuinely independent supporting evidence. It is said that the reference to “unfortunate coincidence”, if taken in conjunction with remarks by the presiding judge in the course of exchanges with counsel about the accused being an unlucky man are redolent of what is described, on behalf of the appellant, as “forbidden cynicism”. In that context, the appellant refers to DPP v. Rattigan [2017] IESC 72. In our view, that reference is misplaced. What was in issue in that case was the extent of a trial judge's entitlement to comment when charging a jury and the manner in which comments may be couched. The case provides no support whatever for any suggestion that the prosecution cannot point to the sheer improbability of the facts in issue being explained by coincidence, or the tribunal of fact concluding that an explanation based on chance or coincidence is impossible to believe.

8

On behalf of the appellant, it is argued that the prosecution wrongly contended that Mr. Flohr was in possession of the mortar and that the Court erred in accepting that submission. The appellant places reliance on a number of well-known possession cases, including the Northern Ireland case of R. v Whelan [1972] NI 153, and DPP v. Aaron Foley [1975] 1 IR 267. The appellant argues that while the Special Criminal Court did not formally find that he was in possession of the mortar, that in reality, the members of the Special Criminal Court had effectively concluded that to be the case. Attention is drawn to a passage in the ruling of the trial court of 25th January 2019 at p. 28 where the Special Criminal Court observed:

“[i]n fact, we are satisfied, when one stands back and considers the totality of the evidence of what was revealed on the roadside that evening, that both occupants of the car knew exactly what was concealed in the car, that Mr. Flohr was fully acquainted with the nature and purpose of the journey upon which he had embarked. And, if there is any doubt in the matter, it is resolved by the furtive nature of his behaviour on this occasion.”

The appellant protests that this involves a speculative leap.

9

For her part, the Director says there is no question of the appellant having been convicted on the grounds of mere presence in the car. The Director says that the appellant's approach to the question of the Dromahair evidence is fundamentally flawed. She points to the appellant's assertion at para. 61 of the written submissions that the conduct evidence must be standalone proof of membership of the IRA. The Director says there is no requirement for standalone proof. Rather, what is required is that the belief evidence of the Chief Superintendent should be supported by some other...

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