DPP -v- Gilligan,  IESC 78 (2005)
|Party Name:||DPP, Gilligan|
THE SUPREME COURT
Appeal No. 154/2004Denham J.
THE PEOPLE at the suit of
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment delivered on the 23rd day of November 2005 by Denham J
At issue on this appeal is the use of evidence in a trial from persons who were in a Witness Protection Programme. Is such evidence consistent with the rights of an accused? Is it consistent with constitutional due process? Is corroboration required? If corroboration is required what is the test?
On the 2nd day of February, 2004 (order perfected on the 11th day of March, 2004) the Court of Criminal Appeal certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision on the 8th day of August, 2003, refusing leave to appeal against a conviction of the Special Criminal Court on the 15th day of March, 2001 on charges of possession of a controlled drug for the purpose of selling or otherwise supplying to another and unlawful importation of a controlled drug, involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on that decision. The points of law certified were:
(i) In what circumstances and to what extent is evidence which may have been obtained from witnesses under a state Witness Protection Programme inadmissible and/or inconsistent with trial in due course of law as guaranteed by Article 38.1 of the Constitution? (ii) Is corroboration in the sense described in R v Baskerville  2KB 658 required in respect of the testimony of accomplice witnesses who have participated in a state Witness Protection Programme? If not what is the appropriate test in relation to such witnesses?
Grounds of appeal
In accordance with the jurisprudence of this Court, an appeal under s.29 of the Courts of Justice Act, 1924 operates as a full appeal from the decision of the Court of Criminal Appeal. In addition to grounds based on the two certified points of law, a full set of grounds of appeal was lodged with this Court, comprising the same grounds of appeal as were argued before the Court of Criminal Appeal.
This appeal is brought by John Gilligan, the applicant/appellant, hereinafter referred to as "the applicant".
The Trial Court
Arising from the certified questions in this case and the general grounds of appeal, it is necessary to consider the judgment of the trial court in some detail. The trial court in these proceedings was the Special Criminal Court. That court made determinations of fact and law, gave verdicts of guilty and not guilty, and imposed sentence. Unlike a trial before the Central Criminal Court or the Circuit (Criminal) Court there was no jury to determine the facts. The judges of the Special Criminal Court found the facts in this trial. As a consequence, we have the benefit of a detailed judgment setting out the facts found by the trial court, unlike a trial with a jury where the jury indicates a verdict only. The judgment of the Special Criminal Court was delivered on the 15th day of March, 2001. The Special Criminal Court is referred to hereafter as "the trial court."
The applicant was before the trial court on an indictment with 16 counts, being the murder of the journalist Veronica Guerin on the 26th day of June, 1996, and 15 other drug and arms related offences. The trial court found the applicant guilty of the drugs charges, not guilty of the charge of murder and not guilty of the firearms charges. As there is no appeal from the verdicts of not guilty, the only verdicts in issue on this appeal are those relating to the drugs charges. However, it was a significant factor in the submissions on behalf of the applicant that the trial court, having applied the law correctly on the murder and firearms charges, erred in its application of the law in relation to the drugs charges. Thus the entire of the judgment of the trial court is relevant to this appeal.
The trial court held that on the 26th day of June, 1996 Veronica Guerin was brutally murdered as she sat in her car waiting for the traffic lights to change at the junction of the Naas Road with Boot Road near Clondalkin, Dublin. A motorcycle, on which there was a rider and a pillion passenger, drew alongside the stationary car in which Veronica Guerin was sitting. The pillion passenger broke the window of the driver's door and then fired a number of bullets at point blank range into the car. Veronica Guerin was struck by six bullets, as a result of which she suffered severe injuries and died almost instantaneously.
5.3 Murder Charge
The applicant was charged with Veronica Guerin's murder and it was the State's case that it was he who determined that she was to die, that he planned her death, and that the perpetrators of the crime were acting under his control when she died. The trial court followed the law stated in Ellis v O'Dea  1.I.R. 251 that when two or more persons are engaged in a joint venture constituting a criminal offence each is responsible for the acts of the other.
5.4 Three Witnesses
The trial court pointed out that three witnesses were called to give evidence on the indictment and that the guilt or innocence of the applicant would depend on whether or not the evidence of these three witnesses found favour with the court. These witnesses were John Dunne, Charles Bowden and Russell Warren. The trial court noted that each of the three witnesses was, on his evidence, an accomplice of the applicant, and the trial court recognised the danger of convicting on the uncorroborated evidence of an accomplice. The trial court pointed out that the reliability and credibility of the three witnesses was challenged by the applicant on a number of further grounds, including that: (a) each had pleaded guilty in court to a variety of offences, including drug related offences, committed in association with the applicant; (b) each was treated extremely leniently by the courts, presumably because of representations from the prosecution as to their assistance to the State; (c) each of the three men and their families were in a Witness Protection Programme as a consequence of which they were financially dependent on the State for their future and it was submitted each man had tailored his evidence to please the authorities so as to obtain a better future for themselves and their families. In addition, in relation to Charles Bowden and Russell Warren, counsel on behalf of the applicant had suggested that the two men had been granted immunity from prosecution for the murder of Veronica Guerin. It was submitted that this was a favour which was granted to them in consideration of their agreeing to give evidence favourable to the prosecution in this and other related trials.
5.5 "Water under the Bridge"
The court held that this was 'water under the bridge'. It stated: "In the view of the Court, insofar as it is suggested that the honesty of John Dunne, Charles Bowden and Russell Warren is open to question arising from the fact that after they had agreed to give evidence on behalf of the prosecution in this and related trials they were treated leniently by the courts and, indeed, probably face less serious charges than those which might have been preferred against them had they not agreed to give such evidence, that would all now appear to the Court to be 'water under the bridge' in the sense that the DPP cannot, as it were, turn back the clock and arrange to have these men's cases reopened before the courts with a view to having more severe penalties imposed upon them and neither at this remove can the DPP prefer more serious charges against them. Accordingly, it seems to the Court that what has been done cannot be undone and, therefore, that Messrs Dunne, Bowden and Warren have nothing to gain by giving perjured evidence on behalf of the prosecution and that begs the question 'why should they bother telling lies if there was no benefit from doing so?' In the view of the Court there is no good reason why they should do so. The same considerations would appear to apply to the immunity from prosecution for the offence of murder which has been granted to Charles Bowden and Russell Warren because, in the letter granting that immunity, it is expressly stated that the favour is 'unconditional and irrevocable'. Accordingly, no matter what evidence these two men gave at what ever trials they chose to give evidence on behalf of the prosecution, including this trial, they can never be prosecuted for the murder of Veronica Guerin and therefore, is there any sense or logic in their giving perjured evidence? The Court thinks not."
I shall return to this matter later in the judgment.
5.6 Credibility of John Dunne, Charles Bowden, Russell Warren as a consequence of their participation in the Witness Protection Programme.
The trial court considered the credibility of John Dunne, Charles Bowden and Russell Warren as a consequence of their participation in the Witness Protection Programme. This issue is at the core of the appeal to this Court. The trial court considered whether one or more of them could have been apprehensive that if they did not give evidence measuring up to the expectation of the authorities either they or their families would suffer by being less well protected or provided for. The trial court held:"On the face of it, that would not appear to be an unreasonable fear and, therefore, there would appear to be some basis for doubting the honesty of the evidence given by one or more of these men. However, although the Court accepts that during the initial stages of the Witness Protection Programme, each of these three men was less than enchanted with the information which they were receiving about the realities of the programme, insofar as it was going to affect them and their families in the...
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