DPP v Gilligan

JurisdictionIreland
CourtSupreme Court
JudgeDenham J
Judgment Date23 November 2005
Neutral Citation[2005] IESC 78
Docket Number[S.C. No. 154 of 2004]
Date23 November 2005
DPP v GILLIGAN
Between/
THE PEOPLE at the suit of THE DIRECTOR OF PUBLIC PROSECUTIONS

and

JOHN GILLIGAN
Applicant/Appellant

[2005] IESC 78

Denham J.

McGuinness J.

Geoghegan J.

Fennelly J.

Macken J.

Appeal No. 154/2004

THE SUPREME COURT

CRIMINAL LAW

Evidence

Witnesses - Witness protection programme - Due process - Corroboration - Corroboration warning - Perceived benefits - Terms applicable to use of evidence of witnesses in witness protection programme if admissible - Whether use of evidence of witnesses in witness protection programme should be allowed - Whether perception of benefits irrespective of whether that perception was correct influenced witnesses to give false evidence - Dental Board v O'Callaghan [1969] IR 181 followed - Constitution of Ireland 1937, Article 38.1 - Appeal dismissed (154/2004 - SC - 23/11/2005); [2006] 1 IR 107; [2005] IESC 78

People (DPP) v Gilligan

Facts: The applicant, who was found guilty by the Special Criminal Court of certain drugs offences was refused leave to appeal against his conviction by the Court of Criminal Appeal (CCA). However, the CCA certified that its decision involved points of law of exceptional public importance and that it was desirable that an appeal be taken to the Supreme Court on that decision. The applicant challenged the reliability and credibility of three witnesses, who were accomplices, on a number of grounds, including the fact that each of the three witnesses and their families were in a Witness Protection Programme (WPP) and consequently were financially dependent on the State for their future and it was submitted that each man had tailored his evidence to please the authorities so as to obtain a better future for themselves and their families. The points of law certified related to the admissibility of evidence obtained from witness under a WPP and whether corroboration was required in respect of the testimony of accomplice witnesses who had participated in a State WPP.

Held by the Supreme Court (Denham, McGuinness, Geoghegan, Fennelly, Macken JJ) in dismissing the appeal:

1. That in order to ensure a fair trial, evidence given by a witness in a WPP should be approached in the same manner as evidence given by an accomplice. There was no rule of law to the effect that the uncorroborated evidence of a person in or going into a WPP must be rejected. However, the trier of fact must clearly bear in mind and be warned that it is dangerous to convict on the evidence of such witnesses in the absence of corroboration.

2. That the trial court had ample opportunity to consider the evidence of the witnesses and their demeanour and to assess their reliability and decided to only act upon evidence, which was corroborated. The ordinary rules as to the admissibility of evidence applied to the evidence from the witnesses in this case and the trial court did not err in admitting the evidence of the witnesses in the WPP.

Reporter: L.O'S.

COURTS OF JUSTICE ACT 1924 S29

CONSTITUTION ART 38.1

R v BASKERVILLE 1916 2 KB 658

ELLIS v O'DEA (NO 2) 1991 1 IR 251 1991 ILRM 346

R v HESTER 1973 AC 295

TRIMBOLE v GOVERNOR OF MOUNTJOY PRISON 1985 ILRM 465 1985 IR 550

MISUSE OF DRUGS ACT 1977 S21(2)

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S15

DPP v BREATHNACH 1981 2 FREWEN 43

TRIMBOLE v GOVERNOR OF MOUNTJOY PRISON 1985 ILRM 465 1985 IR 550

HEALY, STATE v O'DONOGHUE 1976 IR 325

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

D v DPP 1994 2 IR 465

DENTAL BOARD v O'CALLAGHAN 1969 IR 181

R v BASKERVILLE 1916 2 KB 658

AG v LEVISON 1932 IR 158

R v KILBOURNE 1973 AC 729

AG v O'SULLIVAN 1930 IR 552

R v HESTER 1973 AC 295

AG OF HONG KONG v WONG MUK PING 1987 1 AC 501

PEOPLE v TRAYERS 1956 IR 110

AG v O'BRIEN 1965 IR 142

MCCORMACK, STATE v CURRAN 1987 ILRM 225

DPP v NEVIN 2003 3 IR 321

AG, PEOPLE v CASEY (NO 2) 1963 IR 33

DPP v O'REILLY 1990 2 IR 415

DPP, PEOPLE v MCDERMOTT 1991 1 IR 359

DPP v COONEY 1997 3 IR 205

OFFENCES AGAINST THE STATE ACT 1939

PROSECUTION OF OFFENCESA CT 1974 S4

DPP, PEOPLE v T (J) 1988 3 FREWEN 141

1

Judgment delivered on the 23rd day of November 2005 by Denham J

1. Issue.
2

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?

2. Certified Questions
3

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:

4

(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?

5

(ii) Is corroboration in the sense described in R v Baskerville [1916] 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?

3. Grounds of appeal
6

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.

4. The Applicant
7

This appeal is brought by John Gilligan, the applicant/appellant, hereinafter referred to as "the applicant".

5. The Trial Court
8

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."

5.1 Indictment
9

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.

5.2 Murder
10

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
11

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 [1991] 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
12

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...

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3 books & journal articles
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    • United Kingdom
    • International Journal of Evidence & Proof, The Nbr. 18-4, October 2014
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