DPP -v- Kelly, [2006] IESC 20 (2006)

Docket Number:2003 224
Party Name:DPP, Kelly
Judge:Fennelly J.
 
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THE SUPREME COURT No. 418/05

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN KELLY Appellant

JUDGMENT of MR JUSTICE FENNELLY delivered on the 4th day of April, 2006.

This appeal comes to the Court by way of a certificate of the Court of Criminal Appeal pursuant to section 29 of The Courts of Justice Act, 1924. It concerns the restriction on effectiveness of the right to cross-examine a Chief Superintendent of An Garda Síochána who gives evidence of his belief that a person is a member of an unlawful organisation, but claims privilege as to the sources of his knowledge. Unlike other similar appeals, no point other than the certified one was argued on the appeal in this case.

The Trial

The appellant was charged before the Special Criminal Court with membership of an unlawful organisation contrary to section 21 of the Offences Against the State Act, 1939, as amended in respect of penalty, by section 2 of the Criminal Law Act, 1976. He was convicted on 19th November 2003 and sentenced to four years imprisonment. He had been released before the hearing of his appeal to this Court. His application for leave to appeal was rejected by the Court of Criminal Appeal on 29th April 2005. That Court, nonetheless, certified the following question for this Court pursuant to the aforementioned section:

"Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from enquiring into the basis of the evidence of belief given against him at his trial, pursuant to the provisions of the Offences Against the State Act, 1939, as amended, on a charge of membership of an unlawful organisation before the Special Criminal Court?"

The prosecution evidence was not limited to the special evidence of belief of a Chief Superintendent, as has frequently happened in the past. Counsel for the prosecution summarises that evidence as follows:

(a) The evidence of David Mooney that the accused on 27th May 2002 expressly represented himself and his co-accused as being connected with the IRA, and thereafter did so by implication in that he accepted money proffered by Mr Mooney and others on foot of that representation;

(b) The connection between the accused and his co-accused (William Clare), who pleaded guilty to the charge, who was represented by the appellant as a "top man" involved with the IRA;

(c) The conduct of the accused pursuant to sec 3(1)(a) of the Offences Against the State (Amendment) Act, 1972 (as inserted by section 4 of the Offences Against the State (Amendment) Act , 1998;

(d) The belief offered by Chief Superintendent Kelly (independent of any other evidence in the trial) pursuant to section 3(2) of the Offences Against the State (Amendment) Act , 1972 that on the 29th day of July 2002 the appellant was a member of the IRA;

(e) The answers given by the appellant whilst in Garda custody following the invocation of section 2 of the Offences Against the State (Amendment) Act, 1998.

There was, thus, general evidence, which I will summarise briefly but only to show that it was there and formed an important part of the case. The Chief Superintendent, as has generally happened, claimed privilege as to the basis of his belief. The appellant gave evidence denying that he had ever been a member of an unlawful organisation.

The appellant was tried with a co-accused, William Clare, who pleaded guilty to a charge of membership of an unlawful organisation on the fifth day of the trial. The general evidence against the appellant revolved very much about his association with Mr Clare. Mr David Mooney gave evidence that he returned to Ireland from abroad and of wishing, with others, to open a lap-dancing club. He said he received a telephone call from one Patrick Byrne with whom he arranged a meeting. Mr Clare and the accused attended the meeting together with Mr Byrne. Mr Mooney's evidence was that he was requested to make a payment to the Continuity IRA to ensure that his club could open. 50,000 was requested. There was conflicting evidence concerning amounts, though there was evidence that 5,000 was paid to William Clare and another 5,000 to the appellant.

Mr Mooney's evidence and general credibility were strenuously challenged. He was on a Witness Protection programme. The Special Criminal Court accepted the evidence of Mr Mooney, noting, in particular, that it was satisfied that "throughout his evidence it was apparent to the court from his demeanour that he was in fear." The court was satisfied that "he was indeed in fear of both the accused [i.e., the appellant] and of the Continuity IRA." He was accepted as a truthful witness.

Mr Patrick Byrne also gave evidence and was also accepted by the Special Criminal Court as being in fear. He was treated as a hostile witness. Nonetheless, he gave evidence that the appellant described his co-accused, William Clare, as a "top man" using that expression in relation to the IRA. Mr Byrne said that Mr Clare had said that the money was to be sent "up North" and for the "wives and children of families whose Dads were in prison." There was also evidence that the appellant, in interviews after caution with the Garda Síochána, accepted that he was a friend of William Clare.

It is unnecessary to refer to this evidence in any greater detail. It is clear that there was before the Special Criminal Court significant evidence, which was accepted by that court, of the involvement of the appellant with an unlawful organisation.

The Special Criminal Court ruled as follows on the evidence of the Chief Superintendent;

"The court accepts the evidence of Chief Superintendent Kelly as to his belief that the accused was at the material time a member of an unlawful organisation namely the Irish Republican Army. The witness claimed privilege in respect of his belief and the sources thereof. The court takes this circumstance into account in assessing the weight to be attributed to his evidence."

The judgment of the Special Criminal Court concluded with the following sentence:

"On the entire of the evidence adduced before the Court the Court is satisfied beyond reasonable doubt that Martin Kelly is guilty of the offence with which he is charged."

Based on all of the evidence it had heard, including the evidence of the Chief Superintendent, discussed later in this judgment, the Special Criminal Court concluded beyond reasonable doubt that the appellant was a guilty of the offence of being a member of an unlawful organisation.

I now turn to the evidence relating to the evidence and legal provisions relating to the question certified by the Court of Criminal Appeal. Section 21 of the Offences Against the State Act, 1939 established the offence of being a member of an unlawful organisation. Section 19 provides for the making of Suppression Orders. Such an order was made by the Unlawful Organisation (Suppression) Order 1939 (S.I. 162 of 1939). These and other relevant statutory provisions were summarised by the Special Criminal Court in its judgment. No issue has been raised on this appeal concerning any of these matters.

Section 3 of the Offences Against the State Act (Amendment) Act, 1972 as amended by section 4 of the Offences Against the State ( Amendment) Act 1998 provides:

"(1)(a) Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was then such a member.

(b) paragraph (a) of this subsection 'conduct' includes-

(i) movements, actions, activities or associations on the part of the accused person, and

(ii) omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive.".

(2) Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.

(3) Subsection (2) of this section shall be in force whenever and for so long only as Part V of the Act of 1939 is in force."

In reliance on subsection 2 of this section, the prosecution led the evidence of Chief Superintendent Philip Kelly, who had served 32 years in the Garda Síochána of which 25 had been spent "involved in the fight against subversion." He was, at the relevant time, Chief Superintendent in charge of the Special Detective Unit and was involved in receiving and analysing sensitive information and intelligence relating to subversion. His evidence against the appellant was as follows:

"I believe that Martin Kelly is within the State a member of an unlawful organisation styling itself the Irish Republican Army, otherwise the IRA, otherwise Oglaigh na hEireann. And he was a member of that organisation on the 29th July 2002.

Q: Can I ask you Chief Superintendent whether you base that belief on any matter discovered during investigation into the activities of Martin Kelly at that [sic, recte, "the"] time of after his arrest on the 29th July2002?

A: I did not base that belief on the arrest of Martin Kelly on the 29th July 2002 or any statements or admissions or conduct of him at that particular time as a result of that arrest."

This last piece of evidence showed that the prosecution was not duplicating its reliance on what I have called the "general" evidence against the appellant. It has been held that such evidence should not be given in reliance on direct evidence which could be produced in court. The Chief Superintendent was cross-examined and confirmed that he had held his belief for approximately six months prior to 29th July 2002. He was asked for the...

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