DPP v Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IECA 404
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 32/12
• Date: 21 December 2016

[2016] IECA 404

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Sheehan J.

Mahon J.

Appeal No. 32/12

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Martin Kelly

Appellant

Conviction – Murder – Unlawful detention – Appellant seeking to appeal against conviction – Whether admissions made by the appellant should have been ruled inadmissible

Facts: The appellant, Mr Kelly, on the 1st December, 2011, was convicted in the Special Criminal Court of the murder of Mr Burns at Doneyloop, Castlefin, on the 12th February, 2008. The appellant appealed to the Court of Appeal against that conviction. The appellant contended that the stopping of the appellant’s vehicle and his arrest were unlawful, and that accordingly his detention in Letterkenny garda station was unlawful. The appellant therefore submitted that the admissions made by him should have been ruled inadmissible. The appellant further challenged the admissions on the basis that they were not voluntary or were procured in circumstances where minimum standards of fairness had not been observed. A further ground of appeal contended that a not guilty verdict should have been returned on the murder count because the act of shooting deliberately to kill which took place in Doneyloop car park was fundamentally different from the acts which were contemplated and in which the appellant had agreed to participate. Finally there was a ground submitted concerning the inadequacy of reasons provided by the trial court for its decision.

Held by the Court that it was open to the court at trial to conclude that the arrest was a valid one, the car having been lawfully stopped and that the subsequent detention was therefore lawful; accordingly the grounds of appeal relating to the validity of the arrest failed. The Court held that this was a case where the findings of fact and the conclusions by the trial court were supported by credible evidence. The Court held that they were bound by those findings; accordingly the grounds of appeal relating to the admissibility of the admissions failed. The Court held that while undoubtedly there was a distinction between what Mr Kelly said was agreed and what occurred, this was not so fundamental a departure as to absolve Mr Kelly from responsibility for the murder; accordingly that ground of appeal failed. The Court held that while not every argument canvassed was addressed by the court in the course of its rulings, no one who had been a participant in the case or had observed the trial could have been left in any doubt whatever, about the basis on which the court of trial approached the case and the view that the court formed in relation to the various issues that had been raised; accordingly that ground of appeal failed.

The Court held that they would uphold the conviction and dismiss the appeal.

Appeal dismissed.

Judgment of the Court delivered on the 21st day of December 2016 by Mr. Justice Birmingham

1 On the 1st December, 2011, the appellant was convicted in the Special Criminal Court of the murder of Andrew Burns at Doneyloop, Castlefin, on the 12th February, 2008. He now appeals against that conviction.

2 The background to the trial and now to this appeal is that the deceased man, Mr. Andrew Burns, and the appellant both lived in Strabane, Co. Tyrone, Northern Ireland. They were known to each other. The case against the accused was that he was part of a plot to lure Mr. Burns to a church car park in the village of Doneyloop, which is just across the border in Co. Donegal, on the pretext that he was required to go on an IRA mission in which it was intended to murder a PSNI officer who had been dating a Catholic girl in Donegal.

3 The accused drove Mr. Burns to the location where three associates were waiting. There, in the car park of the Church one of them shot Mr. Burns twice in the back, causing his death. There can be no doubt that this was a deliberate assassination. After the killing, Mr. Kelly and the three people who had been lying in wait got into his car and drove off across the border. There, the gunmen handed Mr. Kelly a revolver which was in a black plastic bin liner bag and asked him to dispose of the gun inside the ditch. Mr. Kelly got out of the car, put the gun into the hedge and then drove off. Approximately two weeks after the murder as a result of a phone call, he met again with the three individuals who had been waiting for his arrival in Doneyloop. One of them put the murder gun underneath the passenger seat of the car he was driving, the same car as used on the occasion of the murder. Two of the three, including the person who had fired the fatal shots, took the revolver gun with them at a location outside Strabane. The gun was wrapped in an old oily rag.

4 A little over two years later, on the 24th February, 2010, Mr. Kelly was arrested near Letterkenny under s. 30 of the Offences Against the State Act 1939, as amended, for the unlawful possession of a firearm on the 12th February, 2008, and membership of an unlawful organisation on the same date. Having been arrested by Detective Sergeant Michael Donoghue, Mr. Kelly was brought to Letterkenny garda station where he was detained for a period of 48 hours. That detention was then extended for a further 24 hours following an application in that regard to Judge Seamus Hughes to which he acceded. During his detention at Letterkenny garda station, he was interviewed on eight occasions. During the course of the first six interviews no admissions were made, but in the course of interviews seven and eight, which were video recorded, admissions were made of involvement in the ‘shooting incident’.

5 When the appellant's detention in Letterkenny garda station ended, he was released and it seems, returned to Northern Ireland.

6 On the 11th March, 2010, by prior arrangement, he met with Detective Superintendent Diarmuid O'Sullivan and Detective Inspector Kevin English in a hotel in Ballymena, Co Antrim. A major issue at the trial related to the three interviews, two in Letterkenny garda station and one in the hotel in which admissions were made. Those interviews and the admissions made are now central to this appeal.

7 In summary, the grounds of appeal contend that the stopping of the appellant's vehicle and his arrest were unlawful, that accordingly, his detention in Letterkenny garda station was unlawful and the admissions made by him should have been ruled inadmissible.

8 There is a further challenge to the admissions on the basis that they were not voluntary or were procured in circumstances where minimum standards of fairness had not been observed.

9 A further ground of appeal contends that a not guilty verdict should have been returned on the murder count because the act of shooting deliberately to kill which took place in Doneyloop car park was fundamentally different from the acts which were contemplated and in which the appellant had agreed to participate. To put that ground in context, it is necessary to explain that the admissions made by the appellant were to being the driver, who brought Mr. Burns to where the appellant's associates were waiting with the intention that he would be knee-capped there. In fact the gunman shot to kill and did in fact kill Mr. Burns. Fourthly there is a ground about the inadequacy of reasons provided by the trial court for its decision.

There was a failure to prove that stopping the vehicle driven by the appellant and his arrest under s. 30 of the Offences Against the State Act were lawful.

10 This issue arises in circumstances where Detective Sergeant Michael Carroll, Detective Sergeant Michael Donoghue and Detective Inspector Kevin English stopped the vehicle being driven by the appellant and arrested him. While they were close to Letterkenny, a Ford Galaxy car came from the Ramelton direction headed towards Derry. Detective Sergeant Carroll was driving the patrol car and he activated the blue lights in order to cause the Galaxy to stop. Detective Sergeant Carroll approached the driver, produced his garda identification card and spoke with the driver. He asked him for his driving licence and Detective Sergeant Carroll informed him that he was stopping him under the provisions of s. 30 of the Offences Against the State Act 1939, as amended. Detective Sergeant Donoghue looked at the driving licence which was produced and saw the name Martin Kelly on the driving licence. Detective Sergeant Donoghue also produced his identification card to Martin Kelly, identified himself to him and asked him if he was known as Martin William Kelly. The appellant said he was and Detective Sergeant Donoghue also asked him if he was known as ‘Mogo’ and he said he was. Then, at 12.35 a.m. on the 24th February, 2010, Detective Sergeant Donoghue put his hand on Mr. Kelly's shoulder and told him that he was arresting him under the provisions of s. 30 of the Offences Against the State Act 1939 to 1998 on suspicion of the unlawful possession of a firearm at Doneyloop, Castlefin, on the 12th February, 2008 and also on suspicion of being a member of an unlawful organisation on the same date. When asked by prosecution counsel during the course of the voir dire what was the basis for his suspicion, Detective Sergeant Donoghue replied ‘I based it on confidential information in my possession and which I was satisfied to be accurate… I would also have known of Mr. Kelly and I was involved in the investigation into the murder of Andrew Burns from the outset’. In the course of the cross examination of Detective Sergeant O'Donoghue, it emerged that the three occupants of the garda car had been responding to an alleged armed incident in Convoy when they became aware of information in relation to Mr. Kelly's whereabouts, that it was believed that he had gone to Milford garda station in order to collect another individual. At that...