DPP v Kelly

• Jurisdiction: Ireland
• Judge: MR JUSTICE FENNELLY,Mr. Justice Geoghegan
• Judgment Date: 04 April 2006
• Neutral Citation: [2006] IESC 20
• Court: Supreme Court
• Docket Number: [S.C. No. 418 of
• Date: 04 April 2006

DPP v KELLY

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

MARTIN KELLY

Appellant

[2006] IESC 20

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Record No. 418/2005

THE SUPREME COURT

CONSTITUTIONAL LAW:

Criminal charge;

CRIMINAL LAW:

Evidence

Right to trial in due course of law - Restriction on right to cross-examination - Whether accused deprived of fair trial by limitation on cross-examination - Presumption of constitutionality - Principle of proportionality - O'Leary v Ireland [1993]1 IR 102 considered; People (DPP) v Mulligan (Unrep, CCA, 17/5/2004) and People (DPP) v Redmond (Unrep, CCA,24/2/2004) applied - Offences Against the State (Amendment) Act 1972 (No 26), s 3(2)- Constitution of Ireland 1937, Article 38 - Appeal dismissed (418/2005 - SC -4/4/2006) [2006] IESC 20, [2006] 3 IR 115; [2006] 2 ILRM 321 People (DPP) v Kelly

the Court of Criminal Appeal certified for appeal by the Supreme Court as a point of law of exceptional public importance the question of whether the requirements of Article 38 of Bunreacht na hÉireann in relation to the guarantee of a fair trial in due course of law were satisfied where an accused was precluded from enquiring into the basis of the evidence of belief given against him by a Chief Superintendent of An Garda Síochána that he was a member of an unlawful organisation at his trial pursuant to section 3(2) of the Offences Against the State (Amendment) Act 1972, as amended. A Chief Superintendent of An Garda Síochána gave evidence that the appellant was a member of the IRA but when cross-examined as to the source of his belief, he pleaded privilege on the grounds that to disclose his sources would endanger life. The Special Criminal Court upheld the plea of privilege.

Held by the Supreme Court, in dismissing the appeal that section 3(2) of the Offences Against the State (Amendment) Act 1972 had to be construed in accordance with the presumption of constitutionality and accordingly, the fair administration of justice required that measures restricting the rights of the defence, including those found in section 3(2), should be restricted to what was strictly necessary. In this context, the legitimate public interest in protecting police sources of information or the safety of informers or witnesses justified the withholding of relevant information from disclosure to the defence.

Reporter: P.C.

COURTS OF JUSTICE ACT 1924 S29

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3(2)

CONSTITUTION ART 38

O'LEARY v AG 1993 1 IR 1021991 ILRM 454

DPP v MULLIGAN UNREP CCA KEANE 17.5.2004

DPP v REDMOND UNREP CCA KEANE 24.2.2004

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3(1)(a)

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S4

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

OFFENCES AGAINST THE STATE ACT 1939 S19

UNLAWFUL ORGANISATION (SUPPRESSION) ORDER 1939 S R & O 162/1939

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3

DPP v SPECIAL CRIMINAL COURT & WARD 1999 1 IR 60

AG v BRIANT 1846 15 MWR 169 1846 10 JP 518 1846 15 LJ EX 265

OFFENCES AGAINST THE STATE ACT 1939 S18

DPP v FERGUSON UNREP CCA MURNAGHAN 27.10.1975

DPP v CULL 2 FREWEN 36

DPP v GANNON UNREP CCA 2.4.2003 2003/16/3506

COMMITTEE TO REVIEW THE OFFENCES AGAINST THE STATE ACTS 1939-1998 REPORT OF THE COMMITTEE TO REVIEW THE OFFENCES AGAINST THE STATE ACTS 1939-1998 & RELATED MATTERS 2002 123

BRADDISH v DPP & HAUGH 2001 3 IR 1272002 1 ILRM 151

DUNNE v DPP 2002 2 IR 3052002 2 ILRM 241

BOWES v DPP 2003 2 IR 25

MCGRATH v DPP 2003 2 IR 25

HAUGHEY, IN RE 1971 IR 217

HEALY, STATE v DONOGHUE 1976 IR 325

DONNELLY v IRELAND & ORS 1998 1 IR 3211998 1 ILRM 401

CRIMINAL EVIDENCE ACT 1992

GREENE v MCELROY 1959 360 US 474

WIGMORE EVIDENCE 1940 3ED 1367

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 6(3)

KOSTOVSKI v NETHERLANDS 1989 12 EHRR 434

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 6

DOORSON v NETHERLANDS 1996 22 EHRR 330

VAN MECHELEN v NETHERLANDS 1997 25 EHRR 647

ROWE & DAVIS v UK 2000 30 EHRR 1 2000 8 BHRC 325

R v H 2004 2 AC 134 2004 1 AER 1269 2004 2 WLR 335 2004 2 CAR 179

BURKE v CENTRAL INDEPENDENT TELEVISION PLC 1994 2 IR 611994 2 ILRM 161

1 JUDGMENT of Mr. Justice Geoghegan delivered the 4th day of April 2006

2 This is an appeal brought pursuant to a certificate of the Court of Criminal Appeal under section 29 of the Courts of Justice Act, 1924 from an order of that court refusing the above-named appellant leave to appeal against his conviction by the Special Criminal Court on the 19th November, 2003 on a charge of membership of an unlawful organisation contrary to section 21 of the Offences against the State Act, 1939 as amended by section 2 of the Criminal Law Act, 1976.

3 The certified point of law of exceptional public importance as formulated by the Court of Criminal Appeal reads as follows:

"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?"

4 The only ground of appeal in the notice of appeal to this court is the certified point of law. In fact it is just repeated verbatim and therefore not strictly speaking converted into a clear stated ground of appeal in this particular case. However, what is obviously intended is that this court should consider whether the trial was fatally flawed by reason of limitations being placed on counsel for the appellant in his cross-examination of Chief Superintendent Kelly who gave belief evidence under section 3(2) of the Offences against the State (Amendment) Act, 1972 to the effect that the appellant had been a member of the IRA on the relevant date. The Chief Superintendent was cross-examined as to the source of his belief but pleaded privilege on the grounds that to disclose his sources would endanger life. The Special Criminal Court upheld the plea of privilege.

5 At this juncture, it is important to note that the appeal to this court is not concerned with any matter other than the question of whether the appellant was deprived of a fair trial by reason of that limitation on cross-examination. It was accepted that the evidence was admissible and it was also accepted that the Chief Superintendent was entitled to plead informer privilege. It is a curious feature of the case that although sixteen stated grounds of appeal were served and lodged in the office of the Court of Criminal Appeal for the purposes of the application for leave to appeal against conviction, they did not include the ground now put forward. It is clear, however, from the terms of the reserved judgment of the Court of Criminal Appeal delivered by McCracken J. sitting with Peart and Dunne JJ that Mr. Peter Finlay, S.C., counsel for the appellant was allowed to make the argument at the hearing of the application for leave to appeal that the appellant was not given a trial in due course of law in accordance with his entitlement under Article 38 of the Constitution. At p. 13 of the unreported judgment, McCracken J. referring to Mr. Finlay comments as follows:

"Very fairly, he does not go so far as to argue that a claim of privilege cannot be entertained, but he does submit that a fair trial requires some investigation as to whether it is reasonable to protect a claim of privilege in any particular case."

6 It is clear, therefore, that the fair trial issue although not included in the grounds of appeal was fully aired before the Court of Criminal Appeal and duly considered by that court and it is now in relation to that issue only that the matter comes before this court. Mr. Finlay again appearing for the appellant forcefully argued that the limitation placed on his cross-examination of the Chief Superintendent rendered the trial unfair.

7 The first point to be made is that the presumption of constitutionality applies to each of the acts relevant to this case. That is important because a limitation on cross-examination is inherent in the very terms of section 3(2) of the Offences against the State (Amendment) Act, 1972. That subsection reads as follows:

"Where an officer of an 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."

8 This subsection was considered by the High Court (Costello J.) in O'Leary v. Ireland[1993] 1 I.R. 102. In that case after the plaintiff had been convicted on foot of belief evidence by a Chief Superintendent under the subsection and after that conviction had been affirmed by the Court of Criminal Appeal, the plaintiff by plenary action sought a declaration in the High Court that ( inter alia) section 3(2) of the Act of 1972 was invalid having regard to the Constitution. The basis of the claim was that there was a reversal of the burden of proof and that the onus was on the accused to disprove his guilt. The plaintiff's argument was rejected by the High Court on the grounds that the burden of proof had not been shifted. All that had happened was that belief evidence of a Chief Superintendent was rendered admissible. Costello J. held that the trial court was then free to attach such weight to the evidence as it saw fit. Indeed the judge went further and held that there was no...