DPP v Kelly (Martin)

• Jurisdiction: Ireland
• Judge: McCracken J
• Judgment Date: 29 April 2005
• Neutral Citation: [2005] IECCA 50
• Judgment citation (vLex): [2005] 4 JIC 2901
• Court: Court of Criminal Appeal
• Date: 29 April 2005

[2005] IECCA 50

COURT OF CRIMINAL APPEAL

McCracken J

Peart J

Dunne J

224/03

DPP v KELLY (MARTIN

Between:

The People at the Suit of the Director of Public Prosecutions

Respondent

AND

Martin Kelly

Applicant

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT1976 S2

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

HAY v O'GRADY 1992 1 IR 210 1992 ILRM 689

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6R

V H & ORS 2004 2 AC 13

DPP v SPECIAL CRIMINAL COURT & WARD 1999 1 IR 60

CRIMINAL LAW

appeal

Findings of fact by trial judge - Whether Court of Criminal Appeal could interfere with findings of fact made by Special Criminal Court - Whether claim of privilege allowed by trial judge can be re-examined on appeal - Appeal refused

the applicant was convicted by the Special Criminal Court of membership of an unlawful organisation contrary to section 21 of the Offences Against the State Act 1939, as amended. A garda gave evidence in accordance with section 3(2) of the Offences Against the State (Amendment) Act 1972 of his opinion that the accused had been a member of the IRA on the relevant date. He was cross-examined as to that belief but pleaded privilege on the basis that disclosing the source would endanger the informant, which plea was upheld by the trial court. A David Mooney also gave evidence against the accused. The applicant applied for leave to appeal the conviction on the grounds, inter alia, that David Mooney’s evidence was so unreliable that no reasonable court could hold a belief beyond all reasonable doubt based on his evidence and that he had not been given a trial in due course of law in so far as there was no investigation by the Court as to whether the claim of privilege was reasonable.

Held by the Court of Criminal Appeal in refusing leave to appeal that:

1, the principles to be applied by an appellate court in relation to decisions of fact by the Special Criminal Court were that: an appellate court did not enjoy the opportunity of seeing and hearing the witnesses as did the trial court and that if findings of fact made by the trial court were supported by credible evidence, the appellate court was bound by those findings; an appellate court should be slow to substitute its own inference of fact, where such depended on oral evidence or recollection of fact and a different inference had been drawn by the trial court.

2. That the balancing of conflicting rights and interests such as the accused’s right to a fair trial with the public interest in ensuring that informers give evidence could only be determined by the court of trial. The purpose of section 3(2) of the Act of 1972 was to make the statement of opinion or belief of a garda admissible as evidence and while it could be persuasive, it was not conclusive.

Quaere: whether a conviction based on the belief of a garda pursuant to section 3(2) of the Act of 1972 should be upset if there were no other evidence corroborating the belief of the garda.

Reporter: P.C.

1 McCracken J on the 29th day of April 2005

Background

2 The Applicant and a co-accused, Billy Clare, were charged before the Special Criminal Court with membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act 1939as amended by s.2 of the Criminal Law Act 1976. The particulars of the offences alleged against the Applicant were stated as:-

"Martin Kelly, on the 29th day of July 2002, within the State, was a member of an unlawful organisation, to wit an organisation styling itself the Irish Republican Army, otherwise Oglaigh na hEireann, otherwise the IRA."

3 Both the Applicant and his co-accused initially pleaded not guilty, but on the fifth day of the trial his co-accused changed his plea to one of guilty. The Court heard evidence over a period of nine days from thirteen witnesses and found the Applicant guilty of the offences charged and sentenced him to four years imprisonment.

The Factual Allegations

4 The prosecution's allegations were that the principal witness, David Mooney, in association with four other persons planned to set up a lap dancing club in Temple Bar in Dublin. Among the other arrangements which had to be made was to engage a firm to provide security, and ultimately a firm by the name of Protocol Security were engaged.

5 On 27th May 2002, being the day the club was due to open, one of the principals in Protocol Security requested David Mooney to meet him at lunch time. The meeting duly took place and was attended by David Mooney, Gerard Cosgrove who was one of the partners in the enterprise, Patrick Byrne from Protocol Security and the two accused. In the course of this meeting the Applicant introduced Billy Clare as "the top man" meaning the top man in the IRA. It was alleged that in the course of a conversation between David Mooney, Patrick Byrne and Billy Clare, Billy Clare said that certain people in Dublin did not want the club to open but that they would make sure it would open if a donation was given to the Continuity IRA, and if that contribution was not made, the dancers and David Mooney's girlfriend would be hurt and the premises would be petrol bombed. Initially a payment of €50,000 was sought, but after some discussion this was reduced to €25,000. Ultimately the €25,000 was paid by instalments.

The Applicant's Defence

6 It was not disputed that this meeting took place, or indeed that the sum of €25,000 was asked for. However the Applicant's case was that this was to be a payment bona fide for the provision of security services for a year and that there was no question of the involvement of the Continuity IRA or any other illegal organisation. While Billy Clare did ultimately plead guilty to the offence charged, the Applicant gave evidence denying membership of any illegal organisation. He also denied knowing that Billy Clare was a member of the Continuity IRA, although he admitted knowing that he had at one time been a member of the Irish National Liberation Army, also an illegal organisation.

The Evidence

7 Chief Superintendent Kelly gave evidence in accordance with s.3(2) of the Offences Against the State (Amendment) Act 1972as amended of his opinion that the Applicant had been a member of the IRA on the relevant date. He also stated that he believed that the Applicant had been a member of the IRA for six months prior to that date. He was cross-examined as to the source of his belief but pleaded privilege on the basis that the disclosure of his sources could endanger life. The Court upheld his plea of privilege.

8 The principal evidence was that of David Mooney. His evidence supported the prosecution allegations. The prosecution also called Patrick Byrne and Gerard Cosgrove as witnesses. Their evidence contradicted that of David Mooney and supported the Applicant's case. An application was made by the prosecution to treat Patrick Byrne as a hostile witness, which was initially refused but was subsequently granted. An application was also made to treat Gerard Cosgrove as a hostile witness, but this application was not proceeded with.

9 David Mooney was subjected to severe cross-examination on behalf of the Applicant, primarily attacking his character and his past history. In addition, his former girlfriend gave evidence on behalf of the prosecution and stated under cross-examination that he could be very erratic and unreliable.

10 Evidence was also given by a former employer as to the reasons for his dismissal, although much of this was found to be inadmissible on the basis that it was hearsay.

Assessment of the Evidence

11 The Applicant's submission was that David Mooney was unreliable to a point where no reasonable Court or jury could hold a belief beyond all reasonable doubt based on the evidence offered by him. Great emphasis was placed on the fact that his evidence was contradicted by that of two other prosecution witnesses and also on the evidence as to his character. It was admitted by him that he had passed himself off as a member of An Garda Siochana in order to obtain insurance, and also that he impersonated a member of An Garda Siochana on one occasion. Further, David Mooney had been in a witness protection programme for some twelve months before the hearing, and it was sought to make the argument that he was in effect being paid to give evidence for the prosecution.

12 The Special Criminal Court is in a unique position in that it has three members who are acting both as judge and jury. Unlike jury trials, where the Court of Criminal Appeal has no guidance as to how the jury reaches a verdict, a judgment dealing with facts is given by the Special Criminal Court. In that part of its judgment, the Court is acting as a jury in assessing evidence, and is expounding its reasons for accepting or rejecting certain portions of evidence. In the present case, in the course of a lengthy judgment, the Court considered each of the witnesses who had given evidence. After giving an account of the evidence given by the witness, in each case the Court then gave its impression of the witness under the heading "Credibility". In relation to David Mooney the Court held:-

"Vigorous efforts were made to discredit this witness by putting to him that he...