DPP v Kenneth Donohue

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 26 October 2007
• Neutral Citation: [2007] IECCA 97
• Docket Number: 243/04,[C.C.A. No. 243 of 2004]
• Court: Court of Criminal Appeal
• Date: 26 October 2007

THE COURT OF CRIMINAL APPEAL

Macken J.

Budd J.

de Valera J.

243/04

Between:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

and

KENNETH DONOHUE

Applicant

Abstract:

Criminal law - Leave to appeal - Disclosure of information - Section 29 of the Courts of Justice Act, 1924 - Whether the procedure adopted by the trial judges in this case, namely preventing the applicant and his legal advisers from cross examining the Chief Superintendent as to the sources for his belief, was such that it raised a legal question of exceptional public importance within the ambit of the Constitution and/or the Convention

The applicant sought a certificate for leave to appeal pursuant to section 29 of the 1924 Act in respect of a question arising out of the refusal by this Court of the applicant's application for leave to appeal against conviction of the offence of membership of an unlawful organization. Essentially, the application related to the review by the trial court of documentation, which the Chief Superintendent asserted was the basis for his belief in relation to the applicant and further the restriction of the ability of the applicant to cross examine the chief superintendent as to the sources for that belief. In this application, it was submitted that a single question ought to be certified to the Supreme Court, namely, "was the receipt and examination by the Court of material concerning the applicant, of which neither he nor his advisers had knowledge or notice, consistent with the State's obligation to provide a fair trial pursuant to Article 6 of the European Convention on Human Rights and Fundamental Freedoms and Article 38 of the Constitution of Ireland".

Held by the Court of Criminal Appeal (Macken, Budd, de Valera JJ. In refusing the application): That the applicant's arguments in relation to this applicant were not supported by the jurisprudence of the European Court of Human Rights or by the case law relied upon by the applicant. The applicant failed to make out a case that the decision of this court involved a point of law of exceptional public importance or that it was desirable in the public interest that an appeal should be taken to the Supreme Court.

Reporter: L.O'S.

1 Judgment of the court delivered on the 26th October 2007 by Macken, J.

2 This is an application for a certificate for leave to appeal made pursuant to the provisions of S.29 of the Courts of Justice Act 1924 in respect of a question which the applicant wishes to have certified to the Supreme Court for its opinion, arising out of the decision of this court made on the 28th November 2006 by which this court rejected his application for leave to appeal against conviction.

3 On the 18th November 2004 the applicant and a co-accused, Niall Binead, were convicted by the Special Criminal Court of the offence of membership of an unlawful organization, namely the IRA, after a hearing which lasted several days, and upon conviction, the applicant was sentenced to four years imprisonment. From that conviction, he lodged an application for leave to appeal against conviction and sentence. The hearing of that application was adjourned on the basis that the parties considered the judgment in a case, which had already referred to the Supreme Court on an analogous question, would be likely to be of relevance to the outcome of the applicant's application for leave to appeal. By a decision of this court handed down on the 28th November 2006, the application for leave to appeal against conviction was refused on all of the grounds raised.

4 By Notice of Motion dated the 13th March 2007 application was made to this Court for a certificate for leave to appeal to the Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924 ("the Act of 1924"). On this application, it is submitted that a single question ought to be certified to the Supreme Court, in the following terms:

5 "Was the receipt and examination of material concerning the AppellantlAccused, of which neither the Appellant nor his advisers have knowledge or notice, consistent with the State's obligation to provide a fair trial pursuant to Article 6 of the European Convention on Human Rights and Fundamental Freedoms and Article 38 of the Constitution of Ireland?"

6 Section 29 of the Act of 1924, in the version in force at the relevant date, reads as follows:

7 "The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive."

8 By way of preliminary point the Court recalls that its decision of the 14th July 2006 was one refusing leave to appeal, based on the Court's finding that none of the grounds upon which leave to appeal was sought was established. On its face, the language of Section 29 of the Act of 1924 appears to provide for the possibility of a Certificate for leave to appeal against such a refusal, provided that the decision involves a point of law of exceptional public importance which the Court considers should be referred to the Supreme Court. While there was fairly wide ranging argument relating to the contended for grounds of appeal, the decision of this court was and remains one refusing leave to appeal.

9 There are, effectively, two strands to the argument of counsel on behalf of

10 the applicant. Firstly he contends that even if the decision of the Supreme Court in DPPv Kelly ( 20060 ILRM 321, is of some relevance, which he does not accept, it does not lend itself to the conclusion that there is no breach of Article 6 of the European Convention on Human Rights, guaranteeing the accused a fair trial, because the Supreme Court did not consider the subject matter of the question now proposed. Moreover, the Supreme Court in its judgment made it clear, it is submitted, that the trial court must take all measures possible to ensure that a fair trial takes place, and that even if some restrictions against disclosure of information are to be permitted, these restrictions must be the least onerous restrictions possible.

11 Further, it is submitted that, according to the jurisprudence of the European Court of Human Rights, and contrary to what occurred in the present case before the trial court, the applicant was entitled to know the basis for the opinion or belief of the Chief Superintendent, and the prosecution had failed to furnish this information. The Chief Superintendent of An Garda Siochana, a witness at the trial, had invoked privilege against disclosure of information on the grounds that to disclose the same would, inter alia, endanger life. The information sought therefore could not be elicited from that witness by means of cross-examination of the witness. According to counsel for the applicant, the applicant's entitlement to disclosure of the information upon which the Chief Superintendent based his opinion or belief stems from obligations on the State flowing from Article 6 of the Convention, as interpreted by the European Court of Human Rights. Finally, counsel further argues that the trial judges were not entitled to and indeed were prohibited by the jurisprudence of that Court from examining documents upon which the witness based his opinion or belief, since according to the jurisprudence of the European Court of Human Rights, that function cannot be carried out by the judges who determine the guilt or innocence of an accused but rather only by a judge(s) who is independent of that decision making task. As part of this latter argument counsel for the applicant also contends that in any event the trial court could not, without infringing Article 6 of the Convention, examine documents for the purposes for which they did this in the present case, which was to determine if the opinion or belief of the Chief Superintendent was reliable, as this was, in effect, to determine the guilt or innocence of the applicant by reference to material which did not form part of the trial at all. The only legitimate basis upon which the material could be reviewed, and that by a judge independent of the trial court, was to ascertain whether there was anything in the material which was or might be of assistance to an accused in his defence.

12 In support of these arguments, counsel for the Applicant invoked several judgments of the European Court of Human Rights, to which reference will be made later in this judgment.

13 Counsel for the respondent argues that the approach adopted by the trial judges was in line not only with the jurisprudence of the Supreme Court, citing Ward v Special Criminal Court [1994] 1 IR 60, but also with several decisions of the European Court of Human Rights.

14 In its judgment of the 28th November 2006 this court found that the restriction on the ability of the defence to cross examine the chief superintendent as to the sources for his belief was not, ipso facto,a failure to comply either with Article 38 of the Constitution or with Article 6 of the Convention, and that the applicant had not made out a case that he was entitled to appeal his conviction on such grounds. The court had regard, inter alia,to long standing jurisprudence and in particular also to the recent decision of the Supreme Court in DPPv Kelly, supra. The judgment in that case was delivered consequent upon a question certified to that court pursuant to S. 29 of the Act of 1924. The question posed in the above case was in the following terms:

15 `Are the requirements of Article 38 of the Constitution...