DPP v Maguire

JurisdictionIreland
JudgeMacken, J.
Judgment Date07 May 2008
Neutral Citation[2008] IECCA 67
CourtCourt of Criminal Appeal
Docket Number223/06
Date07 May 2008
DPP v Maguire

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
-and-
COLM MAGUIRE
Applicant

[2008] IECCA 67

Macken, J.

Murphy, J.

de Valera, J.

223/06

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Member Of Unlawful Organisation

Weight to be attached to belief of Chief Superintendent - Invocation of privilege - Restriction on right to cross-examine - Whether evidence as to belief ambiguous - Whether absence of statement of weight to be attached to evidence of belief fatal to trial - Whether failure to have sufficient regard to jurisprudence of European Court of Human Rights - Corroboration of evidence as to belief - Whether failure to give adequate weight to sworn evidence of defence - Whether Lucas direction necessary - Whether inferences impermissibly drawn from answers given in garda interviews - People (DPP) v Kelly IEHC [2006] IESC 20 [2006] 3 IR 115, DPP v Sherwin (Unrep, SCC, 15/12/2006), O'Leary v Ireland [1993] 1 IR 102, Doorsen v Netherlands [1996] EHCR 330, Kostowski v Netherlands [1989] ECHR 434, R v H [2004] 2 AC 134, People (DPP) v Matthews [2007] IECCA 23 (Unrep, CCA, 29/3/2007), People (DPP) v Donohue [2007] IECCA 97 (Unrep, CCA, 26/10/2007) and People (DPP) v Cronin [2006] IESC 9 [2006] 3 IR 213 considered - Offences Against the State (Amendment) Act 1972 (No 26), s 3 - Offences Against the State (Amendment) Act 1998 (No 39), s 3 - Leave to appeal refused (223/06 - CCA - 7/5/2008) [2008] IECCA 67

People (DPP) v Maguire

Facts: The applicant applied for leave to appeal against his conviction of membership of an unlawful organisation. The applicant contended that the trial judges erred in law in accepting that any weight could attach to the evidence of the Chief Superintendent as to his belief and failed to have sufficient regard to the jurisprudence of the European Court of Human Rights. The applicant further contended that the trial judges failed to have reference to the defence tendered and inferences were impermissibly drawn pursuant to s. 2 of the Offences Against the State (Amendment) Act 1998.

Held by the Court of Criminal Appeal in refusing the application that there was adequate evidence before the trial court, properly assessed, upon which to convict the applicant of the offence charged. The trial court took into account all of the evidence tendered on behalf of the applicant including his denial of membership on oath.

Reporter: R.W.

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

DPP v KELLY 2006 3 IR 115

COURTS OF JUSTICE ACT 1924 S29

DPP v SHERWIN UNREP SPECIAL CRIMINAL COURT 15.12.2006

DPP v KELLY UNREP CCA 6.12.2007 2007 IECCA 110

O'LEARY v AG 1993 1 IR 102 1991 ILRM 454

DOORSEN v NETHERLANDS 1996 22 EHRR 330

KOSTOVSKI v NETHERLANDS 1989 12 EHRR 434

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

CONSTITUTION ART 38

MATHEWS v DPP UNREP CCA 29.3.2007 2007 IECCA 23

DPP v DONOHUE UNREP CCA 26.10.2007 2007 IECCA 97

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

DPP v CRONIN 2006 4 IR 329

1

Judgment of the Court delivered on the 7th May 2008 by Macken, J.

Macken, J.
2

This is an application for leave to appeal against conviction, brought on behalf of the applicant who was convicted on the 18th day of October 2006, of membership of an unlawful organisation, and on the 30th November 2006 was sentenced to six years imprisonment.

3

The grounds of appeal, numbering nine in all, as filed, are clear and can be divided into the following groups:

4

1. The trial judges erred in law in accepting that any weight could attach to the evidence of the Chief Superintendent as to his belief. (Grounds 1 - 4);

5

2. The trial judges erred in law in failing to have adequate regard to the defence case and in particular to the sworn evidence of the applicant that he was not on the date in question a member of an unlawful organisation (Ground 5);

6

3. The trial judges erred in law in drawing adverse inferences from the manner in which the applicant dealt with questions put to him in garda interviews, in circumstances where he had furnished denials, and in arriving at the conclusion that he had given misleading answers; and further that there was corroboration of the belief evidence of a Garda Superintendent (Grounds 6 - 7);

7

4. The learned judges failed in law correctly to apply certain jurisprudence of the European Court of Human Rights (Grounds 8 - 9).

8

It is appropriate, having regard to the arguments made, to deal with the first and fourth items above first since they are interrelated to some extent, and to deal with the second and third items together, since they too are interlinked.

1. The Evidence of the Chief Superintendent (Grounds 1-4):
9

The evidence of a Chief Superintendent, which is admissible pursuant to provisions of s.3(2) of the Offences Against the State (Amendment) Act,1972, has now been the subject of a fairly significant number of cases, in the Supreme Court and this Court, and the jurisprudence in that regard is clear at this time. Section 3(2) of the said Act provides as follows:

"Where an officer of An Garda Siochana, 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."

10

The terms of this section have been considered in detail by the Supreme Court in a recent judgment,DPP v Kelly [2006] 3 IR 115, a case referred to that Court pursuant to a Certificate granted under the provisions of s.29 of the Courts of Justice Act 1924. Implicit in the granting of such a certificate is the precondition that the point of law raised is one of exceptional public importance and that it is in the public interest that such a question be referred to the Supreme Court for its determination. In that context, this Court considers that, quite apart from its binding effect on this court, the determination of the Supreme Court in DPP v Kelly, supra., is of particular significance. That Court found, unanimously, that the restriction on the right to cross-examine a Chief Superintendent as to the sources of his belief in the course of a trial, is not an infringement of the right to a fair trial guaranteed by the Constitution.

11

Mr McGuinness, SC, on behalf of the applicant argues that in the present case, however, the trial judges erred in giving any weight to the evidence of the Chief Superintendent, even if that evidence was admissible. It is contended that the real question for the trial court in a case such as this is to examine with particularity the weight to be attached to the evidence of belief, since this was being tendered against a denial of membership on the part of the applicant, and since the belief evidence cannot be challenged in cross-examination. Mr McGuinness compares the approach adopted by the trial judges in this case to a different approach which he says was adopted in the case ofDPP v Sherwin, Special Criminal Court, unreported, 15th December 2006.

12

For the Respondent, Ms Ring, SC, argued firstly that the trial Court was assessing matters of fact, and that there were ample facts to enable it decide on the appropriate weight to be given to the belief evidence. These facts included that; the witness had 35 years service in the Garda Siochana; had been involved in the investigation of subversive crime for 29 years; and was head of the Special Detective Unit involved in the provisions of State security, the investigation and monitoring of subversive crime and the assessment of intelligence. He had not based his belief on anything that happened on the date when the offence in issue occurred, nor on matters arising thereafter. He had received information about the applicant's status in the IRA at various time, and knew the identity of all the sources of the information, none of whom had been paid, so far as he knew, and none of whom had previous convictions, so far as he knew. Further he had checked the information, which came from both garda and non garda origins, by assessing it with other information and by looking at the totality of the same emanating from different sources, verifying also whether the sources had been accurate in the giving of information in the past. Counsel further submitted that the trial court was fully alert to the role it was required to exercise in relation to the garda witness's evidence.

13

Ms Ring also invoked a recent decision of this Court in the case ofDPP v Vincent Kelly, Court of Criminal Appeal, unreported, 6th December 2007, arguing that there were significant similarities between the two cases, and that in the latter case this Court had also upheld the decision of the trial judges.

Conclusion
14

This Court is bound by the decision in the case ofDPP v Martin Kelly, supra., and the earlier case of O'Leary v Ireland, [1993] 1 IR 102 which has been recognised by the Supreme Court as correctly stating the law. At the hearing before us it was clear that counsel for the applicant accepts that, in light of those cases, his argument, at least on this first ground, is directed towards the question of the weight to be attached to the statement of belief tendered, as opposed to any more underlying objection to the judgment. In essence counsel for the applicant submits that there was insufficient evidence upon which the trial judges could conclude that the evidence of belief was entitled to any weight. In that regard the written submissions filed set out part of the exchanges in the cross-examination of the witness in question, counsel contending that the evidence tendered was ambiguous. But it appears to this Court clear that the extract relied upon...

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3 cases
  • DPP v Maguire
    • Ireland
    • Court of Appeal (Ireland)
    • 23 Abril 2018
    ...principally relied upon to found the conviction. 29 He also seeks to distinguish The People (Director of Public Prosecutions) v. Maguire [2008] IECCA 67 on the basis ‘that in that case the court of trial gave greater consideration as to the weight to be attached to the belief evidence and i......
  • The People at the Suit of the Directorof Public Prosecutions v RK
    • Ireland
    • Court of Appeal (Ireland)
    • 21 Diciembre 2021
    ...period covered by the information. 38 . The Court contrasted the information that had been made available in the case of DPP v. Maguire [2008] IECCA 67, referring also to the very extensive experience of the Detective Chief Superintendent who was offering belief evidence in that case. The C......
  • DPP v Metcalfe
    • Ireland
    • Court of Appeal (Ireland)
    • 1 Julio 2020
    ...draws attention to the following passage in the judgment of the Court of Criminal Appeal delivered by Macken J. in DPP v. Maguire [2008] IECCA 67: “[i]t is his statement of belief which is granted status as admissible evidence pursuant to the Act of 1972. This was made clear by Costello J. ......

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