DPP v McHale
| Jurisdiction | Ireland |
| Judge | Mr. Justice McCarthy |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] IECA 325 |
| Docket Number | [73/2017] |
| Court | Court of Appeal (Ireland) |
| Date | 31 July 2018 |
[2018] IECA 325
[73/2017]
THE COURT OF APPEAL
Conviction – Membership of an unlawful organisation – Unlawful arrest – Appellant seeking to appeal against conviction – Whether the trial court was wrong in its determination that the appellant was lawfully arrested
Facts: The appellant, Mr McHale, was convicted of the offence of membership of an unlawful organisation (the IRA) on the 2nd November 2013 contrary to s. 21 of the Offences Against the State Act 1939, the judgment of the Special Criminal Court having been given on the 22nd February 2017. The appellant appealed to the Court of Appeal against that conviction, submitting that the trial court: (i) was wrong in its determination that the appellant was lawfully arrested by Detective Garda Ryan; (ii) was wrong in its acceptance of, and reliance upon, the evidence of Assistant Commissioner Finn; (iii) erroneously concluded that the appellant had failed to answer material questions within the meaning of the Offences Against the State (Amendment) Act 1998 because they were demonstrably false or untrue and that the memoranda and that the rejection of the veracity of what the accused said in the first two; (iv) erroneously concluded that the appellant was in possession of explosives.
Held by the Court that whether or not the belief of Detective Garda Ryan at the time of the arrest was objectively reasonable was a question of fact for the trial court and the Court thought that on the evidence the trial court properly reached the conclusion that this was so. With respect to the evidence of Assistant Commissioner Finn, the Court could not see the basis on which it was asserted that the trial court attached undue weight to it or were in error in accepting it. Insofar as it was contended by the appellant that the trial court was wrong in law and fact in its conclusion that he failed to answer material questions pursuant to the 1998 Act with particular reference to questions about the van or the gloves, the Court could not see how the questions on those topics could be anything other than material and indeed highly so. Regarding the submission that the trial court fell into an error of fact or law in its conclusion of fact that the appellant was in possession of the explosives, the Court held that there was ample evidence upon which that conclusion could be reached with particular reference to the fact that the bags of fertilizer were in the plain sight of the appellant in a van which he had driven from Cork to Monaghan and scientific evidence connected him with a precisely similar substance as that contained in the bag, via the gloves.
The Court held that it would dismiss the appeal.
Appeal dismissed.
This is an appeal from the conviction of the accused for the offence of membership of an unlawful organisation (the IRA) on the 2nd November 2013 contrary to s. 21 of the Offences against the State Act 1939 as amended by s. 48 of the Criminal Justice (Terrorist Offences) Act 2005, the judgment of the Special Criminal Court having been given by Kennedy J. on the 22nd February 2017.
As found by the trial court, the accused travelled from Cork to Co. Monaghan on the 1st November 2013 and the van which he was driving, in the company of a younger man, one Mr. Roche, was seen parked in the forecourt of a garage in Monaghan at around 11.30 pm. Detective Garda Emmet Ryan on stopping near the van and approaching the accused, announced he was a garda and displayed his identification as such. Upon enquiry as to his name, Mr. McHale gave it, and Cork address, but did not reply when it was first enquired of him as to why he was in Monaghan. When asked again, he said 'We're just driving around, like' and 'We came to Monaghan for a spin'. The van was registered in Cork. He thought that the accused was hesitant and nervous. He refused to tell him the identity of the owner of the vehicle, merely saying that it was owned by a friend. It was established by Detective Garda Ryan that in any event it was not registered to the accused or his passenger. The Garda then carried out a search of the vehicle, as he was entitled to do. There was no partition between the front seats and the rear. Inside, he found a considerable number of bags of fertiliser (subsequently established in evidence by Dr Hannigan of Forensics Ireland to be a substance capable of being used for the production of explosives). On a later search of the vehicle a pair of gloves was found in the passenger foot-well and it is not in dispute that the substance found on the outside of the gloves was of the same kind as that contained in the bags: the accused had given bodily samples when in Garda custody, in as much as he was arrested on the occasion in question, from which his DNA was extracted. Tape lifts having been taken from the gloves and cell samples thereby obtained were found, similarly, to contain the accused's DNA. No one has raised any issue about the finding of Dr. Connolly (for it was she who performed the relevant tests) to the effect that the chance of someone other than the accused having the same profile as that obtained from the gloves was less than one in 1,000,000,000. Thus clear connection was made between the accused and the fertiliser which is an explosive within the meaning of the Explosive Substances Act 1883.
The accused was interviewed on seven occasions after his arrest. The first two interviews were conducted in what one might describe as the ordinary way, under caution, and he informed them inter alia that he had agreed with his companion Mr. Roche to go to Cavan to meet the latter's cousins and had obtained a loan of the van from a friend whom he refused to identify. He gave different times of departure from Cork and whilst he accepted he had seen the bags, he denied handling or touching them subject to the fact that he may have pushed a bag of blocks when the Gardaí opened the rear door. He did not use his own car for the journey as he did not feel it was reliable, needed a service and the diesel was cheaper but when the car was subsequently inspected by the Gardaí it was found to be in good working order and to have a valid NCT. He denied membership of the IRA or association with any member thereof with one exception.
On enquiry of Garda O'Driscoll at his local headquarters as to the ownership of the van it was established that it did not belong to either of the occupants he was told...
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