DPP v Metcalfe

JurisdictionIreland
JudgeBirmingham P.
Judgment Date01 July 2020
Neutral Citation[2020] IECA 176
Docket Number[118/19]
CourtCourt of Appeal (Ireland)
Date01 July 2020
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Damien Metcalfe
Appellant

[2020] IECA 176

The President.

Edwards J.

McCarthy J.

[118/19]

THE COURT OF APPEAL

Conviction – Membership of an unlawful organisation – Belief evidence – Appellant seeking to appeal against conviction – Whether the trial court was entitled to have regard to the evidence of the Chief Superintendent

Facts: The appellant, Mr Metcalfe, on 26th February 2019, stood trial before the Special Criminal Court charged with the offence of membership of an unlawful organisation. The trial concluded on 21st March 2019. On 17th May 2019, the court delivered a judgment which convicted the appellant of the offence charged. On 27th May 2019, the appellant was sentenced to a term of two and a half years’ imprisonment, backdated to 6th May 2019 to take account of time spent in custody while on remand. He appealed to the Court of Appeal against that conviction on the following grounds: (i) to (v) the belief evidence of Chief Superintendent Howard; (viii) to (x) the identification of the appellant on the audio recording; (xi) the failure to consider whether the appellant was merely assisting the IRA (an offence contrary to s. 21A of the 1939 Act); (xii) to (xiii) the invocation of s. 2 of the Offences Against the State (Amendment) Act 1998; and (xiii) the failure to withdraw the case from further consideration at the close of the prosecution case.

Held by the Court that: (i) to (v) the trial court was fully entitled to have regard to the evidence of Chief Superintendent Howard and the approach adopted by the trial court of assessing all of the admissible evidence was precisely what the court had been mandated to do by the Supreme Court in Redmond v Ireland [2015] 4 IR 84; (viii) to (x) it agreed with the submissions of the respondent, the Director of Public Prosecutions, that the findings made by the trial court were justified and warranted and came against a background of the court having listened to three days of recordings, and then having listened once more to relevant parts of the recordings at the deliberation stage; (xi) the conduct in which the appellant had engaged was potentially consistent, both with membership, and with assisting an unlawful organisation, and the Court found no error in the Special Criminal Court having considered that it was nonetheless capable of providing the necessary support/corroboration for the belief evidence provided by the Detective Chief Superintendent; (xii) to (xiii) the trial court’s approach to the question of the invocation of s. 2 of the 1998 Act was an appropriate one; and (xiii) it regarded the suggestion that the case should have ended following the closing of the prosecution case and should not have been further considered to be a suggestion entirely without merit.

The Court held that it had not been persuaded to uphold any ground of appeal, nor had any doubt been raised about the safety of the conviction or the fairness of trial. The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 1 st day of July 2020 by Birmingham P.

1

. On 26 th February 2019, the appellant stood trial before the Special Criminal Court charged with the offence of membership of an unlawful organisation. The trial concluded after seventeen days on 21 st March 2019. On 17 th May 2019, the Court delivered a judgment which convicted the appellant of the offence charged. Subsequently, on 27 th May 2019, the appellant was sentenced to a term of two and a half years' imprisonment, backdated to 6 th May 2019 to take account of time spent in custody while on remand. He has now appealed against that conviction. The DPP initially sought a review of the sentence on grounds of undue leniency, but at the commencement of the oral hearing, counsel on her behalf indicated that she was not now proceeding with that application.

2

. The factual backdrop to the prosecution is the same as existed in the case of DPP v. Hannaway & Ors [2020] IECA 38, in which this Court delivered judgment on 6 th February 2020. Given the considerable detailed narrative set out in the body of that judgment, we do not propose to repeat that exercise herein. Suffice to say that the prosecution case was that IRA business, in the form of a “Court of Inquiry”, was conducted at 10 Riverwood Park, Castleknock, in Dublin on 7 th and 8 th August 2015. The purpose of the inquiry was to ascertain how certain IRA operations were frustrated, involving the arrest and prosecution of IRA members. The prosecution case was that the appellant attended at 10 Riverwood Park in his capacity as a member of the IRA, and that while present, was interviewed in the course of the inquiry.

3

. The trial court heard that a surveillance operation was put in place by members of the National Surveillance Unit (“NSU”) – focused on 10 Riverwood Park – on 7 th and 8 th August 2015. A surveillance device (or devices) capable of recording audio from within that location was deployed by the NSU in accordance with the terms of an authorisation obtained from the District Court. The movement of persons, including the appellant, and a number of vehicles to and from 10 Riverwood Park on 7 th and 8 th August were monitored by members of the NSU. Central to the prosecution case was the audio recording from 10 Riverwood Park of 7 th and 8 th August 2015.

4

. The case against the appellant involved a number of elements, these being:

  • (a) The belief evidence of Detective Chief Superintendent Anthony Howard of the Special Detective Unit of An Garda Síochána that the appellant was, on the date in question, a member of an unlawful organisation;

  • (b) The participation by the appellant in the IRA inquiry on 7 th and 8 th August 2015 at 10 Riverwood Park; and,

  • (c) Adverse inferences drawn from the appellant's failure to answer material questions put to him during the course of interviews conducted following the invocation of s. 2 of the Offences Against the State ( Amendment) Act 1998.

Grounds of Appeal
5

. In all, the following fourteen grounds of appeal were set out:

  • (i) The court of trial erred in law and in fact in failing to withdraw from further consideration the issue of the belief evidence of the Chief Superintendent in circumstances where he had given entirely contradictory evidence as to the basis for his belief and where he had claimed privilege in relation to all enquiries made by the defence regarding the basis of his belief, and thus had ensured there was no examinable reality to this piece of evidence;

  • (ii) The court of trial erred in failing to address the significance of the contradictions as to the basis for the Chief Superintendent's belief in view of the extensive nature of the privilege claimed by the Chief Superintendent in relation to the materials grounding his belief which was upheld by the court of trial and which disabled the defence from effective cross-examination;

  • (iii) The court of trial erred in law and in fact in upholding general or blanket claims of privilege in relation to general matters such as the duration of time, which the underlying information covered, and further failed to give any or any cogent reasons for its decision;

  • (iv) The court of trial erred in law and in fact in holding that there was evidence on which it could hold that the Chief Superintendent's belief was based on Garda sources only and, in effect, without any basis for doing so, discounted the significance of the contradiction in the evidence of the Chief Superintendent as to whether his belief was based on Garda sources only or sources other than Garda sources;

  • (v) The court of trial erred in holding that circumstantial evidence could corroborate or support the belief evidence of the Chief Superintendent in circumstances where there was a contradiction in that evidence going to the very core of the belief in circumstances where this could not be further explored due to extensive claims of privilege;

  • (vi) The court of trial erred in law and in fact in ruling as valid the authorisation made pursuant to s. 5 of the Criminal Justice (Surveillance) Act 2009;

  • (vii) The court of trial erred in law and in fact in allowing into evidence recordings obtained on foot of the aforesaid authorisation;

  • (viii) The court of trial erred in law and in fact in addressing the evidence in the case and in its finding that the Court was entitled to find beyond any reasonable doubt that it could identify the voices of various people heard on a surveillance tape when the prosecution had decided not to lead any evidence purporting to identify the individual voices and where, as a result, the defence were not in a position to address the Court in relation to these identifications prior to the Court giving its final judgment;

  • (ix) The court of trial erred in law and in fact in identifying the accused as having spoken certain words on the surveillance tape introduced in evidence when this identification was never contended for by the prosecution and where no expert or other evidence was led in relation to this identification;

  • (x) The court of trial erred in law and in fact in basing its findings on certain timings when there was no evidence in relation to the accuracy of these timings and where the prosecution had not contended for them;

  • (xi) The court of trial erred in law and in fact in finding beyond a reasonable doubt that the conversation heard on the surveillance tape were consistent only with the accused being a member of the IRA and in failing to consider properly or at all the possibility that the accused was helping or assisting the IRA despite argument to this effect, and despite the fact that the DPP had charged two of those present at the relevant time with the separate offence of assisting the IRA only;

  • (xii) The court of trial erred in law in...

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1 cases
  • The People at the Suit of the Directorof Public Prosecutions v RK
    • Ireland
    • Court of Appeal (Ireland)
    • 21 Diciembre 2021
    ...there will be other cases where the evidence other than belief is particularly powerful or cogent. In a recent case of DPP v. Metcalfe [2020] IECA 176, we described the evidence there as “crushing”. In such cases, the evidence of the Chief Superintendent would be much less significant, thou......

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