DPP v Nolan

JurisdictionIreland
JudgeMr. Justice Edwards
Judgment Date27 July 2015
Neutral Citation[2015] IECA 165
Date27 July 2015
CourtCourt of Appeal (Ireland)
Docket NumberRecord No: CA 346/2012 Bill No: SC002/2012

[2015] IECA 165

THE COURT OF APPEAL

Ryan J.

Birmingham J.

Edwards J.

Record No: CA 346/2012

Bill No: SC002/2012

The People at the Suit of the Director of Public Prosecutions
Respondent
and
Robert Nolan
Appellant

Conviction – Membership of an unlawful organisation – Unsafe conviction – Appellant seeking to appeal against conviction – Whether appellant”s trial was satisfactory

Facts: The appellant, Mr Nolan, was a passenger in a Ford Mondeo stopped by two members of the armed response unit of An Garda Síochána on 11th January 2012. The appellant was arrested under s. 30 of the Offences Against the State Act 1939 and was taken to Roxboro Road Garda Station in Limerick where he was detained. Nine interviews were conducted with him while he was detained. The appellant was tried before the Special Criminal Court from October to November 2012 in respect of a single count that on 11th January 2012 he was a member of an unlawful organisation, namely the IRA, contrary to s. 21 of the 1939 Act. At the appellant”s trial, the prosecution contended that the appellant had refused to answer material questions that were put to him in the course of those interviews, and by virtue of his failure to answer material questions put to him that the court was entitled, and ought properly, to infer that he had been unwilling to do so because he knew that his answers would not stand up to probing and scrutiny. The prosecution also relied on the evidence of Detective Chief Superintendent Donohue, who expressed his belief that the appellant was a member of the IRA. The Chief Superintendent asserted that the belief that he held was independent of the investigation undertaken in relation to the appellant”s arrest in January 2012. The prosecution submitted that support and corroboration for the belief expressed by the Detective Chief Superintendent was found in the suggested adverse inference which, they contended, the court was entitled, and ought properly, to draw from his refusal to answer material questions that had been put to him, as well as the general circumstances in which the appellant had been encountered upon being stopped and detained, including that he had been travelling in the front passenger seat of a vehicle being driven at the time by a convicted IRA member, and that a concealed firearm had been found under his seat. In November 2012, the court delivered a reserved judgment in which it convicted the applicant of the charge. In December 2012, he was sentenced by the court to three and a half years imprisonment to date from 1st October 2012. The appellant then appealed to the Court of Appeal against his conviction on six grounds: 1) The court erred in law in holding that there was sufficient evidence to convict the applicant; 2) The court erred in law in holding that, pursuant to s. 2 of the Offences Against the State (Amendment) Act 1998, it was entitled to draw an inference that the applicant was a member of the IRA; 3) The court having held that it was entitled to draw an inference that the applicant was a member of the IRA pursuant to s. 2 of the 1998 Act, did not proceed to consider that it was proper to do so; 4) There was insufficient evidence from the applicant”s interviews with the Gardaí for the court to properly infer that the applicant was a member of the IRA pursuant to s. 2 of the 1998 Act; 5) There was no evidence to corroborate the evidence of the Superintendent, therefore there was insufficient evidence before the court to convict the applicant; 6) The opinion evidence of the Superintendent was inadmissible. The respondent, the DPP, submitted that the Special Criminal Court correctly considered that the appellant”s failure to answer material questions justified them in properly drawing the inferences that he had deliberately chosen to do so because he was unable to provide responses that would stand up to scrutiny, because he was in fact a member of the IRA on the date in question. The respondent argued that these inferences were capable of supporting, and corroborating in that sense, the evidence of the Chief Superintendent.

Held by Edwards J that, having adopted The People (DPP) v Derek Palmer (unreported, Court of Appeal, 20th July 2015), the Special Criminal Court considered the questioning of the accused carefully and arrived at a conclusion which was unchallengeable on appeal. Edwards J held that there was no basis for believing that the Special Criminal Court erred in its application of relevant legal principles or in its consideration and assessment of the belief evidence of the Chief Superintendent.

Edwards J held that the appellant”s trial was satisfactory and that his conviction was safe. Therefore the Court dismissed the appeal.

Appeal dismissed.

Judgment of the Court delivered on the 27th day of July, 2015 by Mr. Justice Edwards
Introduction
1

The appellant was tried before the Special Criminal Court from the 30th October to the 2nd November 2012 in respect of a single count that on the 11th of January 2012 he was a member of an unlawful organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the IRA, 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).

2

On the 14th of November 2012, the Court delivered a reserved judgment in which it convicted the applicant of the charge. On the 11th of December 2012, he was sentenced by the court to three and a half years imprisonment to date from the 1st of October 2012.

3

The appellant now appeals against his conviction only.

The evidence before the Special Criminal Court
4

On January 11th 2012 two members of the armed response unit of An Garda Síochána were on patrol in the Hyde Road area of Limerick City in a marked armed response unit vehicle when they encountered a Ford Mondeo motor car and, having followed it for a short distance, decided to stop it. At Beechgrove Avenue the Gardaí activated their blue lights and the Ford Mondeo stopped in response thereto. The Garda vehicle drew alongside the Ford Mondeo and a conversation ensued between the Garda seated in the front passenger seat of the Garda vehicle and the driver of the Ford Mondeo.

5

The driver of the Ford Mondeo correctly identified himself as a Mr Dermot Gannon and specified his address. Mr Gannon had been previously convicted by the Special Criminal Court of membership of an unlawful organisation styling itself the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise the IRA, contrary to s. 21 of the Offences Against the State Act 1939. The appellant was sitting in the front passenger seat of the Ford Mondeo.

6

Sergeant Ryan, the senior officer in the Garda vehicle and the driver thereof, was in possession of certain information, namely that the said Mr Gannon was a person who had access to firearms. Sergeant Ryan formed a suspicion that a firearm was to be found in the Ford Mondeo vehicle. Having closed the window of the Garda vehicle, he so informed his colleague, Garda Canny. He then reversed the Garda vehicle to allow his colleague to get out of it, following which he also got out of the Garda vehicle and approached the Ford Mondeo. Mr Gannon was out of the vehicle at this stage and speaking to Garda Canny at the rear of it. The appellant was still seated in the front passenger seat at this point. Garda Canny then instructed the appellant to get out of the car which he did. Sergeant Ryan then invoked the power to search the Ford Mondeo under s. 30 of the Offences Against the State Act 1939 and found a Webley Revolver within a brown paper bag located under the front passenger seat. Dermot Gannon immediately admitted that he was responsible for the weapon.

7

Dermot Gannon was subsequently charged with, and was convicted of, being in possession of the said weapon in suspicious circumstances. The appellant was never accused of possession of the firearm or ammunition.

8

The appellant was arrested under s. 30 of the Offences Against the State Act, 1939 and was taken to Roxboro Road Garda Station in Limerick where he was detained. The appellant had access to legal advice during his detention and prior to several of the nine interviews conducted with him while he was detained. The contents of the written records of interviews one to five, inclusive, and seven to nine, inclusive were agreed as between the prosecution and the defence prior to their being placed in evidence before the Court. Interview six contained nothing of evidential value and was not placed in evidence.

9

In the course of the first six of his interviews the appellant acknowledged being in the car at the time that it was stopped by the Gardaí, and that it was being driven by Dermot Gannon. He accepted that the Webley revolver had been found in the car but claimed to have been unaware of its presence there and to have no knowledge of it. When asked to account for his movements, and specifically why he was in the car he said that, having received a call from Dermot Gannon on his brother's mobile phone, he had met up with Gannon and had come to Limerick with him for the spin. He said that he had no money and it was just to kill a few hours. He further acknowledged also being in Limerick earlier that week having travelled down from Dublin on Sunday evening the 8th of January 2012 and having returned on Monday the 9th of January 2012. He claimed, inter alia, he did not know where he had stayed on that occasion or with whom, that he did not know when exactly on the Monday he had returned to Dublin, that he could not recall what car he had travelled in, and that he could not in fact recall the journey back to Dublin. He claimed that while in Limerick on the Sunday night he had been drinking...

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2 cases
  • Director of Public Prosecutions v Smith
    • Ireland
    • Court of Appeal (Ireland)
    • 8 March 2023
    ...I.R. 753; The People (Director of Public Prosecutions) v. Weldon [2018] IECA 197; The People (Director of Public Prosecutions) v. Nolan [2015] IECA 165 and the case of The People (Director of Public Prosecutions) v. Binéad & Donohue [2007] 1 I.R. 374, are cited as examples. However, in the ......
  • DPP v Conor Metcalfe
    • Ireland
    • Court of Appeal (Ireland)
    • 18 February 2021
    ...evidence must include the belief evidence of a Chief Superintendent rendered admissible as evidence by statute. Indeed, in DPP v. Nolan [2015] IECA 165, this Court re-affirmed the decision of the former Court of Criminal Appeal in DPP v. Donnelly [2012] IECCA 78 that inferences drawn from a......

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