DPP v Vincent Kelly

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 06 December 2007
• Neutral Citation: [2007] IECCA 110
• Docket Number: [0144/2006]
• Court: Court of Criminal Appeal
• Date: 06 December 2007

DPP v Kelly

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

AND

VINCENT KELLY

APPLICANT

[2007] IECCA 110

[0144/2006]

Bill No. SP 6/05

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Offences against the State

Membership of unlawful organisation - Evidence of belief of Chief Superintendent - Weight to be attributed to evidence of belief - Whether court must explain weight attached to evidence of belief - Failure to answer questions - Whether necessary to distinguish between material questions and other questions - Whether necessary to identify material questions - No reference to standard of proof - Whether necessary to recite appropriate standard - Items found in van - Evidence insufficient to procure conviction for possession of firearm - No evidence of temporal relationship - Whether presence of applicant in proximity to items capable of amounting to corroboration - Cumulative effect of circumstantial evidence - Matrix of facts - Whether admission of evidence of belief infringement of right to cross-examination - Applicability of evidence in cases of organisations representing threat to State and individuals - Evidence to be given by members of An Garda Siochána - Applicability of evidence where ordinary courts inadequate -People (DPP) v Kelly [2006] IESC 20, [2006] 3 IR 115, O'Leary v Attorney General [1993] 1 IR 102, People (DPP) v Ferguson (Unrep, CCA, 27/10/1975), People (DPP) v Redmond [2004] IECCA (Unrep, CCA, 24/2/2004), People (DPP) v Cahill [2001] 3 IR 494, R v Exall (1866) 4 F&F 922, Kostovski v Netherlands (1989) 12 EHRR 434, Doorson v Netherlands (1996) 22 EHRR 330 considered - Offences Against the State Act 1939 (No 13), ss 2, 3 and 21 - European Convention on Human Rights, article 6 - (144/06 - CCA - 6/12/2007) [2007] IECCA 110

People (DPP) v Kelly

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

MISUSE OF DRUGS ACT 1977 S23(1)(a)

MISUSE OF DRUGS ACT 1977 S23

OFFENCES AGAINST THE STATE ACT 1939 S30

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)(d)

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

DPP v KELLY 2006 3 IR 115

REPORT OF THE COMMITTEE TO REVIEW THE OFFENCES AGAINST THE STATE ACTS 1938-1998 2002 123

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

DPP v FERGUSON UNREP CCA 27.10.1975 1975/ /511

DPP v REDMOND UNREP CCA KEANE 24.2.2004

DPP v CAHILL & COSTELLO 2001 3 IR 494 2001/7/1634

R v EXALL 1866 4 F&F 922

KOSTOVSKI v NETHERLANDS 1989 12 EHRR 434

DOORSON v NETHERLANDS 1996 22 EHRR 330

Finnegan J.

1 The applicant was charged with an offence contrary to section 21 of the Offences Against the State Act1939 as amended by section 2 of the Criminal Law Act 1976 of membership of an unlawful organisation. Particulars of the offence were that the applicant, on 7th June 2005, within the State was a member of an unlawful organisation, to wit an organisation styling itself the Irish Republican Army otherwise Óglaigh na hÉireann otherwise the IRA. He was convicted before the Special Criminal Court. Having applied to that court for a certificate that his case was a fit case to appeal, and such certificate having been refused, he now applies to this court for leave to appeal against said conviction and against the sentence of five years imposed upon him.

2 The applicant proposes to rely upon ten grounds of appeal as follows:-

3 1. The learned trial judges erred in fact and/or in law in accepting the evidence offered by Chief Superintendent Kelly, which was based on confidential information received, and formed the basis of a belief that the applicant was a member of an unlawful organisation styling itself the IRA.

4 2. The learned trial judges erred in fact and/or in law in failing to enquire adequately or at all into the origins of the confidential information relied upon by Chief Superintendent Kelly to base his belief that the applicant was a member of an unlawful organisation styling itself the IRA.

5 3. The learned trial judges failed to explain in their judgment the process in which they engaged whereby they decided to rely upon the belief of the Chief Superintendent to convict the applicant in circumstances where the Chief Superintendent claimed privilege over the origins of his confidential information.

6 4. The learned judges erred in deciding to rely upon the evidence of belief offered by the Chief Superintendent without explaining the weight they attached to the evidence of the Chief Superintendent, in view of the antiquity of the belief and the claim to privilege made and attached to the evidence, which was used to convict the applicant.

7 5. The learned trial judges erred in law or in fact and/or in a mixture of law and fact in drawing adverse inferences, pursuant to section 2 of the Offences Against the State Act 1998, from the manner in which the applicant answered and/or refused and/or failed to answer questions material to membership of an unlawful organisation.

8 6. The learned trial judges erred in law or in fact and/or in a mixture of law and fact in failing to have any adequate regard to the standard of proof required in a criminal trial.

9 7. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in failing to distinguish those questions from which they drew an adverse inference pursuant to section 2 of the Offences Against the State Act 1998 and those questions from which the learned trial judges refused to draw an adverse inference.

10 8. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in finding that the circumstances of the applicant's arrest were capable of corroborating the other evidence offered by the prosecution and support of the contention that the applicant was a member of an unlawful organisation and inconsistent with any other reasonable explanation.

11 9. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in finding that the presence of the applicant's fingerprint on the inside of the rear or back of the van, was sufficient to connect the applicant to the material which was recovered from the back of the van, in circumstances where the applicant was only ever observed as a passenger in the van. The presence of the material in the back of the van was found by the learned trial judges to corroborate the belief of the Chief Superintendent.

12 10. The learned trial judges erred in law and in fact and/or a mixture of both law and fact in failing to address in their judgment the submissions made by counsel for the applicant.

13 The applicant was arrested and charged with the offence in the following circumstances. On 7th June 2005 at about 10 p.m. three uniformed Gardaí were travelling in an unmarked car on Malahide Road, Dublin. While stopped at a pedestrian crossing where they could see into Marino Avenue they saw a man get into a black BMW motor car which had three other occupants. They followed the BMW which appeared to be travelling in company with a white Opel Astra estate van. The BMW and the Opel performed a U turn near Mount Temple School and shortly afterwards pulled into the side of the road. The applicant got out of the Opel and was standing at the footpath. The BMW moved towards him but then sped off. Garda Gilmartin approached the Opel while his two colleagues in the unmarked patrol car activated their blue light and pursued the BMW into an adjoining street where they stopped it. Garda Gilmartin asked the applicant to get back into the Opel which he did but at the same time the driver opened the rear door of the same and a man who was in the rear of the same got out, ran across the road, climbed the railings to Mount Temple School and escaped. Pursuant to section 23(1) (A) of the Misuse of Drugs Act1977 the Opel was taken to a Garda Station to be searched. The following items were found in the van: a small canister of "mace" in the driver's door, in the rear two balaclavas, a pair of black woollen gloves, a handgun and another black woollen glove. The handgun was partially concealed under the black woollen glove, these items being at the partition that separates the front and rear of the van and between the driver's and passengers seats. The applicant was arrested where the Opel was stopped also pursuant to section 23 of the 1977 Act. At 11.45 p.m. he was released from this detention and arrested under section 30 of the Offences Against the State Act 1939 on suspicion of having committed a scheduled offence, being an offence of possession of a firearm. In the course of his detention three interviews were conducted under the terms of the Offences Against the State (Amendment) Act 1998 section 2.

14 In the course of his detention the applicant's clothing was removed for forensic examination. Underneath his outer garment he was wearing a t-shirt which had emblazoned on it " Óglaigh na hÉireann" together with an image of a number of men in combat gear wearing balaclavas apparently discharging weapons into the air. Underneath the image was the legend "unbowed and unbroken". On a forensic examination of the Opel the applicant's fingerprint was found on the inside of the back of van.

The grounds of appeal can be grouped together as follows:-

15 (a) Grounds one to four inclusive relate to the evidence of belief of Chief Superintendent Philip Kelly.

16 (b) Grounds five and seven relate to the applicant's interviews conducted pursuant to the Offences Against the State (Amendment) Act1998 section 2.

17 (c) Ground six relates to the standard of proof applied by the trial court.

18 (d) Grounds eight and nine relate to the fingerprint evidence and material found in the van.

19 (e) Ground ten concerns...