DPP v Weldon

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 27 June 2018
• Neutral Citation: [2018] IECA 197
• Docket Number: 27/2017
• Court: Court of Appeal (Ireland)
• Date: 27 June 2018

[2018] IECA 197

THE COURT OF APPEAL

Hedigan J.

Mahon J.

Edwards J.

Hedigan J.

27/2017

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PLAINTIFF/RESPONDENT

AND

DARREN WELDON

DEFENDANT/APPELLANT

Criminal law – Membership of a proscribed organisation - Appeal against conviction - Belief evidence - Corroborative and independent evidence - Factual error - Offences against the State (Amendment) Act 1972

Facts: In these proceedings, the appellant sought to appeal a conviction of the Special Criminal Court for the offence of membership of an unlawful organisation. The appellant submitted twenty-four grounds of appeal.

During the course of the hearing, a Chief Superintendent gave belief evidence that the appellant was a member of an unlawful organisation. Such evidence is permitted under section 3(2) of the Offences against the State (Amendment) Act 1972, though this category of evidence must be supported by other credible independent evidence that implicates the accused in the offence charged, is credible in itself, and is independent of the witness giving the evidence (see Redmond v. Ireland [2015] IESC 98).

Held that the appeal would be allowed. Section 3(2) of the Offences against the State (Amendment) Act 1972 greatly inhibited an accused’s ability to challenge belief evidence and therefore a Court must take care to ensure the fairness of the trial is maintained. In this case, the trial judge had stated that the Chief Superintendent’s belief evidence was admissible because it was supported, inter alia, by the fact that Gardaí had two photographs on the appellant’s mobile telephone in which the appellant was allegedly pictured with two other individuals who were said to have criminal convictions for membership of an unlawful organisation. This finding was factually incorrect because the photographs did not actually contain the appellant himself. Furthermore, the two aforementioned individuals did not have convictions for membership of an unlawful organisation. This evidence therefore impacted upon the reliability of the Chief Superintendent’s belief evidence. Because the Court was unable to determine whether this piece of evidence in the overall case was conclusive or not in convicting the appellant, the conviction was deemed to be unsafe.

Appeal allowed

Judgment of the Court delivered on the 27th day of June, 2018 by Mr. Justice Hedigan

Nature of the Appeal

1 The appellant was convicted by the Special Criminal Court of the sole count of membership of an unlawful organisation, that being the Irish Republican Army, otherwise the I.R.A, otherwise Óglaigh na hÉireann, contrary to s.21 of the Offences Against the State Act, 1939. The appellant was sentenced on the 15th of December 2016 to five years imprisonment with 12 months suspended. The appellant puts forward 24 grounds of appeal against conviction.

Background

2 The appellant was brought before the court arising from an incident which took place on the 22nd of February 2010 at Newry courthouse, County Down. Between 10-10.30 pm, a number of people observed a car parked at the courthouse entrance, which then reversed and backed-up against the gate of the entrance. Sergeant Patterson and Sergeant Gilmore of the Police Service of Northern Ireland then arrived on the scene.

Somewhere around 10pm, two phone calls were made by a caller who did not identify himself but did say ‘This is the real IRA’. The calls were made to the Canal Court Hotel in Newry, and to the Daisy Hill Hospital, also in Newry, to say that there was a bomb in Newry courthouse that would detonate within 30 minutes. A code word was also provided.

A bomb exploded in the vehicle outside the courthouse around 10.35pm.

3 An investigation subsequently took place, which found that the vehicle in question was a brown Mazda 6, which was unlawfully taken from a residential area in County Dublin between the 2-3rd of January 2010. The car's registration number was 09D7439, however a different registration number was found at the scene of the bombing. The car was owned by a financial institution but was in possession of a staff member at the time it was taken. The registration number 09MH2297 found at the scene of the bombing could be linked to a different vehicle, a Peugeot Partner van which was owned by a limited company.

4 In October 2014, Detective Superintendent Thomas Maguire became aware of information which gave him reason to believe or suspect that the appellant was connected with the courthouse bombing. A warrant was successfully obtained under s.29 of the Offences Against the State Act by Detective Sergeant Padraig Boyce to search a residential premises at Boyne View, Trim, County Meath. Detective Sergeant Boyce and Detective Garda Kieran Regan arrested the appellant outside the premises on the 14th of October 2014 under s.30 of the Offences Against the State Act, 1939 on the suspicion of two offences, those being membership of an unlawful organisation, the I.R.A, and for possession of explosives on the 22nd of February 2010. The appellant was detained in Finglas Garda Station under s.30 where photographs, fingerprints and forensic evidence was taken, including buccal swabs which were then sent to the Forensic Science Laboratory in Dublin.

5 The appellant was interviewed on six occasions. He was questioned in relation to the vehicle used in the explosion in Newry and in relation to the theft of that vehicle. He was subsequently interviewed about membership of an unlawful organisation, being the I.R.A. He denied being or having ever been a member of that organisation. He obtained legal advice and had a solicitor present with him during each interview.

6 The forensic samples taken were compared with samples taken from the vehicle number plate found at the scene of the explosion outside the Newry courthouse. At trial, prosecution evidence was that the possibility of an error in finding the matching DNA profiles that they did, which linked the appellant to the scene in Newry, is less than one in one thousand million.

7 At trial, Chief Superintendent Peter Kirwan gave evidence of belief that the appellant was a member of an unlawful organisation. He claimed privilege over the sources of his belief evidence on the grounds of state security, protection of life and property and ongoing operations. He was not prepared to reveal where his sources came from and upon what his beliefs were based. In the court's judgment, it was accepted that his belief evidence was based on confidential information available to him and not based on any conduct or statements made during the investigation nor upon the attendance of the appellant of the funeral of the late Alan Ryan in 2012, a man who had a conviction before the Special Criminal Court for unlawful activity connected to the same unlawful organisation. The Chief Superintendent also stated that his opinion evidence was not based on DNA evidence.

8 The court referred to s. 3(2) of the Offences Against the State (Amendment) Act, 1972, which states:

‘Where an officer of the Garda Síochána, 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.’

The court considered the Supreme Court case of Redmond v Ireland [2015] IESC 98 which held that the interpretation of s. 3(2) of the 1972 Act is that there is a requirement that belief evidence be supported by other credible independent evidence.

9 The court accepted the belief evidence and was satisfied that there were no issues surrounding the arrest of the appellant pursuant to s.30 of the Offences Against the State Act, 1939, nor were there issues surrounding the circumstantial evidence provided by the prosecution. The court held:

“The Court has weighed and evaluated the various strands of evidence set out above and has concluded that all strands of evidence relied on by the Court as outlined above point only in the direction of guilt. On the totality of this evidence, it cannot discern a reasonable possibility consistent with the proposition that the accused is innocent of the charge of membership of an unlawful organisation. None of the individual components would perhaps be enough on their own to convict the accused of this offence but the combination identified by the Court above together with the particular weight of the DNA evidence is sufficient to convince this Court that it is proper to convict the accused of the single offence on the indictment.”

Personal Circumstances

10 The appellant was born in August 1971, making him 47 years of age. He was 46 years old when convicted. He is originally from Kilbarrack, County Dublin but was living in Trim, County Meath when arrested. He had previously worked as a taxi driver, and a floor and carpet fitter. He has no previous convictions.

Sentence

11 The court imposed a headline sentence of six years but reduced by one year due to the mitigating factors of the appellant's previous good character, consideration of his future prospects, and the appellant's approach to the trial. It was pleaded in mitigation that the appellant had a long history of consistent employment and that he has been law abiding until he appeared before the court at the age of 46.

12 A further year was suspended on the conditions that the appellant enter into a bond of €300 to keep the peace and to be of good behaviour while in prison and for two years post release.

Grounds of Appeal

13 Counsel for the appellant in their submission put forward the following grounds of appeal:

14 The trial court erred in that it:

(i) misdirected itself in law and in fact in holding that the refusal by the Chief Superintendent to provide details underlying...