People (DPP) v Binead

• Jurisdiction: Ireland
• Judge: Macken, J.
• Judgment Date: 28 November 2006
• Neutral Citation: [2006] IECCA 147
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. Nos. 237 and 243 of
• Date: 28 November 2006

DPP v BINEAD & DONOHUE

Between:

The People at the Suit of the Director of Public Prosecutions

And

NIALL BINEAD and KENNETH DONOHUE

Applicant

[2006] IECCA 147

Macken, J.

Budd, J.

De Valera, J.

237/04

243/04

THE COURT OF CRIMINAL APPEAL

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2

COURTS OF JUSTICE ACT 1924 S29

DPP v KELLY 2006 2 ILRM 321

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

DPP v SPECIAL CRIMINAL COURT & WARD 1999 1 IR 60

EDWARDS & LEWIS v UNITED KINGDOM 2003 15 EHRR

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

CONSTITUTION ART 38

O'LEARY v AG 1993 IR 102

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S3(2)

KOSTOVSKI v NETHERLANDS 1989 12 EHRR 434

DOORSEN v NETHERLANDS 1996 22 EHRR 330

OFFENCES AGAINST THE STATE (AMDT) ACT 1972 S3

OFFENCES AGAINST THE STATE (AMDT) ACT 1998 S4

1 28th day of November 2006 by Macken, J.

2 Each of the Applicants was charged that on the 10th October 2002 he was a member of an illegal organisation, that is to say, the Irish Republican Army, otherwise known as the IRA, otherwise known as Oglaigh na hEireann, contrary to S.21 of the Offences Against the State Act 1939, as amended by S.2 of the Criminal Law Act 1976. The trial took place before the Special Criminal Court (O'Donovan, J., J. Matthews and D.J. Hamill), over a period of eight days in October 2004, and the trial court delivered judgment on the 18th November of that year. Both Applicants were convicted of the charges, and each was sentenced, on the 30th November 2004, to four years imprisonment.

3 From those convictions the Applicants seek leave to appeal against conviction. The applications, which are being dealt with together, originally came on for hearing on the 25th November 2005. Shortly after the applications were opened they were adjourned pending a decision of the Supreme Court in an appeal in which a certificate for leave to appeal had been granted pursuant to s.29 of the Courts of Justice Act 1924, on the basis that the judgment in that case would be likely to be of relevance to these applications. Judgment in DPP v Kelly (unreported, The Supreme Court, 4 April 2006), was duly delivered, and these applications were then heard on the 7th July 2006. The court will return to the judgment in DPP v Kelly in due course.

The Background Facts

4 The events which triggered the charges in the trial took place in October 2002 at Corke Abbey, Bray, Co. Wicklow. To understand the case made by the prosecution at the trial, and the arguments for the Applicants as well as the response of the Director of Public Prosecutions on these applications, a brief understanding of those events as accepted by the court is essential. Corke Abbey is located at the northern end of Bray. There is a housing estate there. An off-duty detective garda attached to the Special Detective Unit lived there and noticed suspicious activity on the night of the 10th October 2002. He contacted Shankill Garda Station about this. According to the evidence he saw three vehicles. They were, a blue Nissan Almera registration number 98-D- 13365, a yellow Ford Transit Van registration number 01-D-78522 and a dark Nissan Micra registration number 95-D- 34286 (originally wrongly noted by him as being 95-D- 34285). In the period from shortly after 11.00 p.m. up until midnight he watched the movements of the cars, and noticed the occupants of the three cars acting in what appeared to be a coordinated manner. At one stage five men got out of the Nissan Micra, three of them got into the back of the Yellow Transit Van, where there was already a driver and a man in the passenger seat. The other two got back into the Nissan Micra and it was driven off. A taxi arrived and its sole passenger got out and joined the others. These six men were at one stage gathered together on the path at the side of the Transit van. An unmarked garda vehicle manned by two gardaí, Garda Twomey and Garda Mannion from Bray Garda Station arrived in response to the call made by the off-duty detective garda, and they approached the van. At that stage, one of the six men walked away from the group, and continued walking along Corke Abbey Avenue, through the estate. He was not identified, either then or later. The garda in evidence stated that he had to concentrate on the events going on at the van, four of the remaining five men having got into the back of the transit van and one into the driver's seat. The Nissan Almera remained on the estate parked in close proximity to the transit van.

5 One garda spoke to the driver of the transit van who gave a false name While speaking with him the gardaí noted a black balaclava and the handset of a portable radio on the floor of the van. The other garda opened the door to the rear compartment of the van. There he discovered the other four men, sitting on the floor, as well as a number of items, including: a lump/sledge hammer; two pickaxe handles; a torch; eight plastic bags of cable ties; black balaclavas with single or double openings on the face; two identical navy blue ties, resembling those worn by members of An Garda Siochana; a sky blue shirt marked "Security"; a yellow jacket with "Garda" inscribed on the left breast; black woollen gloves and plastic industrial gloves; three walkie talkie type radios; rolls of masking tape; and election posters in respect of a man called O'Snodaigh. Two of the men in the back of the van were dressed in clothing which gave the appearance of, and made them look like, members of An Garda Síochána, including yellow fluorescent jackets on which were printed or marked "GARDA". The gardaí subsequently examined the Nissan Almera car. In it were found the following: the genuine registration plates for the car; false registration plates corresponding with the tax and insurance discs on the car; a stun gun; a beacon like a garda blue flashing light; a canister of CS gas; and black binding tape. The five men who remained in Corke Abbey out of the original eight, and who were in the Ford Transit Van, were arrested and charged with being members of an illegal organisation. They were found guilty, following a judgment which post-dates the date of judgment in the present case. Those are the October 2002 Corke Abbey events to which further reference will be made in this judgment.

6 As to the present case, according to the evidence, the yellow Ford Transit Van was subsequently traced back to its owner, a Mr. Murphy, who gave evidence at the trial that he had lent the van for use by, inter alia, members of Sinn Fein for electioneering purposes. The Nissan Almera car was traced back to a Mr. Michael Byrne, of Crumlin who, on the 11 December 2002, reported the car to the gardaí as having been stolen. The car had false licence plates on the 10th October 2002 at Corke Abbey, and corresponding tax and insurance discs. The owner of an identical Nissan Almera car had previously, on the 6th October 2002, reported that his car had been broken into and the tax disc as well as the insurance disc, but nothing else, stolen. The registration plate on the car corresponded to the stolen tax and insurance discs. The Nissan Micra car, which had left Corke Abbey after leaving off three of the five men who were in it, was traced back to a Ms. Kerry Dwyer, the partner of Kenneth Donohue.

7 On a subsequent search of the home of Kenneth Donohue on the 24th October 2002 a piece of paper with a mobile phone number and a drawing of what appeared to be a car key were found The phone number was that of the above Michael Byrne, the owner of the Nissan Almera. Also found was the telephone number of a "Whacker" Brennan, whom the court was satisfied was Patrick Brennan, the man in the driver's seat of the Ford Transit van during the Corke Abbey events, later charged and found guilty of membership of an illegal organisation.

8 It will be recalled that in the Nissan Almera was found, inter alia, black binding tape. This black binding tape was examined and found to contain what was accepted by the defence as being a print which matched the right thumb print of Niall Binead. During a subsequent search of his home on the 20th December 2002, a number of documents were seized from a small briefcase. Some of these were on standard size paper, others on "post it" notes and some on what seemed to be cigarette paper. All contained notes. The notes on the smallest bundle of documents referred to the actions and movements of a number of elected politicians, members of Dail Eireann from different political parties. The other, more numerous bundles, had notes concerning the actions or movements and/or associations of people engaged in one or other form of anti-social behaviour, some minor and some of a very serious criminal nature.

The Trial

9 At the trial, the prosecution relied on several separate matters, called "strands" in the judgment of the trial court, in support of its case against the Applicants. These were, firstly, the belief evidence of a member of the Garda Siochana above a certain rank, in this case the belief evidence of Chief Superintendent Philip Kelly. In evidence he stated his belief that the Applicants were, prior to the events at Corke Abbey detailed above, and independently of those events or of any matters discovered following their arrests, members of an illegal organisation. Secondly, evidence associating each of the Applicants with each other and with the activities at Corke Abbey on the 10th October 2002, which the prosecution contended were activities of a type normally or frequently associated with the IRA and which it submitted supported or corroborated the above opinion evidence. Thirdly, evidence that, following the searches referred to above, documentation was found...