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Judgment
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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 v
Robert Nolan Appellant Judgment of the Court delivered on the 27th day of July, 2015 by Mr. Justice Edwards Introduction 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 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 heavily with Dermot Gannon and “a fellow by the name of Noel”, amongst others. They were in a pub called “Fox’s”, and another pub the name of which he could not recall. He went back “to some house” after closing and the following morning met up with Dermot Gannon again. When it was put to him that the Mondeo vehicle had been purchased by Dermot Gannon on the Monday, and that he had been present, he stated, “I could have been. I don’t remember. I want to say for the tape I had no part in purchasing that car”. When it was put to him that he returned to Limerick on the Wednesday morning, with Dermot Gannon as a back up, to commit a shooting with the gun, he denied it, stating “No, I knew nothing about that gun”. He further denied any knowledge of the key to a stolen silver Volkswagon Polo vehicle that had been found on the person of Dermot Gannon at the time of his arrest. When it was put to him that “there was a car to be collected and that was why there was two of you”, he responded “That’s not true”. The appellant further claimed he was in fact unable to drive, although he did have an expired provisional licence that was “out about a couple of years” 10. The provisions of s. 2 of the Offences Against the State (Amendment) Act 1998 (hereinafter the Act of 1998) were invoked by the interviewing Gardaí during the appellant’s final three interviews. The focus of these interviews was specifically upon his suspected membership of an unlawful organisation. In particular, and by way of examples, the following questions, inter alia, were asked, and were answered as hereinafter indicated:
Q. What was your business in Limerick yesterday? A. On the advice of my solicitor I have nothing to say. Q. Do you have an explanation for being in Limerick yesterday? A. On the advice of my solicitor I don’t have anything to say.
Q. You were arrested yesterday in the company of Dermot Gannon in the Limerick area for the unlawful possession of a firearm. We now intend to question you about the membership of the I.R.A., the Irish Republican Army, do you understand? A. Yes.
Q. How do you know Dermot Gannon? A. I’ve nothing to say on the advice of my solicitor.
Q. Do you know that Dermot Gannon is a convicted member of the I.R.A and served a prison sentence for membership? A. I have nothing to say on the advice of my solicitor. Q. I put it to you that you and Dermot Gannon were on an I.R.A operation yesterday am I right? A. That’s incorrect. Q. What were you doing with Dermot Gannon? A. I’ve nothing to say on the advice of my solicitor. Q. Prior to your arrest yesterday will you give me an account of your movements? A. On the advice of my solicitor, no comment.
Q. When did you get into this car? A. No comment on the advice of my solicitor. Q. Where did you get into this car? A. No comment on the advice of my solicitor Q. What I.R.A operation were you involved in in the Limerick area with Dermot Gannon? A. I wasn’t involved in an I.R.A operation. Q. Have you any innocent explanation for being in Limerick yesterday if not on an I.R.A operation? A. I have nothing to say on the advice of my solicitor. Q. When did you arrive in Limerick? A. Nothing to say on that matter on the advice of my solicitor. Q. When were you last at your home in Ballyfermot? A. I’ve nothing to say on that on the advice of my solicitor. Q. These are material questions and your failure to answer them may have consequences for you at your trial, do you understand? A. Yes. Q. Again I ask you what were you doing in Limerick yesterday if not on an I.R.A operation? A. No comment on the advice of my solicitor.
(Interview 8) Q. Were you present when the car was purchased? A. I don’t know anything about the purchase of that car. Q. Did you accompany Dermot Gannon when that car was purchased? A. On the advice of my solicitor no comment. Q. Do you know Dermot Gannon? He is the chap that was arrested with you? A. On the advice of my solicitor no comment. Q. I put it to you that you knew Dermot Gannon in your capacity as a member of the I.R.A? A. I’m not a member of the I.R.A. Q. How then do you know Dermot Gannon? A. On the advice of my solicitor no comment.
Q. How then do you explain your association with Dermot Gannon a person convicted in the Special Criminal Court of I.R.A membership? A. On the advice of my solicitor no comment.
Q. Do you recall a gun being found in the car you were travelling in on Wednesday? A. On the advice of my solicitor no comment. Q. This gun was found under your seat. Do you accept that? A. No comment on the advice of my solicitor.
Q. What were you doing in the Beechgrove Avenue area of Limerick on Wednesday in the company of Dermot Gannon in motor car 01 D 68847 a green Ford Mondeo if not on an I.R.A operation? A. On the advice of my solicitor no comment. Q. These are material questions and your failure or refusal to answer them may have consequences for you at your trial, do you understand? A. Yes. Q. Why are you refusing to answer material questions? A. On the advice of my solicitor.
(Interview 9) Q. Did you use your phone ever to contact Dermot Gannon? A. On the advice of my solicitor I have nothing to say. Q. Why were you away from home without your mobile? A. On the advice of my solicitor I have nothing to say. Q. I put it to you that you did not bring your phone because you were afraid that Gardaí could track you, when you were involved in I.R.A operations? A. On the advice of my solicitor I have nothing to say. Q. When were you last in Portlaoise Prison? A. I have nothing to say. Q. Did you ever go and visit prisons in Portlaoise Prison? A. No comment. Q. Can you give me an account of your movements from Sunday to Wednesday when you were arrested? A. On the advice of my solicitor I have nothing to say. 12. The prosecution also relied on the evidence of Detective Chief Superintendent Kevin Donohue, who expressed his belief that the appellant was a member of an unlawful organisation, namely the Irish Republican Army, otherwise Óglaigh na hÉireann, otherwise 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 on 11th of January 2012. 13. The prosecution submitted, inter alia, that support and corroboration for the belief expressed by the Detective Chief Superintendent was to be 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. Remarks of the presiding judges
The seventh interview commenced at or about 2211 hours on the 12th of January 2012. After preliminary questions and answers section 2 was invoked, read and explained and that explanation was repeated on a number of occasions. The accused indicated that he understood the explanation and the section. Initial questions concerned alleged membership of the IRA, and he answered the same, denying membership. Thereafter he was asked a number of questions, including the following: "Do you know Dermot Gannon?" "Do you know that Dermot Gannon is a convicted member of the IRA and served a prison sentence for membership?" "What were you doing with Dermot Gannon?" "Prior to your arrest yesterday, will you give me an account of your movements?" "When did you get into this car?" "Where did you get into this car?" "Prior to your arrest, when were you last with Dermot Gannon?" "Will you account for your activities yesterday, to include your presence in a green Ford Mondeo 01D68847 being driven by Dermot Gannon, a person convicted of IRA membership, and the finding of a firearm and of a key belonging to a stolen Polo car, registration 10G2397?" To all of the foregoing, the accused failed to give an answer, other than saying words to the effect that on the advice of his solicitor he was not making any comment. Dispersed throughout the interview were questions concerning IRA membership and alleged possession of the firearm in question, to which Mr Nolan did give answers denying IRA membership and knowledge of the firearm. Interview eight commenced the following day at 9.47 am. Again, this interview commenced with general questions, which were answered, after which the initial caution was withdrawn and section 2, aforesaid, was read and explained in some detail. Mr Nolan indicated that he understood the section and the explanation. He was asked a number of questions relating to the car in which he was stopped, its purchase, and alleged membership of the IRA, all of which he answered. Again, however, he was asked a number of questions relating to his association with the said Dermot Gannon and the gun in the car and refused to answer the same on the advice, he said, of his solicitor. The ninth and final interview commenced on the same day on the 13th of January 2012 at or about 11.48 am. Again, he was asked routine questions, which he replied to, and once again the original caution was withdrawn and section 2 was invoked. He indicated that he understood the same. When questioned under section 2 he denied membership of the IRA and repeated that denial a number of times. However, when asked why did he stay in Limerick, he refused to answer, stating that the refusal was on the advice of his solicitor.
19. The appellant appeals against his conviction on the following six grounds:-
(2) The Court erred in law in holding that, pursuant to s. 2 of the Act of 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 Act of 1998, 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 Act of 1998. (5) The Court held that the opinion evidence of the Superintendent required to be corroborated. 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. 20. It is submitted by the appellant that the entitlement to draw inferences from a failure to respond, under s. 2 of the 1998 Act, which applies only insofar “as appears proper”, was not available to the Court in the present case. It is argued that the appellant had given lengthy accounts of his whereabouts and had denied membership of the IRA in his initial interviews and that, as the Court had not rejected those accounts, it was not open to the Court to draw the inference that the appellant was a member of the IRA. 21. The appellant sought to distinguish the circumstances in the present case from those in People (Director of Public Prosecutions) v Donnelly [2012] IECCA 78 where the Court of Criminal Appeal considered it appropriate to draw inferences from the silence of the accused persons who had said little in the interview save for bare denials of membership. The appellant referred this Court to the judgment in that case where it was said, at para 41, that:-
23. The appellant further argues that there was insufficient evidence in the interviews from which it could have been inferred that he was a member of the IRA. 24. It was submitted that the Court could have inferred from the appellant’s silence that he wished to disguise non-subversive criminality, an inference which is not probative of IRA membership. 25. Alternatively, it was submitted that the Court, having held that it was entitled to draw an inference that the appellant was a member of the IRA pursuant to s. 2, did not consider it appropriate to do so. 26. In relation to the firearm which the Gardaí discovered in the vehicle in which the appellant was travelling, the appellant submitted that the evidence presented during the trial was not sufficient to justify any connection being made by the Court between the appellant and the firearm. In particular, the appellant argued that his failure, in the ninth interview, to account for being a passenger in the vehicle did not leave it open to the Court to draw any inference relating to himself and the firearm. 27. In addition, it was submitted by the appellant that in the absence of evidence of paramilitary paraphernalia or republican sympathies, the Court was not justified in drawing the inference that the appellant was a member of the IRA. 28. The appellant argues that there was an “insufficient link” between what he describes as his failure to answer questions in relation to his co-accused and his alleged IRA membership, and that this connection amounted to mere speculation rather than a legitimate inference. 29. The appellant submits that the evidence in this case was scant and was insufficient to overcome the hurdle of admissibility. In particular, the appellant argues that the evidence of the Chief Superintendent should not have been admitted in circumstances where the Chief Superintendent claimed privilege to cut off virtually every line of cross-examination or probing with respect to the basis for his expressed belief, a factor which, it was contended, made the appellant’s trial unfair as he was prevented from challenging this evidence. Submissions of the respondent 31. The respondent submits that it is clear from the evidence adduced, and in particular the records of interviews 7, 8 and 9 with the appellant, that the appellant was fully aware that the questions being put to him were material and that adverse inferences could be drawn from his failure to respond. Similarly, the respondent submits that the appellant’s responses during those interviews indicate that he made a deliberate choice, based on the advice of his solicitor, not to answer questions on particular issues which were relevant to the investigation. The respondent contends that, in these circumstances, the Special Criminal Court was correct to find that it both could, and should, draw adverse inferences from the appellant’s failure to respond to material questions during the interviews. 32. The respondent relies on People (Director of Public Prosecutions) v Binead [2007] 1 IR 374 where the Court of Criminal Appeal rejected the appellant’s contention that adverse inferences were invalidly drawn by the Court in respect of similar types of questions. The respondent also relies on People (Director of Public Prosecutions) v Donnelly and others [2012] IECCA 78 (unreported, Court of Criminal Appeal, 30th July 2012), a case in which the Court of Criminal Appeal had upheld the drawing of adverse inferences where there had been a failure to answer material questions of a type similar to those asked in the present case. 33. The respondent has submitted that the appellant has incorrectly interpreted the effect of s. 2 of the Act of 1998 as only permitting a primary inference to be drawn that the appellant was a member of the IRA. According to the respondent, the primary inference capable of being drawn in this case was that the appellant had chosen not to answer material questions concerning his suspected membership of an unlawful organisation because he did not have responses that would stand up to scrutiny. The respondent cites several English and E.Ct.H.R cases, in that regard, which have established the effect of a failure to respond to questions, namely that; “silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination”, (R v Cowan [1996] QB 373; R v Condron [1997] 1 WLR 827; Condron v UK (2001) EHRR 1; and Beckles v UK (2003) 36 EHRR 162). However, counsel for the respondent further submitted that the availability of that primary inference would in turn have justified the Special Criminal Court in drawing, in the circumstances of the appellant’s case, the further and secondary inference that he was a member of the IRA. 34. Furthermore, the respondent contested the appellant’s assertion that the evidence of Detective Chief Superintendent O’Donohue was inadmissible, asserting that the Chief Superintendent’s evidence was both given, and was cross-examined upon, appropriately. According to the respondent, the only matter to be determined by the trial court in relation to the Chief Superintendent’s belief was the weight to be attached to such evidence and, in that regard, the respondent argues that the trial court correctly weighed the evidence and ascertained that it required to be supported or corroborated by other evidence. Counsel for the respondent cites the Court of Criminal Appeal’s judgment in People (D.P.P.) v Donnelly and others, para. 27, to support his client’s view that s. 2:-
Analysis Grounds (1) to (4) 38. Section 2 of the Act of 1998, as amended by s. 31 of the Criminal Justice Act 2007, and by s.10 of the Criminal Justice Act 2011, is in the following terms:
(2) Subsection (1) shall not have effect unless—
(b) the accused was informed before such failure occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, the accused was afforded an opportunity to so consult before such failure occurred.
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could be properly drawn apart from this section. (3B) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded. (3C) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial. (4) In this section—
(b) references to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the accused shall be construed accordingly. 40. In every case where s. 2 of the Act of 1998 has been invoked it is a question of fact for determination by the court of trial as to whether, taking into account the entirety of any questioning or interrogation of the accused, there has been a failure to answer material questions as to the accused’s movements, actions, activities or associations during any specified period. 41. The decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Devlin [2012] IECCA 70 (Unreported, Court of Criminal Appeal, 6th July 2012) upon which the appellant relies is clearly distinguishable in circumstances where it was not concerned with the same statutory provision as the one at issue in this case. The Devlin case was concerned with s.18 of the Criminal Justice Act 1984 as inserted by the Criminal Justice Act 2007, which permits adverse inferences to be drawn in certain circumstances from an accused’s failure “to give an account, being an account which in the circumstances at the time clearly called for an explanation from him” in respect of any object, substance or mark, or any mark on any such object, that was on his person, in his clothing or footwear, otherwise in his possession, or in any place in which he was during any specified period. While there are some superficial similarities between this provision and s. 2 of the Act of 1998 they are not identical in wording, form or substance. In particular, the Court of Criminal Appeal held that section 18 of the Criminal Justice Act 1984 had to be construed, on its particular wording, as being inapplicable “where an account of any kind has been given.” The wording of s. 2 of the Act of 1998 is markedly different and does not require to be so construed. On the contrary, once s. 2 of the Act of 1998 is validly invoked, it is a matter for the tribunal of fact to assess whether there has in fact been a failure or refusal to answer a material question or questions, even where some account is then given or has previously been given. A court would be entitled to so hold if it considered that the account given was false and untrue, or if true only partial, or insufficiently specific, or incredible. 42. In the present case, the Special Criminal Court specifically considered the answers given by the appellant in his earlier interviews in considering whether he had failed or refused to answer material questions put to him after s. 2 of the Act of 1998 was invoked for the purposes of interviews seven, eight and nine. It concluded “[t]he Court found many of these answers to be, as a matter beyond reasonable doubt, incredible. For example, his explanation that he had travelled to Limerick in circumstances "for a spin". The Court cannot, of course, draw any inference from answers given, or any failure to answer, other than when section 2 was invoked, and we do not do so. However, the fact that such questions were not answered when cautioned under section 2 is, in our view, significant. The questions were, in the circumstances of the case, clearly material questions, and the accused failed to answer the same.” This Court considers that these were findings that were legitimately open to the court of trial to make on the evidence before it, and as such they are unassailable. 43. The Special Criminal Court having concluded that the appellant had failed to answer material questions, it was then required to consider what inferences were capable of being drawn from the failure identified, and whether such inferences ought properly to be drawn in the circumstances of the case. 44. The appellant denied membership of the IRA throughout his questioning and interrogation. He also denied having any knowledge of the firearm or the key to a stolen car which was found in the possession of Mr Dermot Gannon, the co-accused. Besides these denials, the appellant’s responses to the overwhelming majority, if not all, of the material questions that were posed to him in the interviews in which s. 2 of the Act of 1998 had been invoked were to the effect that the appellant had no comment to make on the advice of his solicitor. 45. As noted in the judgment of the Special Criminal Court, the appellant had received adequate independent legal assistance, having met with two different solicitors on a number of occasions between his interviews. It is clear from the record of the final three interviews that the provisions of s. 2 of the Act of 1998 were read to the appellant. They were explained to him in detail and in plain language, and on several occasions, during these final three interviews and the appellant affirmed his understanding of the section and the consequences that might flow from a failure or refusal to answer a material question. In particular it was made clear to the appellant that the application of s. 2 of the Act of 1998 was limited to proceedings for an offence of membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act 1939, and that, where s.2 of the Act of 1998 had been invoked, any answers given by him to questions regarding his suspected membership of an unlawful organisation could not be used in a prosecution brought against him for any other offences. 46. In the circumstances the court of trial was entitled to conclude, as it appears to have done, that the failure by the appellant to answer material questions was deliberate and conscious, and that it was not explicable on any neutral or benign basis. On the contrary, it was ostensibly a fully informed and independent decision based upon the conscious exercise of a choice. The Special Criminal Court was, in this Court’s view, entirely justified in characterising it as “wilful, deliberate and calculated”. Moreover, it was a choice exercised in the specific context of a focussed interrogation concerning his suspected membership of the IRA, and it is a matter of some significance that in that context he was unwilling to re-iterate answers previously given when questioned in a more general context, or to elaborate or amplify what he had said previously. It was therefore open to the Court to infer that that the appellant had chosen not to answer material questions concerning his suspected membership of an unlawful organisation because he did not have responses that would stand up to scrutiny, and that he was in fact a member of the IRA. The Special Criminal Court expressed itself as being satisfied that it was “entitled to draw an inference that the accused was a member of the IRA from his failure to answer these questions”, and in then proceeding to draw that inference was clearly further satisfied that it was proper so to do. This Court is satisfied that in the circumstances of this case there is no tenable basis on which it can be reasonably contended that it would have been improper for the Special Criminal Court to have drawn the inference that it did. 47. The mere fact that the appellant had consistently denied membership of an unlawful organisation, which denials were taken into account by the Special Criminal Court, would not in and of itself have rendered the inference of membership of the IRA improper, particularly in circumstances where the appellant on a fully informed basis had consciously and deliberately refused to give a full account of his movements, actions, activities and associations during the period under scrutiny. The wilful, deliberate and calculated responses of the appellant in the context of his interrogation during interviews seven, eight and nine which he knew to be specifically focussed on his suspected membership of the IRA not only entitled the Special Criminal Court to draw the inference that he was in fact a member of the IRA but rendered it entirely proper that it should do so. 48. The suggestion advanced by counsel for the appellant that his attitude was perhaps explicable by a wish not to incriminate himself in other respects does not stand up to critical analysis in circumstances where he was expressly told that any answers given by him to questions regarding his suspected membership of an unlawful organisation could not be used in a prosecution brought against him for any other offences. Moreover, the suggestion that he might not have wished to inform on his co-accused is not tenable in circumstances where he had already furnished certain details concerning his knowledge of, and association with, Dermot Gannon in his earlier interviews but refused to reiterate or confirm those details in the interviews in which s. 2 of the Act of 1998 was deployed. 49. Approaching the evidence in this case in the same manner adopted by this Court in its recent judgment in The People (Director of Public Prosecutions) v Derek Palmer, [2015] IECA (unreported, Court of Appeal, 20th July 2015) the Court is of the view that the Special Criminal Court considered the questioning of the accused carefully and arrived at a conclusion which is unchallengeable on appeal. There is no basis for suggesting that the Special Criminal Court was mistaken in its assessment, or that the process was flawed, and this Court finds no basis on which it would be entitled to interfere with the considered judgment of the Special Criminal Court on this matter. The Court therefore rejects grounds of appeal (1) - (4) inclusive. Grounds (5) and (6)
52. The Chief Superintendent had asserted privilege on the following basis:
53. The appellant relies on the following passage from Costello J’s judgment in O’Leary v Attorney General [1993] 1 I.R. 102, where he described the effect of the relevant section in these terms:
54. In response to the appellant’s argument that the opinion evidence of Chief Superintendent Kevin Donohue was inadmissible, the D.P.P. relies on People (Director of Public Prosecutions.) v Donnelly and others [2012] IECCA 78 (unreported, Court of Criminal Appeal, 30th July 2012). Evidence of the belief of a Chief Superintendent that the appellants in Donnelly were members of an unlawful organisation was admitted as evidence. The trial court had held that the inferences which were drawn from the appellant’s refusal to answer questions, pursuant to s. 2, corroborated the evidence of the Chief Superintendent. On appeal the appellants challenged, inter alia, the admissibility of the Chief Superintendent’s opinion evidence and the claim of privilege that the Chief Superintendent relied upon in respect of the identity of his informants and the sources of his information. As in the present case, the appellants argued that their trial was unfair as they had been afforded no opportunity to test the evidence of the Chief Superintendent. 55. In reviewing the judgment of the Special Criminal Court, the Court of Criminal Appeal noted at para. 5 that:-
58. In so holding, O’Donnell J giving the judgment of the Court, remarked (at para 31):
60. This Court emphasised, in relation to s. 3, that:-
Section 3(2) [of the 1972 Act] is clear and unequivocal. It was considered and analysed in detail by the Court of Criminal Appeal in D.P.P v Donnelly & Ors. The statement of the Chief Superintendent that he believes that the accused was, at a material time, a member of an unlawful organisation is evidence that the person was then such a member. If any doubt remained as to the applicability of D.P.P v Donnelly & Ors., it has been removed by the recent Supreme Court decision in D.P.P. v Connelly [2015] IESC 40. There is no provision in the sub-section for the consideration of the material on which the officer’s belief is based by the Director of Public Prosecutions or another agency. It is not the belief of the D.P.P. Neither is it the Chief Superintendent’s belief as approved or authorised or evaluated by the Director… [The] ground of appeal and the submissions supporting it, (contesting the fairness of the claim of privilege), suffer from the misunderstanding that the evidence before the Court is of the officer passing on hearsay information. The distinction may at first sight appear to be a fine one between a belief based on confidential information from a variety of sources, on one hand, and reporting information provided by others, on the other hand. However, as Donnelly’s case makes clear, the distinction is an important one for a proper understanding of the section and how it operates. The Court in that case also highlighted the evaluative role of the officer giving the evidence and the fact that it is a person of very senior high rank in the Garda Síochána who has particular and relevant experience”. 62. Finally, the Court must consider the appellant’s claim that there was no evidence to corroborate the opinion evidence of the Chief Superintendent, (ground 5). 63. The Special Criminal Court ruled in accordance with its general practice that it would not proceed on the evidence of the Chief Superintendent alone in the absence of some form of independent corroboration. In so ruling the Special Criminal Court was clearly not referring to corroboration in the special legal sense discussed in R v Baskerville [1916] 2 K.B. 658 but rather in the more commonly understood sense of evidence that in some way tends to support the charge. The Court found such corroboration in inferences arising from the appellant’s failure to answer material questions, in circumstances where s. 2 of the Act of 1998 had been invoked. 64. The Special Criminal Court was entitled to do so in the following circumstances. In Donnelly, the Court of Criminal Appeal addressed the relationship between s. 2 of the Act of 1998 and s. 3(2) of the Offences Against the State (Amendment) Act 1972. It had been argued, inter alia, on behalf of the appellants that inferences arising from a failure to answer material questions could not corroborate the belief evidence of a Chief Superintendent. It noted that s. 2 of the Act of 1998 specifically provides that the failure to answer questions may, on the basis of the inferences to be drawn, be treated as corroboration. Accordingly, it affirmed the decision of the court of trial in that case, i.e., the Special Criminal Court, to the effect that inferences drawn pursuant to s. 2 were capable of amounting to corroboration for the purposes of s. 3(2) of the 1972 Act. In giving judgment for the court in Donnelly, O’Donnell J stated (at para. 38) :-
66. There is no basis for materially distinguishing the circumstances of the present case from the cases of Donnelly and Palmer respectively. Equally there is 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. 67. The Court therefore rejects grounds of appeal (5) and (6), respectively. Conclusion 69. In the circumstances the Court dismisses the appeal. |