THE COURT OF APPEAL
CCA 110/2014
Birmingham J.
Sheehan J.
Edwards J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPELLANT
Judgment of the Court delivered on the 30th day of May 2016 by
Mr. Justice Birmingham
1. In this case, the appellant was convicted on the 18th February, 2014, of counts of harassment, making unwarranted demands for money with menaces and money laundering and having then been sentenced on the 7th April, 2015, to nine years imprisonment with three suspended now appeals against his conviction and sentence. This judgment deals with the conviction aspect only.
2. The background to this prosecution was that the injured party is one Geraldine Kelly who resides at Ashford, Co. Wicklow. Ms. Kelly is the mother of three children. One of those children, Stephen Mora Kelly, was said to have built up a drugs debt to the appellant. Payments in connection with these debts were, on the prosecution case, made to the accused in 2008 and 2009 from funds obtained from various members of the Kelly family and the prosecution contended that in 2009, Geraldine Kelly, Stephen Mora Kelly’s mother came under pressure from the appellant to pay further monies at a time when Stephen Mora Kelly was attending a rehabilitation centre.
3. There was a seven count indictment at trial.
Count 1: related to alleged harassment by the appellant of Geraldine Kelly between the 7th April, 2009 and the 11th June 2009, in the form of telephone calls.
Count 2: was a count which involved the making of an unwarranted demand for money with menaces and related to a phone call made on the 7th April, 2009.
Count 3: was another count of making unwarranted demands for money with menaces related to another phone call made on the 8th April, 2009. The call in question here took place after there had been an earlier phone call to Mrs. Kelly from another person. The evidence at trial was that members of An Garda Síochána were present for these calls on the 8th April, 2009.
Count 4: deals with another call of a menacing nature made on the 8th April, 2009. Mrs. Kelly’s’ evidence was that in the course of this phone call the appellant told her that he was either going to shoot her or put a pipe bomb into the house.
Count 5: related to a phone call on the 14th May, 2009. Mrs. Kelly also gave evidence in relation to a phone call of June 2009 in which she says that Mr. Smith told her that the next time it would not be a hoax, that the bomb would be real and that she would be dead. The significance of this reference to the fact that next time would not be a hoax will become apparent.
Counts 6 and 7: were counts of money laundering and alleged that the appellant had engaged in that activity by acquiring money belonging to Mrs. Kelly knowing or being reckless as to whether it represented the proceeds of criminal conduct.
4. No less than 23 grounds of appeal were formulated but helpfully, counsel on behalf of the appellant has grouped these into seven grounds, these are:-
(a) The challenge to the admissibility of the interviews with the appellant on the basis of the unlawfulness of the arrest and consequential detention.
(b) The challenge to the admission of the telephone records.
(c) The admission into evidence of material from a Bebo website in circumstances where such evidence is contended to be entirely unreliable.
(d) That the trial judge erred in permitting the leading of evidence of threats to the victim, in breach of the hearsay rule and further erred by permitting the leading of evidence of criminal misconduct not referable to the accused or in respect of criminal misconduct that was imputed to the accused but was not subject to a charge in the indictment.
(e) Rulings of the trial judge in respect of evidence which the prosecution was permitted to lead such as evidence pursuant to s. 16 of the Criminal Justice Act 2006 and the manner in which re-examination of witnesses took place.
(f) The failure by the trial judge to direct the jury as to how to treat the evidence of witnesses who had been shown to tell lies or who admitted telling lies.
The challenge to the admissibility of the interviews with the appellant on the basis that it is contended that the arrest was unlawful.
5. The circumstances in which this ground is advanced is that gardaí who were in possession of a search warrant issued by a Garda Superintendent, Superintendent Ward, on the 15th May, 2009, went on the following morning to the appellant’s house, set about forcibly entering it and then approximately an hour later arrested the appellant who was subsequently detained. He was interviewed later that day and the prosecution sought to adduce certain replies given by him as part of its case.
6. The admissibility of the interviews was challenged by the defence and was the subject of a voir dire. The prosecution did not argue for the lawfulness of the search warrant having regard to the decision in DPP v Damache [2012] 2 IR 266, but rather they sought to introduce evidence that the prosecution in going to the appellant’s house had a dual purpose in doing so, going there for the purpose of conducting a search and for the purpose of making an arrest. Evidence in this regard was given by a retired Garda Conor McEvoy. Mr. McEvoy’s credibility was vigorously challenged. It was contended that his evidence was inconsistent with the fact that the appellant was allowed remain in the house for approximately one hour before being arrested. The judge indicated that he was in no doubt whatever but that there was a dual purpose on the part of the gardaí in going to the house namely an intention to search and arrest. However, the appellant says that the judge did not focus on the correct question and the issue was not to identify what was the intention of the gardaí but rather to identify what powers were invoked to gain entry. The appellant says that if, as was now being suggested, a dual power of entry was being relied upon namely s. 6(2) of the Criminal Law Act 1997, as well as the s. 29 of the Offences Against the State Act 1937 warrant both ought to have been invoked. In the view of the Court, there was abundant evidence to justify what were essentially findings of fact made by the trial judge. The judge commented that on the basis of the information available to the gardaí that it would have been a grave dereliction of duty if they had not arrested Mr. Smith. His observation in that regard are entirely understandable. In this case, the gardaí went to the Smith dwelling with the intention of arresting him. Some members of the garda party had been tasked with dealing with the arrest and others with the search. There was a statutory power available to them. In these circumstances this ground of appeal must fail.
7. Even if the situation were otherwise the Supreme Court decision in DPP v J.C. [2015] IESC 31 would be of relevance. This was a case where the gardaí had or certainly believed that they had two statutory powers available to them. The power that was invoked, the Offences Against the State Act 1939, was one that the gardaí believed had been available to them by statute for approximately 70 years. In 2009 that statute enjoyed a presumption of constitutionality. There was no question of the gardaí setting out to infringe the appellant’s legal or constitutional rights. On the contrary, the gardaí sought at all times to act in accordance with the then statute law of the State. It is true that the statute has since been declared to be unconstitutional but that does not call into question the bona fides of the gardaí who were on duty on the 16th May, 2009. The Court is very cognisant of the fact that J.C. does not make evidence obtained in circumstances involving inadvertence or non culpable error admissible per se, on the contrary the onus is on the prosecution to establish why the evidence should be admitted. However, in a situation where the power invoked was one that appeared to represent the established law of the State and where there was in any event an alternative power available to the gardaí, the argument for admitting the evidence would have been overwhelming.
Telephone records
8. In a case where the contention by the prosecution was that threats and demands were made by telephone, it is not surprising that the issue of telephone records featured prominently at trial and again it is not surprising that there was a challenge to the admissibility of the records.
9. Evidence in relation to the phone records was given by Ms. Maureen King of Meteor. It is contended that the judge erred in concluding Ms. King’s evidence was admissible pursuant to s. 6 of the Criminal Evidence Act 1992, in circumstances where she gave clear evidence that information was stored in a pure or undigested form on the Meteor system waiting to be interrogated by a request from the operator. The defence say that the data was kept by the mobile phone operator for the purpose of billing but also in accordance with and for the purpose of complying with obligations under the Criminal Justice (Terrorist Offences) Act 2005. It is said in a situation such as this where the interrogation of the data took place on foot of a request by investigating gardaí that a conclusion that the report was prepared for the purposes of a criminal investigation is inescapable. In the Court’s view, the submissions made failed to engage with the evidence that was actually before the trial court. The evidence of Ms. King was that the information contained in the phone records was “compiled in the ordinary course of business for the purposes of our core business, which is mobile telephony, so essentially for billing our customers”.
10. It does not require any great expertise in respect of the telecommunications sector to appreciate that mobile companies exist to make profits and that they can do that only by billing customers and those customers can be billed only if records are maintained. Contrary to what was submitted on behalf of the defence, the conclusion is inescapable that the information was not compiled for the purpose of a criminal investigation or criminal proceedings. That situation is not altered by the fact that there is a statutory obligation on mobile phone companies to retain records. However, even if there was no legislation such as the Criminal Justice (Terrorist Offences) Act 2005, requiring the retention of records Meteor and other telecommunications companies would still have had to create records for their own purposes and those records would be admissible in evidence.
11. In the circumstances, the rulings of the trial judge in this regard are absolutely unimpeachable.
The Bebo records
12. The relevance of these records arise in a situation where Mr. Smith confirmed that he had communicated through his daughter Jordan with Stephen Mora Kelly by Bebo. In those circumstances that the gardaí would be keenly interested in the records of Bebo communications was entirely to be expected. The difficulty for the gardaí was that Stephen Mora Kelly entered the Tiglin Rehabilitation Centre on the 18th March, 2009, and remained there for approximately nineteen months. Accordingly he was not in a position to reproduce the Bebo records. In those circumstances Jonathan Mora Kelly accessed his brother’s Bebo page and reproduced its contents. The evidence was that he undertook this task in the presence of gardaí. Again a voir dire was held on this issue and again Mr. Jonathan Mora Kelly was subject to vigorous challenge. Essentially, it was contended that he had edited or altered the document and that the records produced were inherently unreliable. It was submitted that it was “quite clear that the document has been interfered with in some ways and that there are some bits in bold text, whereas the rest isn’t but the pages themselves do not appear to be in any sort of order, that at times there seems to be jumps in the narrative”.
13. The defence submit that the unreliability of the documentation is evident from the fact that Jonathan Mora Kelly initially stated that he had produced the documents in one manner, by way of screen shots and then in cross examination indicated that he had engaged in copying and pasting and had done so in the presence of gardaí.
14. The defence go on to say that the documentation is hearsay and as such is inadmissible. However, that ignores the fact that this was a communication which emanated from the appellant, which formed part of the offence and which indeed was the subject of admissions by the appellant.
15. The judge ruled on this issue in these terms:-
“In relation to the Bebo, I am happy that the Bebo records are not unreliable. Mr. Jonathan Mora Kelly says that he obtained the password of his brother, Stephen to get into it. While interference was suggested, there has been no evidence whatsoever of interference. Mr. Sweetman [counsel for the then accused] makes a point that this was unsupervised but it would certainly seem from the evidence of the garda who was there that even if he did stand over Mr. Mora Kelly he would not actually know what he was doing. And Mr. Sweetman exploring with him whether he knew about Facebook, Bebo etc. and he didn’t, as many gardaí of such vintage including myself would be in a similar position. I find those documents probative and, as I say, there has been no evidence of any interference. But, as Mr. Murray [counsel for the prosecution] correctly points out, both Mr. Jonathan Mora Kelly and the other half of the Bebo account if I have that expression correctly Mr. Stephen Mora Kelly can be cross examined on this and accordingly I’ll admit the Bebo documents.”
16. There were many assertions made by the defence in relation to editing, altering and unreliability. However, while there were assertions a plenty, there was no evidence to this effect. The trial judge was fully entitled to rule on this matter as he did and this ground of appeal is rejected.
Criminal misconduct other than that charged
17. This ground of appeal is expressed in these terms;
“The learned trial judge erred in permitting the leading of evidence of threats to the alleged victim, in breach of the hearsay rule and further by permitting the leading of evidence of criminal misconduct not referable to the accused or in respect of criminal misconduct imputed to the accused not subject to a charge in the indictment.”
18. There are a number of aspects to this but to put the issues raised in context it is important to bear in mind that the basic prosecution case was that the accused had supplied drugs to Stephen Mora Kelly, arising from which debts were incurred which were not cleared. As a result, Stephen Mora Kelly came under pressure both in 2008 and 2009 to pay off a drugs debt to the accused, and that he did so through monies which were forthcoming from members of his family. His mother Geraldine, his two brothers Jonathan and Gerald as well as Stephen Mora Kelly himself all gave evidence in relation to that issue.
19. While the matters specifically charged related to acts of intimidation and demanding of money of Geraldine Kelly what she had to say could only make sense if seen against that background. Unless Mr. Smith was a drug dealer who was owed money he would have no reason whatever to threaten Mrs. Kelly or make demands of her. It was therefore inevitable that the jury were going to have to hear some evidence in relation to the criminal activities of Mr. Smith over and above those with which he was specifically charged. Just as in the case of a prisoner charged with an assault on a fellow prisoner in prison or an assault on a prison officer, it is inevitable that the jury must learn that the person before them was not a person of unblemished character so, in the present case where the allegation is of criminal activity on foot of attempts to secure payment of drugs debts that the jury must inevitably learn that the person before them was involved in the drugs trade. Leaving aside the question of subcontracting debt enforcement only drug dealers are concerned to collect drug debts.
20. The fact that there was this background to the case meant that the usual practice which is that a jury hears nothing about the accused’s previous character, unless it is a case where the defence is putting previous good character in issue was never going to apply in the ordinary way. Both sides realised that and both sides introduced material that went beyond the specific charges that appeared on the indictment because in different ways both sides felt that it was probative and supported the case that they were advancing. So, the prosecution adduced evidence of two incidents involving Stephen Mora Kelly, in one of these he was told to get into the appellant’s car which was then driven off at speed and in the course of the journey he was threatened which involved an object being put into his mouth. On another occasion gardaí came across a car parked in Ashford which was being used by the accused, with Stephen Mora Kelly in the back seat who appeared agitated and upset. The prosecution saw these incidents as relevant, because the pressure and threats directed at Mrs. Kelly followed on from and were a development of the threats and pressure directed against Stephen Mora Kelly. However there were other instances when material was introduced at the behest of the defence. So, at one stage, the prosecution had an interest in proving that a particular telephone number was linked to the accused. They set about proving that by calling a witness who gave evidence that he knew Noel Smith and had rung him on a number of occasions on the number in question and the phone had been answered by Mr. Smith. In cross examination the defence intentionally adduced evidence that the witness had worked as a member of the Wexford Divisional Drugs Unit, that he knew Mr. Smith to have an involvement in the drugs trade and that Mr. Smith had in the past provided confidential information from time to time. Again, when Mrs. Geraldine Kelly came to give evidence her direct evidence focused on telephone conversations commencing on the 7th April, 2009. However, and no doubt there were good tactical reasons for this, the defence cross examined her in relation to other matters which had not been led by the prosecution. She was cross examined about what she described as an intimidating and threatening experience that had occurred on the 4th March, 2009 and was also cross examined about an incident on the 25th March, 2009, when a man came to her house purportedly on behalf of the accused. In the view of the Court both sides were, as indeed was the trial judge, careful to avoid introducing material that was gratuitously prejudicial but both sides on occasions found it necessary or certainly helpful to introduce material which would not ordinarily be admissible. A particular issue arose in relation to the fact that a hoax bomb device was found under the vehicle of Mrs. Kelly on the 5th June, 2009. The prosecution did not attempt to prove that the device was placed by Mr. Smith. Their interest lay in the fact that in phone calls prior to the 5th June, there had been references to bombs. Mrs. Kelly was saying that in the course of a later phone call Mr. Smith was saying that the next time it would not be a hoax. In the view of the Court in a situation where bomb threats were being made, where in the course of one conversation there was a remark to the effect that the next time would be different and the next time the device would be real and not a hoax that the evidence in relation to the placing of the hoax bomb was clearly probative and was properly admitted in evidence by the trial judge. While giving evidence, Mrs. Kelly referred to the fact that Mr. Smith had placed the hoax bomb and this led to an application to discharge the jury. That application was very properly refused by the trial judge. In a situation where a hoax bomb was left outside her house at a time where there was an ongoing campaign of threats and intimidation, it would be very strange if she did not believe that Mr. Smith was linked to the placing of the device. However any belief that she might have in that regard was not critical and did not advance the case against Mr. Smith.
Judge’s ruling in respect of evidence which the prosecution was permitted to lead pursuant to s. 16 of the Criminal Justice Act 2006
21. The issue arises out of the evidence of Janice Seery who it must be said was not a significant witness at trial. It seems clear that the prosecution would have been minded to tender her but chose not to do so in a situation where they had been denied the right to re-examine the witness who gave evidence immediately before her, who had been tendered. In those circumstances the prosecution contended themselves to asking whether it was correct that the witness’s name was Janice Seery and whether she knew Ian O'Sullivan, to which she responded that she did. Ian O'Sullivan is her former boyfriend and is a friend of Stephen Mora Kelly. During the course of cross examination the defence established that she had been driving a car in which Stephen Mora Kelly was a passenger which was stopped by gardaí. There were drugs on her person and also drugs were found on the passenger side that she said she was unaware of. It was also established there were more drugs on the passenger side than were on her person and that it was fair to suggest that the drugs on the passenger side might have been the drugs of Stephen Mora Kelly. She said that Stephen Mora Kelly was dealing in drugs and that he used to get her to go up to Tallaght and “collect stuff up there and go and pay money up there”. She was asked whether she knew the name of the person in Tallaght who is the supplier and she stated that it was “Ron”. The witness was then re-examined by counsel for the prosecution. Counsel asked her whether she had ever met Ron and she responded “I had seen Ron from inside the car: I have never spoken to him, never met him”. Counsel asked “how would you described him” and she responded “he was kind of tall, not big built but built enough”. She said he was aged about 28 or 29 and that he had a shaved head. At that stage counsel requested that the jury would be asked to withdraw from court and he then drew the judge’s attention to a statement made by the witness to gardaí which had said “I heard Stephen Mora Kelly saying he had to pay a Ron from Tallaght money but I don’t know who he is. I never met Ron. I do not know who he is”. Counsel contended that the evidence given in response to cross examination was materially inconsistent and he said that he was making an application under s. 16. Defence counsel when asked what his attitude was by the judge said that he was not going to dispute the fact that there was inconsistency. Ms. Seery then returned to court and was questioned in the absence of the jury. When it was suggested to her that there was an inconsistency between telling the gardaí that she had never met Ron and being in a position to describe him in court she responded that she had never met him but that she had seen him that she had never been introduced to him and had never spoken to him. When it was put to her that her evidence in court was totally contrary to what she had to say on a previous occasion, she responded by saying to prosecution counsel “I don’t know who you are but I can tell you what you look like”. At that stage Ms. Seery was questioned further by defence counsel. She said that she considered Ron to have been a dangerous man and would have had concerns when speaking to the gardaí about giving details. She said that she did not know his surname for fact, but that she did ask around after all that had happened and she thought it was Draper and that she had heard he was facing murder charges. At that stage the prosecution counsel indicated that a further material inconsistency had been drawn to his attention. This in a situation where the statement had said “I don’t remember the exact date [of being stopped by the gardaí in the car] there were drugs found in the car. I got charged. I am not sure, did Stephen get charged with having a knife or something?” Defence counsel submitted that this was not a material inconsistency but the judge told defence counsel that he was against him saying that in his view there was a material inconsistency and a substantial one at that.
22. When the jury returned to court, prosecution counsel had further questions for the witness. While the witness was in the box the judge was asked for leave to admit the statement that had been made to the gardaí under s. 16 and the judge responded by saying “granted”.
23. Still further questions were then put by defence counsel and at that stage Ms. Seery said that Stephen was never charged in respect of the drugs found in the car and that she was the only one who was charged. She was able to say what Ron looked like because Stephen had asked her to give him a lift to Tallaght to pay Ron, that Stephen got out of the car paid the man and got back into the car and that she never met Ron, was never introduced to him, never spoke to him. In the view of the Court, the application invoking s. 16 of the Criminal Justice Act 2006 was misconceived and ought not to have been acceded to. In fairness to the trial judge there was no major objection to the invocation of the section as such and the disagreement between counsel was confined to the issue of whether the aspect of the statement that dealt with the fact that Stephen might have been charged with possession of a knife was inconsistent with her comment in court that the greater portion of the drugs in the car were on the passenger side and might have been Stephen’s. While this statement should not have been admitted and indeed the application should not have been made, the Court is quite satisfied that this was an entirely peripheral issue and has had no impact on the overall fairness of the trial nor does it in any way render the overall trial unsatisfactory.
Requisitions
24. At the requisitions stage, defence counsel commented as follows: “The last matter which I would mention is whether the court would consider giving a direction in respect of the evidence of witnesses who have admitted telling falsehoods to the gardaí and how their evidence may be weighed in those specific circumstances”. To this the judge responded:
“I did consider, in respect of my charge, as to whether or not I should direct or charge the jury as to how they should deal with the evidence of witnesses who admitted to telling untruths. However, in this particular trial there were quite a number of witnesses who admitted telling untruths at different stages or others and I have indicated in my charge that they can believe . . . ‘having listened carefully to the evidence you may find some of what you heard credible and some incredible. You may conclude that some witnesses are credible and some are not. You may believe all, none or some of the evidence that you have heard: this is a matter for you, you are the judges of the facts’ and quite frankly, I think that would have left the jury an impossible task because there were numerous references throughout the trial by various witnesses at various stages admitted that they had not told the truth or that they had told a lie or half lie or that wasn’t true on a particular occasion.”
25. In the view of the Court, the trial judge who presided over the trial who heard all the witnesses giving their evidence and all the witnesses cross examined was in the best position to identify what directions would assist the jury and what directions might make their task more difficult. From the response to requisitions it is clear that the judge specifically considered this issue and reached a view as to what was most likely to be of assistance. This Court is not in a position to second guess his conclusions.
Conclusion
26. This was a lengthy and somewhat unusual case and it must be said a difficult case. At one stage in the transcript the judge speaks of “dancing on eggshells”. It was a case that was handled with particular skill and indeed patience by the trial judge who was called on to give legal rulings on a great number of occasions. The Court is of the view that the trial overall was a satisfactory one and that the conviction is safe. The Court will therefore dismiss the appeal.
