Irish Court of Criminal Appeal

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Cite as: [2006] IECCA 103, [2007] 2 IR 169

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Judgment Title: D.P.P.-v- Eamonn Matthews

Neutral Citation: [2006] IECCA 103

Court of Criminal Appeal Record Number: 236/04

Date of Delivery: 14 July 2006

Court: Court of Criminal Appeal

Composition of Court: Macken J., Herbert J., Haugh J.

Judgment by: Macken J.

Status of Judgment: Approved


Judgments by	Result
Macken J.	Refuse application

Outcome: Refuse application

THE COURT OF CRIMINAL APPEAL

Macken J.
Herbert J.
Haugh J.

236/04

Between:

THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

-and-

EAMON MATTHEWS

Applicant

Judgment of the Court delivered by Macken J. on the 14th July 2006
The Applicant was convicted by the Special Criminal Court (O’Donovan, J., J. Matthews, and D.J. Malone) on the 7th December 2004 of the offence of membership of an unlawful organisation, namely, the Irish Republican Army, otherwise Oglaigh Na hEireann, otherwise the IRA, on the 13th June 2003, contrary to the provisions of the Offences Against the State Act 1939, as amended, and was found guilty, after a trial which lasted eleven days. The Applicant was sentenced to 3 years and nine months imprisonment in respect of the offence.
The accused lodged an application for leave to appeal against both conviction and sentence. This judgment concerns only his appeal against conviction. The application for leave to appeal against sentence shall, if necessary, be dealt with at a later date.

Factual Background
The matters which gave rise to the charges in the trial concern events which occurred in June 2003. In the course of the trial, there was a very considerable volume of evidence about the activities of the accused and others on the 12th and 13th June 2003, as noted during surveillance operations covering those dates mounted by specialist sections of the Garda Siochana in an area of County Louth. The surveillance covered, inter alia two farms, one at Thornfield (“the Thornfield farm”) Iniskeen, Co. Louth, and the other about eight miles away at Tallanstown (“the Tallanstown farm”), also in County Louth, as well as the homes of the Applicant and others, and vehicular traffic involved in the comings and goings to or from or between those farms and/or premises, as well as the public roadway, on the dates in question.
The trial court in the course of its judgment identified several facts about which it stated it was satisfied beyond reasonable doubt. Put briefly, these were the following:
a. On the 13th June 2003 in the course of searches, lawfully authorised, members of An Garda Siochana discovered the following:
(i) a bomb making operation in a farmyard at the Thornfield farm, (the property of a woman not suspected of having any involvement in the activity); and
(ii) a grinder and a quantity of fertiliser bags in a shed at the Tallanstown farm, the property of a Mr. Gerard Sweeney at Louth Hall, Co. Louth. In the chutes of that grinder was found a brown powder which, when analysed, was found to comprise a mixture of ammonium nitrate and sucrose, which is an explosive substance within the meaning of the Explosive Substances Act 1883, as amended.
b. Among the various items found in the shed on the Thornfield farm were:
(i) a stolen white Peugeot van in which there was a large canvas bag containing a pale brown powder which when analysed was found to be a mixture containing ammonium nitrate originating from crushed fertiliser and icing sugar, an explosive substance within the meaning of the Explosive Substances Act 1883, as amended, and
(ii) a powered cement mixer which contained a similar explosive substance to that contained in the canvas bag just referred to.
(iii) Full bags of icing sugar and empty bags of icing sugar.
c. Two men were found in the act of making explosives, a Seamus McKenna and a Gregory Trainor, both of whom subsequently pleaded guilty to the offence of possession of an explosive substance.
d. The cement mixer discovered at the Thornfield farm had been hired by the Applicant and Seamus McKenna, on the previous day, 12th June 2003, from a firm known as Dromad Hire, of Dublin Road, Dundalk. The Applicant signed the written contract for hire, and Seamus McKenna paid the hiring charges.
e. While the Applicant was a regular customer of Dromad Hire, having previously hired a variety of equipment from that firm, he had never previously been known to have hired a cement mixer from it.
f. Having hired the cement mixer, the Applicant, in the company of Seamus McKenna, drove to the home of another co-accused, Joseph Fee, at Newtownbalregan, Co. Louth where they delivered the mixer.
g. The jeep which the Applicant was driving when he hired the cement mixer and delivered it to the home of Joseph Fee, was also a stolen vehicle, (although in the course of interviews by members of an Garda Siochana the Applicant denied that he had stolen the jeep).
h. At approximately 7 pm on Thursday 12th June 2003, the same jeep, driven by the Applicant, accompanied by Seamus McKenna, was driven into a workshop in Iniskeen village, believed to be occupied by Joseph Fee (although the court expressed certain reservations about whether it was used by him on a regular basis).
i. At 7.55 pm on the12th June 2003 the jeep, again driven by the Applicant, accompanied by Seamus McKenna and an unknown person, drove into the farmyard of the Tallanstown farm. At 10 pm on that evening a similar jeep was seen reversing from the farmyard there. Twenty minutes later, the same jeep was seen driving on the Castleblaney Road, travelling in the direction of Dundalk, followed by a green Nissan Almera car, the property of a co-accused Peter Kelly.
j. Early in the morning of the 13th June 2003, Joseph Fee drove his Citroen van from the farmyard at the Tallanstown farm to the Thornfield farm followed on the road by Seamus McKenna, who was then driving the stolen white Peugeot van.
k. At 9.35 am on 13th June 2003 the Applicant was observed driving the jeep on the Newry Road, having pulled away from a white Citroen van in which were Joseph Fee and Seamus McKenna.
The trial court took the view the above activities discovered by members of An Garda Siochana at the farms on the 13th June 2003 were activities of a nature commonly associated with the IRA.
Having been arrested, on the 13th June 2003, the Applicant was brought initially to Balbriggan Garda station, Co. Dublin, and then to Drogheda Garda Station. He was questioned on that day, and the following day, in the course of interviews, during which the provisions of S. 2 and of S. 5 of the Offences against the State (Amendment) Act, 1998 (“the Act of 1998”) were referred to or invoked. The trial court found that the Applicant was informed by the interviewing members of An Garda that if he failed to answer material questions, inferences might be drawn from this, pursuant to the provisions of Section 2 of the said Act. He persistently and consistently denied, in the course of those interviews, that he was a member of the IRA.
The Case for the Prosecution
According to the transcript and the submissions of the Director of Public Prosecutions (“the Respondent”), the evidence against the Applicant consisted of the following, and the Applicant’s counsel accepts that this was so:
1 The Chief Superintendent's belief that the Applicant was a member of the IRA on the date in question, based primarily on confidential information in respect of which privilege was claimed.
2 The Applicant's presence at parades and republican/paramilitary commemorative events of which direct evidence was given to the Court by Garda witnesses who had conducted surveillance in that regard.
3 The Applicant's movements and associations on the 12th and 13th June 2003 (the hiring of the cement mixer, driving to Joseph Fee's house, driving to the Tallanstown farm, meeting with his co-accused and so forth), as more particularly referred to above; and below.
4 The inferences drawn from the Applicant's failure to reply to material questions in the course of interviews, together with the trial court’s findings in respect of an untruth told by him in one interview concerning his presence at the Tallanstown farm.
The Applicant does not seriously challenge the foregoing, or the sequence of the events or matters referred to above, concerning the 12th and 13th June 2003. Nor did the Applicant, in the course of his trial, challenge the evidence adduced as to his alleged associations in respect of the period prior to these dates, although he did, as stated above, in the course of the interviews, deny membership of an illegal organisation. Rather, the Applicant claims that the conclusions drawn by the trial court from the evidence were erroneous, unsafe, unreliable, and further – at least in so far as the events of the 12th and 13th June are concerned – that the evidence was capable of innocent explanation, which he was entitled to have found in his favour.
The Applicant also claims that his trial was unfair and his conviction unsafe because of infringements of his right to a fair trial pursuant to Article 38 of the Constitution and Article 6 of the European Convention on Human Rights.
The Issues on this Appeal
There are a large number of grounds of appeal listed in the Notice of Appeal, ten in all, leaving aside the question of sentence. They can and have been helpfully grouped by counsel for the Applicant into logical categories, as follows:
(a) The wrongful admission into evidence of the content of videos and memoranda of interviews conducted with the Applicant; [Grounds 1-3]
(b) The wrongful use of evidence, determined by the trial court against the Director of Public Prosecutions in the course of the Applicant’s earlier trial for possession of explosives and of which he was found not guilty, in the context of this later trial for membership of an unlawful organisation; [Ground 4]
(c) The wrongful finding that certain evidence was capable of corroborating the belief of the Chief Superintendent as to the Applicant’s membership of an illegal organisation.[Ground 5]
(d) The wrongful rejection by the trial court of the Applicant’s submission that the trial was not fair, having regard to the lack of opportunity to test the basis of the belief of the Chief Superintendent as to the Applicant’s membership of an illegal organisation, and the related wrongful finding that the non disclosure of sources of information upon which his belief was based was not a breach of the constitutional right to a fair trial, or of Article 6 of the European Convention on Human Rights, and the wrongful finding that the Applicant had not challenged the opinion of the Garda witness when he had. [Grounds 6-8]
(e) The judgment of the trial court was internally inconsistent, which arises because the Applicant was convicted on the basis of evidence which was found to be insufficient to convict his co-accused, a Mr. Kelly, on the same charge.
This Court now turns to the detailed grounds for leave to appeal, taking them as they were argued for on behalf of the Applicant.

Grounds 1 to 3
By the first of these related grounds of appeal the Applicant alleges that the learned trial court wrongly admitted into evidence the content of videos and memos of interviews conducted with the Applicant, in circumstances where, although Section 2 of the Act of 1998 was invoked by members of an Garda, it was not explained to the Applicant that his answers could be used as evidence only in a trial for membership of an illegal organisation, but not in respect of other charges, such as those for which he was subsequently found not guilty.
By the second ground it is contended that the learned trial court wrongly admitted into evidence videos and memos of interviews in circumstances where Section 5 of the Act of 1998 was invoked and the Applicant was not told whether or not a failure to answer questions would amount to a failure under Section 2 of the Act of 1998 and that this could give rise to inferences being drawn by a Court.
Finally, by ground three it is claimed that the learned trial court wrongly admitted into evidence the videos and memos of interviews where questions which might involve Sections 2 and 5 of the Act of 1998 were intermingled, in that those sections were invoked separately in alternate interviews by Garda in the course of the questioning over a period of 48 hours, thereby causing confusion to the Applicant.
These three grounds invoke the same basic point, namely, that the content of the videos and memos of interviews was wrongly admitted in evidence by the trial court which then wrongly drew inferences from the same. The foundation for the objection is the argument that, by reason of the alleged failure of the garda in the course of an interview to make a proper distinction between one category or type of question and answer, and to draw a sufficiently clear distinction between the application of Section 2 and of Section 5 of the Act of 1998 to answers sought, to explain the possible statutory consequences arising from a failure to respond to a particular question put in the context of Section 2, and, separately, in the context of Section 5, the answers are wrongly admitted. It was argued that no inferences should be drawn from a failure on the part of the Applicant to answer the same, including any failure arising from confusion on the part of the Applicant caused by the manner of interview.
Further, it is contended that, on a proper evaluation of the answers actually given, the trial court ought to have assessed these, in particular, by reference to the specific category or type of question being asked and the related applicable section, but failed to do so. In that regard, counsel for the Applicant contends that while the Applicant answered “no” to a particular series of salient or material questions, and had not responded to others, such failure to respond was an innocent failure, and lent itself to an innocent explanation, namely confusion caused by the interviewing members of An Garda, having regard to the foregoing arguments and the evidence, including the videos and memoranda of interviews, the Applicant was entitled to the benefit of that innocent explanation.
Counsel for the Respondent contends that comments actually made by the Applicant during the course of the interviews were indicative of the Applicant having been keenly aware at all stages of the interviews of the legal regime under which he was being questioned and of its consequences. The trial court was entitled to come to the findings it did, and to draw all permitted inferences.
Conclusions:
In an application such as this the court is ascertaining whether an Applicant has made out grounds for suggesting that the trial court has failed in a material way to carry out its functions in accordance with the law, in the broadest sense, such that he ought to be granted leave to appeal. Many issues before a trial court are issues which it is best placed to determine, for example, such matters as the credibility of a witness from his demeanour in court, or the assessment of the content of video interviews with an accused which the trial court has viewed.
Here the issue for the trial court was to determine whether, on a proper assessment of the videos and memos of interviews with the Applicant, the Applicant had failed to furnish responses to questions put to him, and whether in such event the trial court was entitled to draw the statutory inferences from any such failure, or in the alternative, as contended for by the Applicant, whether the interviews were unfair and/or the questions confusing such that the interviews should not have been admitted into evidence at all and/or no adverse inferences drawn from their content, especially inferences pursuant to s.2 of the Act of 1998. The trial court read the memoranda of the interviews in full, and considered them – as is clear from their judgment - and viewed the entire of the video tapes of the several interviews with the Applicant.
While it did have transcripts of the interviews, and considered these, this court did not find it necessary to view the video tapes. It was for the trial court to determine whether the witness was, on the memoranda of interviews and on the video evidence, confused in any respect in the course of the interviews, as was contended for. The Applicant did not, himself, give any evidence in the course of the trial, as he was fully entitled not to do, and so did not give any direct evidence of confusion or misunderstanding on his part. That confusion was urged on the trial court on behalf of the Applicant, as something to be inferred from a review of the above materials.
Only if the Applicant can establish that the trial court misdirected itself in some material manner in its assessment of the video interviews can the Applicant succeed on these grounds for leave to appeal. The trial court made particular reference in the course of its judgment to the fact that it had both read the content of the interviews and had seen the videos of the same, and specified the particular videos to which it was referring. It pointed to matters in respect of which it found the Applicant (a) had lied and been found to have lied; and (b) had been asked, but had not answered, questions, these being material questions relating to the issue of membership of an illegal organisation. In particular the trial court had regard in its judgment to one of several arguments put by Mr. O’Carroll, senior counsel for the Applicant, in the course of a voir dire within the trial, seeking to prevent the interviews being admitted, namely that questions put, being of a compound nature and therefore not being capable of being answered in a straightforward way, should not be admitted or should not result in any inferences adverse to the Applicant being drawn. The trial court rejected these, as well as others arguments, but stated in its judgment it did not need to repeat its findings in that regard.
It should be noted that the trial court, in coming to its decision on the voir dire application had stated:

“In any event, in this case it is clear from the video recording of the interview of Mr. Matthews which commenced at 20.04 on 14th June that he knew well what was going on, which is not at all surprising, given the number of contacts he had had with his solicitor during the period of his detention.

In the course of that interview Mr. Matthews asked two questions which indicate to the Court that he was fully appreciative of the implications of what he was being asked. Those questions were, firstly:

‘A. What am I being cautioned under now?’

And secondly:

‘A. Under what section?’

It is clear from those questions in the view of the Court that Mr. Matthews had been fully advised with regard to the type of questioning he could expect and how he was to deal with them.”

And specifically in relation to the question of any confusion, by reason of alleged compound questions, the trial court had also held:

“Moreover, having regard to how Mr. Matthews dealt with them, as evidenced by the video recordings, the Court is in no doubt that they did not confuse him and accordingly were not unfair. Indeed, it seems to the Court that Mr. Matthews’ selective answers to those questions were very intelligent.”

This court is satisfied that the trial court committed no error of law in its assessment of the video recordings or memoranda of the interviews or in admitting the content of the same, or in drawing inferences, as it was entitled to in law to do, from the failure of the Applicant to answer questions put to him material to his membership of an illegal organisation. It is clear from the transcripts that the Applicant knew full well precisely what he was being asked, its significance, and the various legal consequences which might well arise were he to be charged in due course with the offences of which he was in fact, charged, where he had not responded to questions posed. Nor is there any error of law established by the Applicant as to the inferences actually drawn by the trial court in the course of its judgment from the responses actually given by him.
These three grounds of appeal are therefore not sustainable, and leave to appeal on the basis of each of them is rejected.

Ground 4
In essence, the Applicant contends that evidence, which had not been considered persuasive in the eyes of the trial court in relation to a charge against the Applicant of possession of explosives and for which he was found not guilty in an earlier trial, could not be adduced to support a charge of membership of an illegal organisation in the present, subsequent, trial.
Counsel for the Applicant explains that in November, 2004 the Applicant was acquitted of two charges of possession of explosives at the Thornfield farm on the 13th June, 2003. In those proceedings, the trial court referred to the evidence adduced against the Applicant and stated that:

"taken individually, the several circumstances which it is alleged to have collectively established the case against Mr. Mathews were capable of an innocent interpretation. Moreover, even viewing those circumstances collectively, the Court is of the view that they are not sufficiently persuasive to

satisfy the Court of Mr. Mathews guilt beyond reasonable doubt".

Counsel for the Applicant submits that, despite the above finding, the prosecution wrongly sought in the course of the present trial to adduce the same evidence as being probative of the Applicant’s membership of an illegal organisation. Such evidence is objected to on the basis that the trial court had already decided that each circumstance was capable of an innocent explanation and that the issue was therefore res judicata, relying on the decision in The People (DPP) v Callaghan [2001] 1 I.R. 584 in that regard.
Counsel for the Respondent contends that the principle of issue estoppel, does not apply in criminal proceedings. The evidence accepted by the trial court as being indicative of the Applicant’s involvement in the matters occurring on the 12th and 13th June 2003 was the following:

(a) that he hired the cement mixer found at Thornfield

from Dromad Hire on the morning of the 12th June 2003, with a co-accused paying for it;

(b) that he delivered the cement mixer to Joseph Fee's house;

(d) that his jeep was seen driving to Joseph Fee's house later that evening; and

(e) that he was sighted at a meeting on the weighbridge on the Newry Road with Seamus McKenna and Joseph Fee on the morning of the 13th June 2003.

Counsel for the Respondent argues that although the charges for possession of explosives, and for membership of an illegal organisation were dealt with in two separate trials, this was done for convenience and not otherwise. There would have been no impediment however to adducing the evidence in issue in the course of a trial in respect of two or three even charges had they all been dealt with together, as they could have been. It would moreover have been open to the trial court to have found the Applicant guilty of one charge but not of another, or of neither, on the same facts and evidence adduced in a single trial.
It is also argued that insofar as the judgment of the Special Criminal Court in the earlier trial refers to the Applicant's movements on the 12th and 13th June as being “circumstances ... capable of an innocent interpretation”, these words, taken in context, must mean 'innocent' in the sense of 'innocent of the charge’ which was then before the earlier trial court, which was one of possession of explosives. The trial court was not thereby concluding that the circumstances were capable of an innocent interpretation in respect of any or all other offences, including those charged in the trial to which this application relates.
Conclusion:
This ground appears to be raised in the context of issue estoppel. It is now an established principle of law that issue estoppel does not apply in the context of criminal proceedings save in the context of autrefois acquit or autrefois convict, as is clear from Lynch v Moran & DPP (unreported Sup. Ct. 23rd May 2006). It is true that evidence consisting of the same factual material was presented in the course of the trial for possession of an explosive substance as was also adduced in the course of the trial the subject of this application, being a trial in respect of the charge of membership of an illegal organisation. This is accepted by the Respondent.
The matter in question is not really a question of issue estoppel in the sense of an issue being found and determined by the court, at the conclusion of a trial, in favour of one side or of the other. As to the O’Callaghan decision upon which the Applicant relies, that was a case in which the admissibility of evidence of a prosecution witness in a retrial in respect of precisely the same offence, which was arson, was under review. Any doubt about the legal position obtaining has now been put beyond question, as a result of the decision of The Supreme Court in the above case of Lynch v Moran & Anor, supra, in which the matter was fully considered. Even though the “issue” arising in that case was one which was decided in the course of a voir dire and not one which had been determined as part of a final ruling, nevertheless in the lengthy judgment of Kearns, J. the history and scope of issue estoppel in this jurisdiction, in the United Kingdom, in Canada and in Australia was considered in detail with a view to clarifying what appeared to be some confusion on the part of a number of commentators with regard to the modern the law of issue estoppel. Some considerable assistance is therefore found in that judgment on the issue arising here.
The question which arises here is whether, on wholly separate trials, the trial court was in the present trial prohibited from considering the same evidence, but in the context of a different charge to that on which the Applicant was acquitted in the earlier trial, and from relying on that evidence to convict the Applicant on that other charge at this later trial. Here the offence of which he was charged in the first trial, namely the offence of possession of explosive substances, is quite different to that in the present trial, that is to say the offence of membership of an illegal organisation, even if the background events and other facts sought to be adduced in evidence are identical in each trial.
Further when the trial court, in the first trial, found the Applicant not guilty, it made no finding whatsoever as to whether the same evidence might or might not support a different charge. It would be otherwise if the same facts were being relied upon by the prosecution to support a second identical charge. In that event, a prohibition or restriction on adducing that evidence could be validly invoked, to avoid any question of the Applicant being placed in double jeopardy. As was stated by Kearns, J. in the judgment in Lynch v Moran, supra.:

“In Rogers v. The Queen, a majority of the High Court of Australia held that the doctrine of issue estoppel as it had developed in civil proceedings was not applicable to criminal proceedings. At the commencement of his judgment, Mason C.J. stated:-

“I adhere to the view which I expressed in R. v. Storey 1978 140 C.L.R. 364 that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. The reasons which compel acceptance of that view are set out in the judgments of Barwich C.J., Gibbs J. and myself in that case. The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted. This view accords with the position reached in other common law jurisdictions.”

This court adopts the above views as correctly representing the law. It is quite

clear therefore that the question of issue estoppel, even in the case of an issue being determined definitively as part of a judgment, can only have effect or consequence, not as issue estoppel in reality, but as part of one of the several defences set forth above. This court accepts the argument advanced by the Respondent that the separation of the two trials, even though arising from the same events, and even though concerning the same factual matters, was only for purposes of convenience. That is not disputed by the Applicant. Further this court agrees with the Respondent that the finding in the earlier trial that the facts were capable of an “innocent interpretation” could only mean innocent in the context of the charge then before the earlier trial court, and not innocent for all or any charge which might validly be brought subsequently in respect of the same events. What occurred in the present trial was perfectly permissible.
The court in the circumstances is not persuaded that the application for leave to appeal against conviction on this ground should be permitted.

Grounds 6 - 8

The main thrust of the Applicant’s submissions under these grounds concerns the admission into evidence by the trial court of the belief evidence of a Chief Superintendent. Counsel for the Applicant argues that the admission of such belief evidence, in respect of which privilege is claimed, when at the same time a court is asked to draw conclusions adverse to an accused from that very evidence, interferes with the lawful opportunity or right which an accused ought to have to challenge both the belief and its underlying factual bases.
The Applicant submits that the acceptance by the trial court of Chief Superintendent Finnegan's belief, based on confidential sources and information in respect of both of which the witness claimed privilege, and which the Applicant was precluded from testing in any way, is a breach of his constitutional right to a fair trial and of the established case law of this jurisdiction, including In re: Haughey [1971] 2 I.R. 217 and the several cases following on from that judgment. The failure of the trial court to ensure that the admission of such untested evidence was adequately counterbalanced by any mechanism protecting the rights of the Applicant, is also, it was claimed, a breach of the constitutional right to a fair trial. The evidence should not have been admitted, and if it was, no weight should have been attached to it. The Applicant contends that the previous cases on the constitutionality of Section 3(2) of the Offences Against the State (Amendment) Act 1972 did not deal with the issue now raised, but with a more limited objection. In particular the case of O’Leary v Ireland [1993] I.R. 102 did not consider the effect of a restriction on the right to cross-examine a witness on the fairness of the trial of an accused.
As to this ground, the Respondent argues, firstly, that the evidence is admissible, and that Section 3(2) of the Act of 1972, as amended, so provides. Since there is a presumption of constitutionality attaching to that legislation, it could not be contended otherwise. Further the section has withstood a constitutional challenge in the case of O’Leary v Ireland, supra. In the circumstances, whether the fair trial obligation stems from Article 38 of the Constitution or from Article 6 of the European Convention on Human Rights, as incorporated into Irish law, it could not be said that belief evidence is, per se, inadmissible. The Applicant’s argument that no weight should be attached to such belief evidence, in the absence of an opportunity to cross-examine the witness as to the bases for such belief, would have the same effect as that contended for on the issue of admissibility, simpliciter, of the evidence. If the trial court were to hear evidence but could give it no weight whatsoever, there would in reality be no reason to admit the evidence in the first place. It is submitted on behalf of the Respondent that the weight to be attached to it, is, on the above jurisprudence, such weight as the trial court considers appropriate in all the circumstances.
Conclusions on Grounds 6-8:
While at the time of the hearing of this application for leave to appeal the jurisprudence of the courts here had not been fully established with regard to the principles applicable to the issue now raised by the Applicant, this issue as to the legal effect of a restriction on the entitlement to cross-examine a garda witness of appropriate rank as to his belief that an accused was a member of an illegal organisation, was considered in detail by the Supreme Court in the recent case of The People at the Suit of The Director of Public Prosecutions v Kelly, (unreported, Supreme Court, 4th April 2006). That appeal was heard pursuant to a certificate issued by the Court of Criminal Appeal on a specified point of law, in accordance with the provisions of Section 29 of the Courts of Justice Act 1924. The specified point of law was as follows:

“Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from enquiring into the basis of the evidence of belief given against him at his trial pursuant to the provisions of the Offences against the State Act, 1939, as amended, on a charge of membership of an unlawful organisation before the Special Criminal Court.”

The Supreme Court was not, in that case, concerned with the admissibility of the evidence of the Chief Superintendent, nor with the question of his entitlement to plead informer privilege.
The issue considered in DPP v Kelly, supra, was whether, as here, the limitation on the ability to cross examine as to sources of the belief evidence rendered the trial unfair. It is clear from the judgment that the Supreme Court considered, and this court agrees that the issue of the admissibility of such evidence was already disposed of in the case of O’Leary v Ireland supra, where Costello J. (as he then was) in the course of his judgment, stated:

“What this section does is to make admissible in evidence in certain trials statements of belief which would otherwise be inadmissible. The statement of belief if proffered at the trial becomes “evidence” by virtue of this section in the prosecution case against the accused. Like other evidence it has to be weighed and considered and the section cannot be construed as meaning that the court of trial must convict the accused in the absence of exculpatory evidence. The accused need not to give evidence, and he may ask the court to hold that the evidence does not establish beyond a reasonable doubt that he is a member of an unlawful organisation. Should the court agree he must be acquitted.”

The Applicant claims that this latter case did not concern the inadmissibility of evidence based on the absence of or restriction on cross examination, and that is undoubtedly true. And it is equally true that there was no argument in that case as to whether such a restriction on the right to cross examine would, or would likely, lead to an unfair trial. However, it will be seen from the following extracts from the judgment of The Supreme Court in DPP v Kelly, supra. ,that these issues are now fully dealt with. In the course of his judgment in DPP v Kelly, supra, in the majority judgment of the court, Geoghegan, J. stated:

“Counsel for the Director of Public Prosecution has come forward with two possible constructions of section 3(2). The first and the one favoured by the Director is that while section 3(2) permits evidence of the belief, it does not permit evidence about the basis for the belief. It is argued on behalf of the Director of Public Prosecutions that a contrary interpretation would appear to defeat the purpose of the section partly on the basis that it might defeat informer privilege and partly on the basis that in practice it might involve the admission of hearsay evidence. The second and alternative construction put forward by the Director of Public Prosecutions is that the subsection at least authorises the giving of evidence about the basis for the Chief Superintendent’s belief but not to the extent that it interferes with or defeats a legitimate plea of privilege.

Even though the first of those two alternative interpretations is strongly favoured by the Director, I prefer the second. Conceptually, and possibly in practice in some cases, evidence of the basis for the belief of the Chief Superintendent might not infringe any protection of informers as it might not be based on informers. As the normal rights of an accused are being infringed, it would seem to me that there must be a constitutional requirement that such limitation be kept to a minimum. It would be disproportionate to adopt the interpretation of the subsection favoured by the Director of Public Prosecutions. I believe therefore, that the Director’s alternative interpretation is the correct one.”

The majority decision of the Supreme Court stated further:

It is essential to consider the purpose of section 3(2) of the 1972 Act. Prima facie if the Garda Síochána have reliable information that somebody is a member of a prescribed organisation there might be nothing to prevent them marshalling the necessary witnesses to give direct proof of this. However, it is perfectly clear that the legislation has been passed in the context of preserving the security of the State and the legitimate concern that it will not in practice be possible in many, if not most cases, to adduce direct evidence from lay witnesses establishing the illegal membership. Such witnesses will not come forward under fear of reprisal. The Special Court itself was established to avoid the mischief of juror coercion and intimidation. In relation to all anti-terrorist offences, as a matter of common sense, there would be equal apprehension about intimidation of witnesses. It is a reasonable inference to draw that the subsection was enacted out of bitter experience. It is carefully crafted ensuring that the belief evidence must come from an officer of an Garda Síochána not below the rank of Chief Superintendent. This is with a view to establishing trust and credibility as far as possible. Counsel for the appellant accepts the concept of informer confidentiality but any extensive probing in relation to the basis of the information irrespective of whether names are requested or not may inevitably undermine the protection of the informer by affording clues to his identity. Even without the statutory provision, informer privilege may involve more than merely refusing to divulge the name of an informer. Surrounding evidence which would be likely or might tend to disclose the identity of the informer would itself be protected by the privilege in the sense that it may not be allowed to be adduced under cross-examination. I have no doubt that in so far as Mr. Finlay was limited in his cross-examination of Chief Superintendent Kelly, permission for this limitation was inherent in the subsection itself which enjoys the presumption of constitutionality.

And further:

It has been the practice apparently of the Special Criminal Court not to convict on the belief evidence alone. In my view, that practice is commendable though not absolutely required by statute. There may be exceptional cases where the Special Criminal Court in its wisdom would be entitled to convict on the belief evidence alone. Equally commendable is the practice of the Director of Public Prosecutions of which the court has been informed, not to initiate a prosecution based solely on the belief evidence. These self-imposed restrictions by the Special Criminal Court and by the Director of Public Prosecutions are with a view to ensuring a fair trial.”

In applying the finding to the issues arising in the case before it, the judgment states:

“I agree with the view taken by the Court of Criminal Appeal in this case that the balancing of the conflicting rights and interests can only be determined by the court of trial. The Chief Superintendent’s belief has no special status but is merely a piece of admissible evidence. As the Court of Criminal Appeal pointed out, although the Special Criminal Court was entitled to take into account the fact that the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into account that the appellant made a false statement to the gardaí and the other corroborating evidence of other witnesses particularly the evidence of Mr. David Mooney which was accepted.”

The separate judgment of Fennelly J. did not dissent from the above views.

The restriction on the right to cross-examine as to the basis for the belief evidence of a Chief Superintendent has now been clearly found by the Supreme Court not to infringe the right to a fair trial guaranteed by the Constitution. While the above judgment was delivered after the hearing of this appeal, it is the court’s view that the parties are not disadvantaged in not having addressed it on the legal principles established in that case, and no request was made to do so following the delivery of that judgment.
Before dealing with the application of the foregoing jurisprudence to the facts established in the present case it is necessary to consider also the related arguments put forward on behalf of the Applicant on the effect of Article 6 of the European Convention on Human Rights, which the court will now consider.
In the case of DPP v Kelly, supra., the Supreme Court did not deliver any majority judgment on the jurisprudence opened to the Court in that case based on Article 6 of the above Convention. That was presumably because it was not in fact thought to be appropriate, having regard to the certified question and the majority judgment vis a vis Article 38 of the Constitution. It is clear, however, that arguments concerning Article 6 and the jurisprudence on the same must have been exposed fully to the Court. This Court gains considerable assistance from the judgment of Fennelly J., in that case in reaching its conclusions in respect of the application of that Article.
It is not necessary to recite separately the arguments made in respect of Article 6 in this case, since those raised concerning Article 38 of the Constitution are, in reality, also those invoked in the context of Article 6. In the course of his judgment in the above case, Fennelly, J. considered in detail the case law of the European Court of Human Rights and having analysed it in detail, concluded that while in the past that Court had found a violation of Article 6 of the Convention by reason of the absence of the right to cross-examine anonymous witnesses, such as in the case of Kostovski v Netherlands [1989] 12 EHRR, nevertheless that Court had modified its stance, as was apparent from the subsequent decision in Doorsen v Netherlands, 22 EHRR 330, in respect of which he stated as follows:

“According to its subsequent decision in Doorsen v Netherlands 22 EHRR 330, these paragraphs should be read as implying that the use of anonymous statements at trial is not, in all circumstances, incompatible with the Convention. It is, however, difficult to avoid the conclusion that it modified its stance in Doorson. There the court said (paragraph 70 of the judgment):

“It is true that Article …does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, the life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8…of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.”

And further:

“In subsequent years the European Court has adhered to the principle that the fair administration of justice holds an important position in a democratic society and that measures restricting the rights of the defence should be restricted to what is strictly necessary (see, for example, Mechelen v Netherlands 1997 25 EHRR 647; Rowe v United Kingdom 2000 30 EHRR 1). Recognition of the legitimate public interest in protecting police sources of information or the safety of informers or witnesses has led to the acceptance of the possible justification of the withholding of relevant information from disclosure to the defence.”

For the purposes of this judgment, the Court does not have regard to the argument put forward on the part of the Respondent to the effect that the argument made in the course of the trial on this aspect of the matter was not the same as that now made in the course of this application. While normally this might be an objection which, on the case law, could be validly raised, the issue for consideration by this court, whether pursuant to the provisions of Article 38 or by the invocation of Article 6 of the European Convention on Human Right is sufficiently important to have it determined. While the European Convention on Human Rights Act 2003 came into force on the 31st December 2003 and the offence occurred on the 13th June 2003, nevertheless the case law of the European Court of Human Rights on the correct scope and permitted restrictions, if any, arising from Article 6 has a considerable influence on, even though it is not determinative of, the issues arising in the trial or on this application.
This court is satisfied that a restriction on the ability to cross examine the garda witness in question arising from his claim to privilege in respect of the underlying sources of information upon which his belief was based, does not, ipso facto, on the case law, constitute failure to comply with Article 6 of the European Convention on Human Rights, as alleged by the Applicant. Rather the issue to be decided is whether, in the context of ensuring the existence of fair trial, a restriction or limitation is necessary, and is the least invasive step which can be taken to protect the legitimate interest invoked. This court is also satisfied having regard to the majority judgment of The Supreme Court in DPP v Kelly, supra, in the context of Article 38 of the Constitution, as well as the above analysis found in the judgment of Fennelly J. as to Article 6 of the Convention, that the restriction may be permitted if it is necessary and is the least invasive approach available. In the above case, the majority decision of the court clearly found that it was necessary and also that it was counterbalanced by matters which will be referred to below, so as to ensure a fair trial.
In the present case the trial court considered it could admit the belief evidence of Chief Superintendent Finnegan. In accordance with the above case law, it was entitled to do so. It stated it would not convict on that evidence alone, although permitted by law so to do. This Court has been told, and accepts, that it is not the practice of the Special Criminal Court to convict a person of membership of unlawful organisation on the sole basis of belief evidence, admissible by virtue of s.3(2) of the Act of 1972, alone. It appears also that it is not the practice of the Director of Public Prosecutions to institute a prosecution based solely on belief evidence. This approach has been found by the Supreme Court in DPP v Kelly supra., to be a means by which the trial court ensures a fair trial or what, in this case, the Applicant has called the obligation to ensure that the restriction on cross-examination is counter balanced. This sufficiently complies also with the case law as to the requirements of Article 6 of the Convention.
Moreover, in this case, there is no question of the Chief Superintendent’s belief being the only evidence against the Applicant. The role of the belief evidence of the Chief Superintendent is therefore to be seen and considered as being one part of the overall evidence against the Applicant establishing the offence. The finding of the trial court was to the effect that it had before it (a) the belief evidence Chief Superintendent Finnegan; (b) evidence of facts which predated the 12 or 13th June 2003 establishing the Applicant’s prior associations with persons who were established members of the I.R.A. or who were convicted of subversive crime; (c) inferences which it was entitled to draw from the failure of the Applicant to respond, in the course of garda interviews, to material questions relating to his membership of an illegal organisation; (d) inferences drawn from his failure to respond to questions which were material to the events occurring on the 12th and/or 13th June 2003, including in particular his failure to respond to questions concerning the hiring of the cement mixer found in use at the bomb making facility at the Thornfield farm, or to give any or any alternative innocent explanation as to its hiring, as well as the fact that he lied in his answers in respect of his presence at the Tallanstown farm, and (f) the facts proved against him as accepted by the trial court concerning his actual involvement in the events occurring on the 12th and 13th June 2003.
In the foregoing circumstances, this court is satisfied that the Applicant has not made out a case under these grounds upon which leave to appeal should be granted.
Ground 5
This ground is allied to the belief evidence of Chief Superintendent Finnegan, concerning the material presented to the trial court, and upon which the latter relied. It includes certain strands and argument already dealt with in other grounds: the outstanding part of this ground concerns an argument as to whether corroboration of his belief evidence was established.
On his argument, the Applicant contends that while the trial court held that the evidence corroborated the Chief Superintendent's opinion that the Applicant was a member of the I.R.A., the Court was obliged to examine each piece of evidence and find, beyond a reasonable doubt, that this was true, but the trial court did not do so.
On behalf of the Respondent, it is contended that the trial court did not depart in any way from the legal approach to circumstantial evidence found in the jurisprudence, namely, to examine the evidence and be convinced as to its truth, to weigh the evidence in conjunction with all other evidence in the case, and to satisfy itself that the entire of the evidence established the guilt of the accused on the offence charged.
Conclusion
This court agrees with the argument put forward on behalf of the Respondent on the correct approach to be adopted. Each piece of evidence does not have to be analysed so as to see whether, on its own, it establishes beyond reasonable doubt the guilt of the accused. If that were so, there would be no need for any other piece(s) of evidence. That is not to say that each piece of individual evidence is not to be fully proved. It must be proved beyond reasonable doubt. But once proven to that standard, the court is then entitled to consider all of the pieces of proven evidence cumulatively to see whether the combined effect of that evidence establishes, corroborates or supports the case made. Viewed in that light, the court now considers whether the trial court erred in the manner in which it approached the evidence tendered in respect of the Applicant’s alleged associations with others, prior to the events of the 12th and 13th June, 2003 as supporting or corroborating the Chief Superintendent’s belief. On this aspect of the case, the prosecution tendered the following, together with other material, which was established to the satisfaction of the court:

(a) Sighting of the Applicant on 1st November 1998 at the Edentubber commemoration (commemoration of five people who blew themselves up while assembling a bomb) in the company of Joseph Fee and Seamus McKenna and also Liam C V Campbell, a person convicted of membership by the Special Criminal Court, which commemoration was advertised as being organised by Republican Sinn Fein Continuity IRA.

(b) Sighting of Applicant on 7th November 1999 at the Edentubber commemoration.

(d) Sighting of Applicant at on 17th June 2001 in Dundalk in the company of Seamus McKenna in a vehicle being driven by the Applicant.

(e) Sighting of Applicant at 4.45 pm on 27th January 2003 at Newry Road, Dundalk in the company of Seamus McKenna, in a car being driven by the Applicant.

The trial court dealt with this evidence in the following manner. It stated:

“The court heard a volume of evidence which indicated that, both prior to and subsequent to the 13th June, [each of] the accused was seen in the company of men who were established members of the I.R.A., or who had been convicted of subversive crime. … . .. the court is of the view that the evidence which pointed to [each of] the accused having been in the company of established members of the I.R.A., or persons convicted of subversive crime before 13th June 2003 is not evidence which is corroborative of the Chief Superintendent’s belief that each of the accused is a member of the I.R.A.

Rather is it, in the view of the court, one of the grounds upon which that belief is based.

”

(emphasis added)

It is clear therefore that, so far as that evidence is concerned, it was, this court’s view correctly, to be considered as one of the bases for the belief of the Chief Superintendent rather than as merely corroborative of that belief, although it would also corroborate that belief.
Turning now to the other items of evidence which the court found to be corroborative or supportive of the belief of the Chief Superintendent, these included (a) the inferences which the court drew from the answers given by the Applicant to questions material to the issue of membership put to him by members of An Garda in the course of his detention, including the fact that he failed to give any explanation or any innocent one, for the hiring of the cement mixer; (b) the Applicant’s established association with the hiring of the cement mixer which was found being used the day following that hiring for the purpose of manufacturing an explosive substance at Thornfield on the 13th June, 2003; (c) the fact that on the evening prior to the discovery of the bombmaking, the Applicant was seen in the company of Seamus McKenna, one of those discovered making the bomb at Thornfield on the following day; (d) the fact that he was seen on the 12th June visiting the Tallanstown farm, where; on the following day an explosive substance was found; and (e) the fact that he was seen visiting the home of Joseph Fee, on the 12th June 2003, who on the following day was found to be in possession of an explosive substance. The evidence which established the Applicant’s involvement in the events of the 12th and 13th June 2003 was also more than merely corroborative of other evidence, it also corroborated and supported the belief evidence of the garda witness.
All of these pieces of evidence, the Court found, were established beyond reasonable doubt. The question which arises is whether, in that context, and having regard also to the additional evidence of earlier associations as previously set forth in this judgment, the trial court was entitled to consider that the belief evidence of the Chief Superintendent had been adequately corroborated or supported. It should be noted that the evidence as to the Applicant’s prior associations, as above described, was not challenged in the course of the trial. .
This court is satisfied that the trial court was entitled to conclude from the foregoing materials that the belief evidence of the Chief Superintendent had been sufficiently supported or corroborated, where such corroboration was required, and that it did not commit any error of law in concluding, as it did, that the belief evidence of Chief Superintendent Finnegan “is adequately corroborated and supported by the other evidence to which reference has been made.”
Grounds 9 and 10
Finally, the court is satisfied that these do not, in reality, constitute independent grounds, and have already been adequately considered and dealt with, as appropriate. As to Ground 9, this was not argued in any great detail before this court. However, the court finds specifically that the argument put forward as part of the submissions on behalf of the Applicant as to the distinction drawn by the trial court between the Applicant and the co-accused is not sustainable on the evidence in the case, and Applicant has failed to persuade this court that this distinction resulted in an unfair trial as regards him.
In light of the foregoing, the Court refuses leave to appeal on any of the grounds contended for on behalf of the Applicant.