![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Irish Court of Criminal Appeal |
||
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Kenneth Donohue [2007] IECCA 97 (26 October 2007) URL: http://www.bailii.org/ie/cases/IECCA/2007/C97.html Cite as: [2007] IECCA 97, [2008] 2 IR 193 |
[New search]
[Context]
[Printable version]
[Help]
Judgment Title: D.P.P.-v- Kenneth Donohue Composition of Court: Macken J., O'Neill J., Herbert J. Judgment by: Macken J. Status of Judgment: Approved
Outcome: Refuse Section 29 Certificate | ||||||||||
THE COURT OF CRIMINAL APPEAL 243/04 Macken J. Budd J. de Valera J. Between: THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS and KENNETH DONOHUE Applicant Judgment of the court delivered on the 26th October 2007 by Macken, J. This is an application for a certificate for leave to appeal made pursuant to the provisions of S.29 of the Courts of Justice Act 1924 in respect of a question which the applicant wishes to have certified to the Supreme Court for its opinion, arising out of the decision of this court made on the 28th November 2006 by which this court rejected his application for leave to appeal against conviction. On the 18th November 2004 the applicant and a co-accused, Niall Binead, were convicted by the Special Criminal Court of the offence of membership of an unlawful organization, namely the IRA, after a hearing which lasted several days, and upon conviction, the applicant was sentenced to four years imprisonment. From that conviction, he lodged an application for leave to appeal against conviction and sentence. The hearing of that application was adjourned on the basis that the parties considered the judgment in a case, which had already referred to the Supreme Court on an analogous question, would be likely to be of relevance to the outcome of the applicant’s application for leave to appeal. By a decision of this court handed down on the 28th November 2006, the application for leave to appeal against conviction was refused on all of the grounds raised. By Notice of Motion dated the 13th March 2007 application was made to this Court for a certificate for leave to appeal to the Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924 (“the Act of 1924”). On this application, it is submitted that a single question ought to be certified to the Supreme Court, in the following terms:
![]() ![]() ![]() ![]()
There are, effectively, two strands to the argument of counsel on behalf of the applicant. Firstly he contends that even if the decision of the Supreme Court in DPP v Kelly [20060 ILRM 321, is of some relevance, which he does not accept, it does not lend itself to the conclusion that there is no breach of ![]() ![]() Further, it is submitted that, according to the jurisprudence of the European Court of Human Rights, and contrary to what occurred in the present case before the trial court, the applicant was entitled to know the basis for the opinion or belief of the Chief Superintendent, and the prosecution had failed to furnish this information. The Chief Superintendent of An Garda Siochana, a witness at the trial, had invoked privilege against disclosure of information on the grounds that to disclose the same would, inter alia, endanger life. The information sought therefore could not be elicited from that witness by means of cross-examination of the witness. According to counsel for the applicant, the applicant’s entitlement to disclosure of the information upon which the Chief Superintendent based his opinion or belief stems from obligations on the State flowing from ![]() ![]() ![]() ![]() In support of these arguments, counsel for the Applicant invoked several judgments of the European Court of Human Rights, to which reference will be made later in this judgment. Counsel for the respondent argues that the approach adopted by the trial judges was in line not only with the jurisprudence of the Supreme Court, citing Ward v Special Criminal Court [1994] ![]() ![]() In its judgment of the 28th November 2006 this court found that the restriction on the ability of the defence to cross examine the chief superintendent as to the sources for his belief was not, ipso facto, a failure to comply either with ![]() ![]() ![]() ![]()
![]() ![]() ![]() ![]() ![]() ![]() In DPP v Kelly, supra., the Supreme Court found that there was no breach of the right to a fair trial guaranteed by ![]() ![]() ![]() ![]() This court has verified that, in the case of DPP v Kelly, supra., the legal submissions filed both on behalf of the Appellant and on behalf of the Respondent relied, inter alia, on the Convention and on the case law of the European Court of Human Rights, in particular cases relating to ![]() ![]() The issue which now arises for consideration is whether the question now posed should be referred to the Supreme Court on the basis that the decision involves a point of law of exceptional public importance, and whether it is desirable in the public interest that an appeal should be taken to the Supreme Court, given that the purpose of the S.29 is essentially appellate in nature and is for the purpose of doing justice to an accused in a particular case. In this application, it is not submitted on behalf of the applicant that the correct position in law under the Convention, or pursuant to the case law of the European Court of Human Rights, is different to that set forth in the judgment of Fennelly, J. Nor is it contended that his analysis is in any way flawed in its interpretation of the case law of that Court invoked or cited. Nor is it suggested that there is relevant case law which would in any way undermine the analysis made, or the findings in his judgment arising from that analysis. Nor, finally, is it submitted that the fundamental guarantee to life assured by ![]() ![]() ![]() ![]() What is argued on behalf of the applicant is that the question which now arises is not one actually considered in the analysis found in the judgment of Fennelly J. On the question proposed, the basic argument is as follows. The State, through the prosecutor, is obliged to ensure that all trials, including that in the present case, are in all respects fully compliant with the provisions of ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() This court is not satisfied that the applicant’s arguments are supported by the jurisprudence of the European Court of Human Rights, or by the case law relied upon by the applicant himself. In Rowe v United Kingdom, 30 EHRR ![]() ![]() ![]() ![]() ![]() ![]() The next case invoked is Jasper v United Kingdom, 30 EHRR 441. In that case, the principles set out at (a) and (b) in Rowe v United Kingdom supra., are repeated. Further the court found that the fact that the need for disclosure was at all times under assessment by the trial judge provided a further important safeguard, in that it was the judge’s duty to monitor throughout the trial the fairness or otherwise of the withholding of the evidence. It recognized that the trial judge held a supervisory role in determining the balance between the competing rights of the defence and of public interest immunity in that case. The court found that there had been no breach of the provisions of ![]() ![]() ![]() ![]() The decision of the European Court of Human Rights in the case of Edwards v United Kingdom, supra., was also invoked on behalf of the application. This is a decision delivered in 1992, which turned very much on the peculiarities of the case. It does not bring the matter further. Although the applicant invokes the House of Lords decision in R v H & Ors, [2004] 2 AC., which refers in detail, inter alia, to decisions of the European Court of Human Rights, that case concerned only a very narrow issue, namely whether the decision to appoint a special counsel was prematurely made by the trial judge, and that court found that it had been so made. The House of Lords recognized the basic principle, well established in the jurisprudence of the courts of this jurisdiction also, that, as a rule, disclosure of all relevant material is essential and mandatory. The judgment also recognized that the institutions and procedures established to ensure that a criminal trial is fair vary almost infinitely from one jurisdiction to another, the product of historical, cultural and legal traditions (of differing natures). Furthermore, specific reference was made to the acceptance by the European Court of Human Rights that some operations must be conducted secretly if they are to be conducted effectively, as in Klass v Federal Republic of Germany [1978] 2 EHRR 214. Particular recognition was given to the role of the European Court of Human Rights in supervising the procedures adopted by a national court to ensure the fairness of a criminal trial. Of particular assistance is the statement by the House of Lords at paragraph 33 of its decision that:
Finally, the court also considers it appropriate to cite the following finding of the House of Lords in its conclusion, namely, that:
It is not necessary, in this court’s opinion, to consider individually, the other cases including one from the United States invoked on behalf of the applicant in any detail, as they do not add to the arguments propounded. Having regard to the foregoing principles and statements, it is necessary to consider whether the procedure actually adopted by the trial judges in the present case, was such that it raises a legal question of exceptional public importance within the ambit of the Constitution and/or of the Convention, in light of the jurisprudence referred to. The three trial judges heard all the legal arguments invoked by the parties in the course of the trial on the question whether the information (whether in documentary or other form) should be disclosed to the defence, or whether, in the absence of such disclosure, the prosecution was obliged to withdraw the witness whose opinion was being tendered, and not be permitted to rely on his evidence. The trial judges considered that (a) if no enquiry whatsoever was made into the basis for the Chief Superintendent’s belief, there might be an imbalance in the trial in favour of the prosecution and an absence of “equality of arms” which could be interpreted as a lack of fairness insofar as the accused is concerned, and (b) that ![]() ![]() While recognizing that informer privilege and state security are good grounds upon which a witness may not be compelled to disclose the identity of persons who are the sources of his belief or opinion, or when such disclosure would otherwise endanger state security, the trial judges considered that, in line with the requirements of ![]() It duly did so. It is the view of this court that such an approach to the task of ensuring a fair trial was within the ambit of the case law of the Supreme Court and also of the European Court of Human Rights. Indeed it was an approach clearly within the ambit of the case law of the latter court, which requires that the withholding of any such documentation must at all times remain within the supervisory control of judges themselves. The trial court, having considered the documentation, found that it constituted adequate and reliable information upon which the witness could legitimately form his opinion, and that there was nothing in any of the files which, in the view of the court, would assist the defence in proving the innocence of their clients, including the applicant. That conclusion was reached notwithstanding that no positive defence was put forward or disclosed by the applicant. Counsel for the applicant submits that the first of these findings of the trial judges is an impermissible finding, as it constitutes a review of material which is or may be determinative of the guilt of the applicant. In the opinion of this Court, this is not a correct approach to or classification of the information or of the trial judges’ finding. The trial judges were here considering whether the Chief Superintendent’s evidence, which was belief or opinion evidence, should be admitted in the course of trial without cross-examination as to its source, once privilege, based on the safety of the life of others, was invoked. In weighing up the value of that belief evidence the trial judges had no regard, and stated that they had no regard, for the material which they had seen. As is clear from the decision in R v H & Ors, supra., material which does not damage the prosecution or assist the defence, does not have to be disclosed. It appears abundantly clear from the examination made by the trial judges that, in their opinion, and the correctness of this has not been challenged, there was no such material or information in the documentation examined. Undoubtedly, if the material examined had disclosed no basis or even a questionable basis for the belief evidence, this would have been a matter helpful to the defence or a matter undermining the prosecution and would have led to a different finding. Nor did the applicant seek to have this court examine or consider the documentation in question to ascertain whether, in the exercise of the above described process, the trial judges had misdirected themselves in respect of the documents, or the material contained therein. Nor was the information “determinative” of the issue as was alleged by counsel on behalf of the applicant. On the contrary, even if there was information, the trial judges determined that they would not convict either the applicant or his co-accused, based only on the evidence of the Chief Superintendent, once admitted, but would convict only if that evidence was supported or corroborated by other evidence. It seems clear to this court that such an approach of not convicting on the basis of the Chief Superintendent’s evidence, still less on the basis of anything appearing in the documentation examined by the trial judges as part of their monitoring procedures, could not constitute the information in the documents as being in any way “determinative of the issue”, and was also the least possible interference with the applicant’s right to a fair trial. Having regard to the foregoing findings, this court concludes that the applicant has not made out a case that its decision of the 26th November 2006 involves a point of law of exceptional public importance or that it is desirable in the public interest that an appeal should be taken to the Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924. The application is, in the circumstances, refused. |