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Cite as: [2008] IECCA 67

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Judgment Title: D.P.P.-v- Colm Maguire

Neutral Citation: [2008] IECCA 67

Court of Criminal Appeal Record Number: 223/06

Date of Delivery: 07 May 2008

Court: Court of Criminal Appeal

Composition of Court: Macken J., Murphy J., deValera J.

Judgment by: Macken J.

Status of Judgment: Approved

Judgments by
Macken J.
Refuse leave to appeal against conviction

Outcome: Refuse leave to appeal against conv

Macken, J.
Murphy, J.
de Valera, J.

Judgment of the Court delivered on the 7th May 2008 by Macken, J.

This is an application for leave to appeal against conviction, brought on behalf of the applicant who was convicted on the 18th day of October 2006, of membership of an unlawful organisation, and on the 30th November 2006 was sentenced to six years imprisonment.
The grounds of appeal, numbering nine in all, as filed, are clear and can be divided into the following groups:
1. The trial judges erred in law in accepting that any weight could attach to the evidence of the Chief Superintendent as to his belief. (Grounds 1 – 4);
2. The trial judges erred in law in failing to have adequate regard to the defence case and in particular to the sworn evidence of the applicant that he was not on the date in question a member of an unlawful organisation (Ground 5);
3. The trial judges erred in law in drawing adverse inferences from the manner in which the applicant dealt with questions put to him in garda interviews, in circumstances where he had furnished denials, and in arriving at the conclusion that he had given misleading answers; and further that there was corroboration of the belief evidence of a Garda Superintendent (Grounds 6 – 7);
4. The learned judges failed in law correctly to apply certain jurisprudence of the European Court of Human Rights (Grounds 8 – 9).
      It is appropriate, having regard to the arguments made, to deal
with the first and fourth items above first since they are interrelated to some extent, and to deal with the second and third items together, since they too are interlinked.
1. The Evidence of the Chief Superintendent (Grounds 1-4):
The evidence of a Chief Superintendent, which is admissible pursuant to provisions of s.3(2) of the Offences Against the State (Amendment) Act, 1972, has now been the subject of a fairly significant number of cases, in the Supreme Court and this Court, and the jurisprudence in that regard is clear at this time. Section 3(2) of the said Act provides as follows:
      “Where an officer of An Garda Siochana, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said Section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.”
The terms of this section have been considered in detail by the Supreme Court in a recent judgment, DPP v Kelly [2006] 3 IR 115, a case referred to that Court pursuant to a Certificate granted under the provisions of s.29 of the Courts of Justice Act 1924. Implicit in the granting of such a certificate is the precondition that the point of law raised is one of exceptional public importance and that it is in the public interest that such a question be referred to the Supreme Court for its determination. In that context, this Court considers that, quite apart from its binding effect on this court, the determination of the Supreme Court in DPP v Kelly, supra., is of particular significance. That Court found, unanimously, that the restriction on the right to cross-examine a Chief Superintendent as to the sources of his belief in the course of a trial, is not an infringement of the right to a fair trial guaranteed by the Constitution.
Mr McGuinness, SC, on behalf of the applicant argues that in the present case, however, the trial judges erred in giving any weight to the evidence of the Chief Superintendent, even if that evidence was admissible. It is contended that the real question for the trial court in a case such as this is to examine with particularity the weight to be attached to the evidence of belief, since this was being tendered against a denial of membership on the part of the applicant, and since the belief evidence cannot be challenged in cross-examination. Mr McGuinness compares the approach adopted by the trial judges in this case to a different approach which he says was adopted in the case of DPP v Sherwin, Special Criminal Court, unreported, 15th December 2006.
For the Respondent, Ms Ring, SC, argued firstly that the trial Court was assessing matters of fact, and that there were ample facts to enable it decide on the appropriate weight to be given to the belief evidence. These facts included that; the witness had 35 years service in the Garda Siochana; had been involved in the investigation of subversive crime for 29 years; and was head of the Special Detective Unit involved in the provisions of State security, the investigation and monitoring of subversive crime and the assessment of intelligence. He had not based his belief on anything that happened on the date when the offence in issue occurred, nor on matters arising thereafter. He had received information about the applicant’s status in the IRA at various time, and knew the identity of all the sources of the information, none of whom had been paid, so far as he knew, and none of whom had previous convictions, so far as he knew. Further he had checked the information, which came from both garda and non garda origins, by assessing it with other information and by looking at the totality of the same emanating from different sources, verifying also whether the sources had been accurate in the giving of information in the past. Counsel further submitted that the trial court was fully alert to the role it was required to exercise in relation to the garda witness’s evidence.
      Ms Ring also invoked a recent decision of this Court in the case of DPP v
Vincent Kelly, Court of Criminal Appeal, unreported, 6th December 2007, arguing that there were significant similarities between the two cases, and that in the latter case this Court had also upheld the decision of the trial judges.
This Court is bound by the decision in the case of DPP v Martin Kelly, supra., and the earlier case of O’Leary v Ireland, [1993] 1 IR 102 which has been recognised by the Supreme Court as correctly stating the law. At the hearing before us it was clear that counsel for the applicant accepts that, in light of those cases, his argument, at least on this first ground, is directed towards the question of the weight to be attached to the statement of belief tendered, as opposed to any more underlying objection to the judgment. In essence counsel for the applicant submits that there was insufficient evidence upon which the trial judges could conclude that the evidence of belief was entitled to any weight. In that regard the written submissions filed set out part of the exchanges in the cross- examination of the witness in question, counsel contending that the evidence tendered was ambiguous. But it appears to this Court clear that the extract relied upon is not at all ambiguous. It is a statement, inter alia, that the information made available is assessed with other information, and then looked at in its totality. In answer to questions put to the witness in cross-examination as to what is looked for, it was said that the sources are checked for previous accuracy in giving information and then checked to see if the information can be confirmed, which is done in various ways. When challenged that this was not done, the Chief Superintendent disagreed and said the information is always checked as to its validity.
The conclusion which the trial court took in finding that the statement of belief was truthful is capable of being supported in the evidence. While it is always preferable for trial judges to indicate the extent of the weight to be attached to the evidence of a particular witness (see Fennelly, J. in DPP v Martin Kelly, supra.,) the absence of such a statement is not ipso facto fatal to a trial, and cannot be so considered. Indeed it is clear from the decision in DPP v Vincent Kelly, Court of Criminal Appeal, unreported, 6 December 2007, that it is not considered necessary to allocate a mathematical percentage to the weight to be given to the belief in question, and this Court fully adopts the same approach in this case as being appropriate. A helpful resume of the history of the exercise is found in that case, in which Finnegan, J. delivering the judgment stated:
      “The view expressed by Fennelly J. in The People (Director of Public Prosecutions) v Kelly that the court should have explained the weight, if any, which it attached to the evidence of the Chief Superintendent in view of the claim to privilege should be considered in the light of the foregoing. It would be particularly appropriate that the court should explain the weight which attaches to the evidence of belief where the only evidence relied upon by the prosecution is belief evidence and there is a denial on oath. Where as, in the present case, there is no denial on oath and there is other evidence to support the prosecution case, the evidence of belief is one ingredient in the prosecution’s case. The function of the court of trial is to weigh the cumulative evidence including the evidence of belief and the denial on oath if any”. (emphasis added)
The finding by the trial court that the absence of a full opportunity to cross-examine the Chief Superintendent, or other witnesses, as to belief evidence, as here, must affect the weight to be attached to the evidence, is a correct finding. In that regard, the trial court stated:
      “In each case it is a matter for the court to determine the weight to be given to the evidence before it. In the present case the absence of evidence as to the basis upon which the belief of the Chief Superintendent was formed affects the weight of that evidence, (but) nevertheless the courts accepts as truthful his evidence of belief.”
This is clearly something to which regard must be had, when putting all the evidence, including, as here, the denial on oath in conjunction with other admissible evidence, into the “mix”, so as to enable the trial court consider the effect of all of the admissible evidence adduced. This Court finds that the above extract is a sufficient indicator of the trial judges’ approach to the weight of the evidence. On one reading, it could be said that implicitly the trial Court was giving very significant weight to the evidence of the Chief Superintendent, reduced somewhat by virtue of the claim to privilege in respect of the sources upon which the belief was based.
This Court finds that the approach of the trial judges to the exercise to be carried out as regards the weight to be attached to the belief evidence in question was acceptable, and was carefully put so as to reflect correctly what the court was determining, bearing in mind that it was the weight of the statement of belief which was under consideration. This Court rejects this ground as having any real merit for the purposes of this application.
2. Failure to have sufficient regard to the jurisprudence of the European Court of Human Rights (Grounds 8, 9):
Related to the first of the issues, counsel for the applicant also submits that the trial judges had insufficient regard for the decisions of the above Court, in particular the decisions in Doorsen v Netherlands [1996] ECHR 330 and Kostowski v The Netherlands [1989] ECHR 434. Counsel, having recited the principles adopted in these two cases, submits that the decisions of that Court acknowledge it is permissible to use anonymous evidence against an accused in certain circumstances, such as in Doorsen. However, it is contended that the treatment of such anonymous evidence in the trial in issue did not meet the standard of fairness suggested by the above Court, and that the procedure in place in the trial in issue was inadequate, because it failed to ensure that, taken as a whole, the trial was fair. Counsel for the applicant also invokes a decision of the House of Lords in England, R v H & Ors [2004] 2 AC 134 in support of his contention that Article 6 of the European Convention requires that the trial process, view as a whole, must be fair. There the Court had stated:
      “It is axiomatic that a person charged with having committed a criminal offence should receive a fair trial and that, if he can not be tried fairly for that offence, he should not be trial at all”.
While accepting that in the course of his judgment in DPP v Kelly (unreported, the Supreme Court, 6th April 2006, Fennelly, J. had considered the above authorities invoked on behalf of the applicant, nevertheless counsel for the applicant contends that the belief evidence of the Chief Superintendent should have been addressed and rejected, because it involved reliance on anonymous evidence or statements, which contributed to the applicant’s conviction to a “decisive extent”.
Counsel for the respondent has pointed to the fact that these issues have been considered on a number of occasions by this Court and have previously been fully determined.
This Court is bound by the judgment of the Supreme Court in DPP v Martin Kelly, supra., but of course that decision was one concerning the ambit of Article 38 of the Constitution, and its impact, on the status of the belief of a Chief Superintendent. The citation set out above from R v H, supra., is no more than what has been established in a long line of jurisprudence of the courts in the State having regard to Article 38 of the Constitution.
It is nevertheless equally true, as has been recognised in subsequent cases before this Court, which were adjourned to await the outcome of DPP v Kelly, supra., that all of the relevant jurisprudence of the European Court of Human Rights, and not just the two above cited cases, was opened before the Supreme Court in the course of the hearing in the latter case, each of the parties relying on the same. It was for this reason that this Court, in the case of DPP v Matthews, unreported, CCA 29th March, 2007 and DPP v Donohue, unreported, CCA, 26th October 2007 was in a position to invoke the assenting judgment of Fennelly, J. in the Kelly case. His separate assenting judgment is detailed and the clear expose, inter alia, of the lengthy jurisprudence, in particular that relating to the right to a fair trial pursuant to Article 6 of the European Convention on Human Rights and Fundamental Freedoms is rightly to be considered to be of great assistance in resolving the vexed questions raised in this appeal.
Firstly it is rather a misnomer to characterise belief of the Garda Chief Superintendent is anonymous evidence of the type found in the cases cited on behalf of the applicant. It is his statement of belief which is granted the status of admissible evidence pursuant to the Act of 1972. This was made clear, by Costello, J. in the case of DPP v O’Leary, supra., and in several other cases since. The belief is just that, no more and no less. It is axiomatic that, if it is established that the belief is very well founded, that may properly affect the weight to be attached to it. On the other hand, if it is established during the course of the trial, for example by cross-examination on behalf of an accused, that the belief is not well based, that too will affect the weight, if any, to be given to his belief – adverse in such a case – even to the extent of its being wholly disregarded, in appropriate cases.
Equally, however, the courts in the State, including this Court, must and do recognise that the invocation of privilege against the disclosure of sources upon which the belief is founded, is a significant disadvantage for the accused and his legal advisors in cases such as this. A trial court, although permitted by legislation to do so does not usually convict solely on the belief of a Chief Superintendent, and often will state this in the course of a judgment, a matter referred to in DPP v Martin Kelly, supra. The entitlement to convict solely on the belief evidence of the Chief Superintendent was recognised in this case also by counsel for the applicant, who asked the trial judges not to convict on that basis. It is clear from the judgment, although not so expressed, that the trial judges agreed it would not do so in this case either, because the trial court moved immediately to consider corroboration of the belief, it being implicit thereby that it was not convicting on that evidence alone, still less accepting that it was relying on it as being a “decisive” element leading to conviction.
Secondly, as to the allegation that the jurisprudence of the European Court of Human Rights has not been adequately considered, this Court has dealt with similar arguments in at least two other cases, DPP v Matthews, supra., and DPP v Donohue, supra.
In the first of these cases, the court stated:
      “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 actually invoked or cited. Nor is it suggested that there is other relevant case law which would in any way undermine the analysis made, or the findings in the judgment of Fennelly, J. arising from that analysis. Nor, finally, is there any suggestion that the fundamental guarantee to life found in Article 2 of the Convention, being the basis, inter alia, upon which the claim to privilege was invoked in the course of the trial, is, according to any case law of the European Court of Human Rights, to be subsumed in all circumstances to the right in an accused to cross-examine a witness in accordance with the protections accorded by Article 6 of the Convention.
      The same comments might also apply to the question of the value or evidential weight to be given to the belief evidence of a Chief Superintendent. The decision of this court on the 14th July 2006 makes it clear that the issue of the evidential value attaching to such evidence has been determined, in domestic law, for some time. It is not necessary for the purposes of this judgment to repeat what was stated in the decision. No submissions are made in this application, in support of an argument that the decision of the court in DPP v Kelly, supra. or indeed the earlier decision on that issue in O’Leary v Ireland [1993] 1 IR 102, are, in light of the case law of the European Court of Human Rights, no longer good law.”
In the second of the cases, the Court found along the same lines as the first paragraph extract above. The above findings are apt in the present case also. The applicant has established no grounds upon which the judgment of Fennelly, J. in DPP v Kelly, supra., does not correctly or accurately represent the jurisprudence of the European Court of Human Rights. This Court considers that judgment to be extremely helpful in ascertaining whether, in the trial in the present case, the learned trial judges misdirected themselves in that regard. None of the arguments put forward support the applicant’s contention that the trial judges were wrong in considering themselves bound by the decision in DPP v Martin Kelly, supra,. or in the manner in which they reached their conclusions concerning the effect of the case law of the European Court of Human Rights.
This Court is satisfied that this ground is not made out on behalf of the applicant.
3. Failure to have Reference to the Defence Tendered (Ground 5):
4. Inferences impermissibly drawn pursuant to Section 2 of the Offences Against the State (Amendment) Act 1998 and their consequences (Grounds 6 – 7):
These two grounds are interlinked, in that the criticism of the trial judge concerning the alleged failure adequately to have reference to the defence tendered is made against a background of a finding by the trial judges that his evidence on oath was not credible, or plausible, and that at least some of the answers which he gave to the gardaí in interview and similarly in court were misleading, and deliberately so.
The applicant argues that the trial Court failed to give adequate weight to the sworn evidence of the defence. In that regard Mr McGuinness points to the fact that in the first instance, the trial Court had acquitted the applicant of the offence of possession of firearms. Secondly, counsel drew the Court’s attention to the portion of the judgment where this is dealt with, but contends that the evidence given was supportive of the applicant having given a true and innocent explanation for his activities in the course of questioning. Counsel thirdly contends that the trial judges wrongly found that the responses given were false and misleading, or corroborative of the evidence otherwise given in the trial.
What the trial judges should have done, it is submitted, was to ask themselves to identify the precise inferences which they had drawn, and then determine whether that or those inferences corroborated other evidence. Further, counsel argues that the trial judges should have given themselves what is called a “Lucas direction”, the purpose of which is to get the decision makers, in this case the trial judges, to direct their minds to determining why a lie was told by a witnesses.
The respondent counters by drawing the Court’s attention to certain extracts from the transcript and from the judgment of the trial Court and argues that the trial judges were fully entitled to reach the conclusions they did on the evidence adduced. Moreover, it is submitted that the assessment of the trial judges as to the defendant’s case on oath was dependent, as they acknowledged in their judgment, on conclusions drawn from facts found. As to the question of a Lucas warning being required, the ambit of this is not yet entirely clear in Irish law. Moreover, it is not necessary, having regard to the professional composition of the trial court, to set out every warning in its judgment.
This Court is not of course engaged in determining whether it would consider, even on the same facts, that the applicant’s evidence under oath was misleading or false, or that he had failed to answer questions. What this Court has to determine is whether the evidence of the applicant under oath, including his denial of membership of the IRA, as part of his defence, was properly taken into account, and whether the trial Court could legitimately reject it. This Court is satisfied that the trial Court took into account all of the evidence tendered on behalf of the applicant, including his denial of membership on oath. Their conclusions on that evidence were nevertheless also correct in law.
As to the general objection that the trial judges failed to have sufficient regard to the defence put forward, this is not supported by the judgment nor by the transcript of the trial itself. The matters upon which the trial Court was entitled to rely in coming to its view, were all matters of fact, dependent upon the evidence given, and upon an assessment of the credibility or veracity of the applicant as a witness or an interviewee. It is abundantly clear from the judgment that in certain key respects the trial court found that the evidence of the applicant was misleading The Court, at page 14 of its judgment found as follows:
      “The prosecution asked the court to find corroboration for the belief in the answers given by the accused at interview, pursuant to the provisions of the Offences Against the State (Amendment) Act 1998 Section 2. For those purposes we have regard to Section 2(4)(B) “Failure to answer includes the giving of an answer that is false or misleading”.
      It is true that the accused answered each and every question which was put to him. However, on his own admission, during the course of interviews he remembered the telephone call from Stephen Cullen. The court finds it implausible that he was not aware of the events being inquired into in the course of the interviews. He must have been alerted by the references to a meeting at the Statoil Service Station, travelling to Usher Street flats and travelling to Ross Road. His explanation for not responding fully to the questions was that he did not wish to be involved.
      On his evidence the court is compelled to the conclusion that he was aware of the day in respect of which questions were being asked and of the events in respect of which they were being asked, but decided to give misleading answers. He did adopt a formula for dealing with questions concerning Malachy Maguire, that he did not known a Malachy Maguire. However, it is abundantly clear that even if he did not know Malachy Maguire by name, he must have known that the questions related to the man he met at the Statoil Station.
      The accused’s evidence in relation to his telephone is also implausible, to the extent that the court is satisfied that it is false. He has a single mobile telephone but apparently a number of sim cards. He himself, on his evidence, did not know the number referable to the sim card which was in the mobile phone on the 13th September 2003. Nonetheless, Stephen Cullen was able to contact him at that number. The accused, on his evidence, did not telephone Stephen Cullen, and accordingly the number could not have been made available to Stephen Cullen in that manner. The number was written on paper found in the Mercedes motor car being driven by Malachy Maguire.
      With regard to the 13th September 2003 the court finds it significant that that was a Saturday. On the accused’s evidence it was perhaps the second last Saturday on which he worked. He worked only at weekends. Questioning in the course of the interviews must, of necessity, by the references to the Statoil Service Station, the Usher Street flat complex and Ross Road, have alerted him to the events about which he was being questioned, and he indeed admitted this in evidence. Therefore, his failure to mention Stephen Cullen, his being at the Statoil Service Station, his travelling to Usher Street and onwards to Ross Road, made his answers misleading. In this we find corroboration for the evidence of belief given by Detective Chief Superintendent Kelly.
      Counsel for the accused submitted that while the court could, in this case it ought not, to convict on evidence of belief alone. However in this case the court has found corroboration in the misleading answers given by the accused at interview.”
The Court, in analysing the evidence on oath, as well as comparing this to the responses given by the applicant in the course of questioning by the gardaí pursuant to Section 2 of the above Act, came to the view, as it was entitled to, on the facts, that the above evidence given in court by the applicant, as well as his answers, were not persuasive, and indeed were misleading or even false.
These were findings well within the competence of the trial Court, and were based on evidence tendered inter alia by the applicant himself, upon which the trial Court was fully entitled to rely. The Court can find no basis upon which this ground can succeed. It was not necessary for the trial court to proceed to state specifically that, in consequence, his denial under oath had little value. The applicant’s main defences, apart from his statement or his evidence denying membership of the IRA, were all or almost all rejected by the trial judges. They were entitled to do so for the clear reasons given.
Secondly, and turning to the objection raised that this evidence was found to be capable of corroborating the belief evidence of the Chief Superintendent, all the evidence concerned the question of membership of the IRA. Pursuant to the provisions of Section 2 of the Offences Against the State Act (Amendment) Act 1998, the answers given by an interviewee to garda questions concerning or material to membership of an unlawful organisation such as the IRA, may have a particular significance in the course of a trial of this nature, in that a court may draw inferences from the failure to answer such question, and the failure may also be treated in appropriate circumstances, as corroboration of other evidence in relation to the offence. A failure to answer, according to the Act of 1998 includes “giving an answer that is false or misleading”. However a person may not be convicted solely on the basis of inferences drawn from a failure to reply to material questions.
The above recital of the responses of the applicant to material questions concerning such membership, which together with his evidence under oath the trial court found to be implausible, even false and deliberately so, constituted a wholly adequate basis upon which to find, at least implicitly, corroboration of the belief evidence of the Chief Superintendent. There was ample evidence before the trial Court upon which to reach the conclusions it did in respect of his evidence, and the answers he gave in interviews, and the trial court’s conclusion was well within jurisdiction. It is sufficient to refer to two examples found to be implausible or false. Firstly, it was contended by the applicant that he had failed to answer certain questions concerning his mobile phone because he was, at the time, having an affair. This was allegedly to explain the existence of one mobile phone, of which he said he did not know the number, but for which he had several different sim cards, each with different numbers. Whatever about having one additional sim card to the original for the alleged reason given, it would difficult to criticise the trial court for not being persuaded that this was the genuine reason for the existence of several sim cards, in respect of which he claimed to know none of the numbers, even that required to contact the party with whom he was allegedly having an affair. Another example concerns the finding of the trial court that the alleged contact made with him by a named friend - not previously identified by him in the course of interview with the gardai - by telephone, was implausible at the very least, since the evidence established that the applicant had not contacted the friend by phone, and the applicant claimed not even to know his own number, yet Mr. Cullen was allegedly able to contact him.
There is no valid basis upon which to conclude that the trial judges failed adequately to consider the defence case put forward, or in any way improperly rejected, or wrongly found that the belief of the Chief Superintendent was sufficiently corroborated by the applicant’s own evidence.
As to the Lucas warning ground, while it is true that requisitions are not within the scheme of things in the Special Criminal Court, it is not the case that the requirement to give a Lucas type warning to themselves, if it be thought necessary or proper in a given trial, cannot be brought to the attention of that court, a matter which could readily be done in the course of final submissions of counsel on behalf of the party invoking it, in precisely the same way as counsel invokes any other legal principle or rule of law thought to be appropriate. It was clear that the evidence of the applicant on oath differed to his answers to questions in interview, and it was equally clear that, if it was desired to invoke the warning, in relation to certain untruthful answers given, there was nothing to inhibit this. There is no reason why the principles found in the case of DPP v Cronin (2006) 3 I. R. 213 to a ground such as this, not brought to the attention of the trial court, although possible to do so, and where no legitimate basis is given for the failure to do so also in this case.
However, even if the applicant could invoke the exceptions established to the application of the principle in R v Cronin, supra., the Court rejects the suggestion that the judgment of the trial judges was deficient in any way by reason of the trial judges failing to consider and apply to itself, a Lucas type warning, even if were to be assumed that they were obliged to do so, or if they did consider a Lucas type warning, for failing to declare in the judgment that they had done so – a matter on which the Court in this case expresses no concluded view, it not being necessary to do so.
In light of the foregoing, the court is satisfied that there was adequate evidence before the trial court, properly assessed, upon which to convict the applicant of the offence charged. This application is therefore refused.

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