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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Brian Meehan  IECCA 104 (24 July 2006)
Cite as:  IECCA 104,  3 IR 468
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Title: D.P.P.-v- Brian
Composition of Court: Kearns J., Budd J., deValera J.
Judgment by: Kearns J.
Status of Judgment: Approved
Outcome: Refuse application
THE COURT OF CRIMINAL APPEALKearns J.
de Valera J.
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT delivered by Kearns J. on the 24th day of July, 2006
On the 29th July, 1999, the applicant was convicted by the Special Criminal Court after a trial which commenced on the 2nd June, 1999 and which continued for 31 days. On count 1, the applicant was convicted of the murder of journalist Veronica Guerin on the 26th June, 1996. On counts 2-6, the applicant was convicted of the unlawful importation of a controlled drug on dates between the 1st July, 1994 and the 6th October, 1996. He was further convicted on counts 7-10 and on count 12 with possession of a controlled drug for the purpose of selling or otherwise supplying it to another. He was acquitted of charges of possession or control of firearms or ammunition with personal intention to endanger life. He was, however, convicted of a charge of possession or control of firearms or ammunition to enable others to endanger life. He was further convicted on counts 17 and 18 of the possession and control of firearms or ammunition in circumstances that he did not have them in his possession or under his control for a lawful purpose.
The court sentenced the applicant to a mandatory life sentence in respect of the conviction for murder. He was further sentenced in respect of the convictions for the drugs and firearms offences. The applicant now appeals to this Court against the refusal of the Special Criminal Court to grant leave to appeal against conviction and sentence on various grounds.
The delay in bringing this appeal on for hearing was undoubtedly connected with the various appeals brought by John Gilligan, the leader of the criminal group of which the applicant was a member, whose final appeal in respect of his convictions was rejected by the Supreme Court in a judgment delivered on the 23rd November, 2005.
While extensive grounds of
appeal were lodged in this matter, the appeal before this Court was
narrowly focused. As argued, the grounds of appeal transpired to
It is apparent that there is a considerable overlap between the first and third grounds of appeal, but, as was indicated by Patrick Gageby, senior counsel for the applicant, the outcome of this appeal turns essentially on the view of this Court as to the safety of a conviction procured mainly by the evidence of an accomplice in circumstances where it is submitted that the evidence of such an accomplice is not adequately corroborated in accordance with the requirements of Irish law.
The evidence of Russell Warren
Russell Warren gave evidence that he entered a Witness Security Programme in April, 1999. He had pleaded guilty to various drug related offences before the Circuit Court in November, 1997, in respect of which a sentence of five years was imposed on each of 16 charges. A sum of £56,000 and stg£7,000, deemed to be the proceeds of drug trafficking, were also declared forfeit from him on that date.
Russell Warren gave evidence that his initial involvement in the criminal gang led by John Gilligan involved delivering contraband cigarettes from Belgium and Holland. He delivered these goods to the applicant’s flat at Clifton Court on a monthly basis from mid-June 1995 to Christmas 1995. When the cigarette shipments ceased, his work became the collection of money due for drug deliveries both in Ireland and in Belgium, the counting and changing of money in those countries and other travel for the purpose of laundering same on behalf of John Gilligan. Most of the overseas trips were through Amsterdam Airport. He gave evidence that he collected monies from the applicant, from Peter Mitchell, Paul Ward and Patrick Holland, all members of John Gilligan’s criminal gang. This money was from the sale in Ireland of illegally imported drugs. The money being brought out of the country could range from £100,000 to £250,000, though sometimes it would be more. These activities continued up to the time of his arrest in October, 1996.
Having identified the applicant in court, Russell Warren gave evidence that he and a friend called Paul Cradden stole a 500 cc motorbike in Dun Laoghaire from a Mr. Ian Keith in May, 1996. The bike was brought to a garage owned by Stephen McGrath at St. Enda’s Road in Terenure and was kept there. This garage was accessible through McGrath’s house. Russell Warren stated that he had intended selling the bike, but had it on his hands for a number of weeks during which time he met John Gilligan and spoke of having the bike in his possession. Gilligan told him he might need the bike and to “hang onto it”. He recalled going down to the Terenure House car park by arrangement to meet Brian Meehan and John Gilligan about one week before the murder. He brought the two men to the garage where the motorbike was kept and they gave it a full inspection. Gilligan and the applicant noticed there were indicators missing and no number plate. John Gilligan told Warren to put the motorbike in a roadworthy condition. The applicant said he would come back down to test the bike when that had been done. When driving the two men away from the location, Russell Warren stated that John Gilligan threatened to kill him if he made any statements against him. The applicant remained silent when this threat was made .
Thereafter, Warren made the motorbike serviceable. In court he gave evidence of the work carried out. He also gave evidence of the registration number and identified the motorbike as that retrieved in a broken down state from the Liffey in the aftermath of the killing.
Having completed the repairs, he so advised John Gilligan who told him that the applicant would test drive the bike. On the Tuesday before the murder the applicant came with Peter Mitchell to the garage for that purpose. He sat on the bike and then took it for a ten minute test drive. Having returned on the motor bike, he said it was running OK but asked that the petrol cap be fixed as there was an escape of petrol from the tank. He asked Russell Warren if he knew Veronica Guerin whose physical appearance he described in detail to Warren. Warren stated that he did not know her. He stated that at that time he was unaware that there was “something going on” between John Gilligan and Veronica Guerin and said that this had not been explained to him. When leaving, the applicant told Warren he would return the following morning to pick up the bike. The following morning, the day of the killing, the applicant rang and told Warren he would meet him at the garage in Terenure. He rang again to say he would be delayed. He came at about 9.45, looked at the bike and said he would collect it later. At this time the applicant asked Warren to go to Naas saying that John Gilligan wanted him to do so. Warren assumed it had something to do with the bike. There were a number of phone calls between John Gilligan and Russell Warren during that day. Gilligan also instructed him to go to Naas. The applicant told him he was to look out for a red Opel sports car with a particular registration number in the vicinity of the Naas Courthouse. The moment he saw the sports car he was to ring the applicant and let him know in which direction the car was heading and he was also to ring John Gilligan.
Russell Warren gave evidence of his own mobile telephone number and stated he had procured the telephone in his father’s name.
Having driven to Naas, he at first mistook the Social Welfare Office for the Courthouse. A garda then pointed him in the direction of the Courthouse where he saw a traffic warden who started to write down details of his vehicle which had no tax. He moved the vehicle around the corner to a parking space and made his way to the vicinity of the Courthouse on foot.
He received a number of calls from John Gilligan asking where the car was but he had not as yet found it. However, he did at some point see the red sports car emerge from between two pillars by the Courthouse. He contacted the applicant who told him that this was the car he was looking for and to follow it. He ran back to where he had parked his van and set out in pursuit. As he was passing the Airmotive factory near the end of the Naas dual carriageway he got a call from the applicant during which the applicant stated “I see it” to the witness. Warren described hearing the noise and interference of the motor bike engine in the background while having this conversation with the applicant.
Warren described how he was a couple of cars back from the red car and in the same lane. He observed the bike which he had stolen pass him by and come to traffic lights which were red. He then saw the person on the back of the bike fire shots into the red sports car. Warren stated that he was shocked. He saw a gap in the traffic and drove across the laneway. There was a “School of Motoring” lorry blocking his way which eventually moved so that he could drive on and pull in at the end of Boot Road. He then rang John Gilligan and told him “they were after shooting somebody”. He asked Gilligan who it was to which Gilligan replied “it does not matter”. Gilligan warned him to say nothing or the same would happen to him. In driving away, Warren stated he had to pull up because he was physically sick.
Warren was first arrested on 30th September, 1996. He admitted he had made a number of statements to the gardaí but had not told the full truth in some of them. He admitted he continued to act on behalf of John Gilligan and his gang in the aftermath of the killing as a bagman and occasional chauffeur. He was the counter of money and had enlisted the support of his family in counting huge quantities of money at different times. He met Charles Bowden only once.
He further gave evidence that in the aftermath of the murder the applicant arranged for the disposal of the motorbike. John Gilligan had phoned him on the afternoon of the murder telling Warren that the applicant would break up and burn the bike. When he spoke to the applicant that same day explaining precisely what Gilligan wanted done with the bike, the applicant said he, the applicant, was looking after that himself. Following his first arrest in September, the applicant showed a keen interest in what he, Warren, might have said to the police. Gilligan required him to go to England for a ‘debriefing’ session. A substantial sum of money had been found in his parent’s house by the police.
In cross-examination, it was put to Russell Warren that he was not in Naas on the day of the killing, though it was not challenged that he had witnessed the murder of Veronica Guerin on the Naas Road. Significantly, it was also put to Warren that there was no telephone contact between himself and the applicant on the day of the killing (Day 19/ p. 126).
In dealing with the evidence of Russell Warren the court specifically noted that he was an accomplice who had subscribed to a Witness Protection Scheme and who had furthermore received a payback of £7,000 refunded to him which had earlier been confiscated by the gardai. The court noted that he had received or expected to receive additional rewards. The court noted that his account had been “heavily challenged and criticised” and noted, in particular, the suggestion that he had lied to the court by not disclosing that in fact the motorcycle was stolen at Mr. Gilligan’s express orders or request. The court noted suggestions that Warren was dishonestly “playing the innocent” in that he knew perfectly well there was a plan which had been made by the drug distribution gang to murder Ms. Guerin. The court noted further that he was challenged on the basis of never having been in Naas on the particular day, that he had originally given the gardai a different account of events and was only now furnishing this version of events in the hope of achieving rewards. It was further suggested that he had tried to dovetail his account of events with the account furnished by Charles Bowden, another accomplice who had turned State evidence and with whom he was at the time of trial incarcerated in Arbour Hill Prison.
Noting that he was an accomplice, the court expressed its concern to ensure that his evidence was approached “with caution and reserve”. At an earlier point in its judgment, the court noted that, in considering the evidence of accomplices, it must bear in mind the warning identified in R v Baskerville  2 K.B. 663. The court specifically stated that it was bearing in mind “all the dangers associated with such evidence” (at p.4 of the judgment).
Having given itself this warning, the court proceeded to disallow the evidence of another accomplice, Charles Bowden given in relation to count no.1 (i.e. the murder charge) but allowed it and acted upon it in relation to the drugs and firearms offences. It further declined to explicitly accept any evidence given by Juliet Bowden in relation to count no.1. The court similarly declined to act on the evidence of Julian Clohessy, who, while not an accomplice, was treated with particular caution by the court because of his close association with the other witnesses who were accomplices. It is to this particular witness that the applicant is alleged to have made the admission “I was there” in the context of the killing of Veronica Guerin. For the reasons outlined in the judgment, however, the court declined to accept this evidence as an admission by the applicant.
While acknowledging that certain criticisms of Russell Warren might well be valid “and if so give additional reason to approach this witness’s evidence with caution” the court identified two pieces of evidence in the trial, one of which was stated to be “extremely supportive” of Warren’s evidence and the other corroborative of it. The first was the evidence of Mrs. Marion Finnegan who observed a man dressed in a green jacket with a shirt collar out over the revers of his jacket carrying a mobile phone in the town of Naas on the morning of the 26th June, 1996. She observed his conduct on the occasion and observed him peering around the corner of the street in the direction of the courthouse and using his mobile phone. The Special Criminal Court was satisfied beyond all reasonable doubt that the person that she saw was Russell Warren. The court found that the evidence which Warren had given to the court of what he did when in Naas fitted in precisely with the evidence which Mrs. Finnegan gave in the sense that on seeing the red sports car he made the telephone call and then went back to the van which he had parked on the Newbridge Road. The court concluded it was beyond the realms of coincidence that there would have been two people in the Main Street in Naas at this very time behaving in precisely this manner.
The court then found that the evidence of telephone traffic between Russell Warren and the applicant on the morning in question “corroborated” the evidence of Russell Warren “in all material particulars”.
The court stated:-
The Court accordingly accepts Russell Warren’s evidence that the accused inspected the motor cycle, directed repairs and renovations to be carried out, later road tested the motor cycle, returned to collect the motor cycle on the morning of the 26th June, 1996, directed Russell Warren to go to Naas and to look out for the red sports car, to report when he saw it and when he did to follow it and report where they were on the Naas road. The Court is satisfied that during these phone calls or some of them the accused used a hand free facility for his mobile phone and as a result was heard to be travelling on a motor cycle. The Court is satisfied that the accused subsequently agreed to dispose of the motorcycle.
The Court is satisfied that this evidence leads to only one conclusion namely that the accused was a fundamental part of the conspiracy or plot to murder Veronica Guerin, that he participated fully in the event.
The Court accordingly finds the accused guilty on Count No.1.”
Objections to admissibility of telephone traffic evidence
During the course of the trial (on Day 27), the Special Criminal Court ruled on the admissibility into evidence of a computer printout of telephone traffic between the mobile telephones habitually used by the applicant, Russell Warren and John Gilligan. The computer printouts recorded the times at which each telephone was used on the day of the murder, the number dialled, the duration of the call, the price of the call and the break code. The printouts also contained a record of the name of the subscriber and the number allocated to him. It was this last element which gave rise to objection by counsel for the applicant who did so on the basis that the information as to the subscriber particulars had been fed into the computer by human intervention thus rendering the entire printout from the computer inadmissible.
The Special Criminal Court in its ruling on this issue noted that on the 6th May, 1994, the applicant applied for an upgrade from an analog phone to a GSM phone. He had completed the appropriate documentation in the presence of David Cox who knew him and identified him and who gave evidence to that effect. David Cox approved the application for the particular phone and also the number which was allocated to the applicant. On completion of the application form by the applicant, the same was transmitted by David Cox to Eircell where the name and number thus allocated were entered on the company computer.
Insofar as Russell Warren was concerned, the court received evidence from both Richard Shannon and Russell Warren himself that he applied for and obtained a mobile phone in the name of his father, Patrick Warren and that he was allocated a particular number. Russell Warren himself identified the application form which he completed on this occasion in the name of his father. The court was also satisfied that this form was transmitted to Eircell and was entered on the company’s computer.
On 21st March, 1996, a person representing himself as Seamus Dunne applied for a mobile telephone to Mr. Richard Shannon, an agent for Eircell, and was allocated a particular number. Seamus Dunne was unknown to Mr. Shannon. The court was satisfied that this application form was also transmitted to Eircell and that the name and number which had been allocated were entered on the company computer. Paul Williams and Liz Allen, both journalists, gave evidence that John Gilligan habitually used this telephone.
The court was satisfied that a completely mechanical process then took over resulting in the printout of the documentation to which objection is taken. Insofar as this appeal is concerned, there has been no objection maintained as to the accuracy of the automated recording or billing system, in respect of which Kevin Dowling, an engineer, and Brendan Moran, a systems analyst, gave evidence at trial. No objection is now maintained in respect of the evidence of Jim Faughnan in relation to the extraction of the information from the computer records. The process of procurement of this information was further dealt with in the evidence of Assistant Commissioner Tony Hickey, former Chief Superintendent Michael Diffney and Det. Sgt. Michael Clifford. The defence objection is now effectively confined to the inputting of the subscriber name and telephone number to the computer system. In this regard it was submitted on behalf of the applicant that the prosecution was not entitled to lead evidence of telephone traffic without satisfying the criteria of the provisions of s.5 of The Criminal Evidence Act, 1992, which provides as follows:-
( b ) was supplied by a person (whether or not he so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and
( c ) in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.”
The Special Criminal Court did not accept as valid the submission the contention that the inclusion of the word “shall” in s.5 of the Act of 1992, had the effect of excluding evidence of this nature unless it complies with the provisions of the Act. The submission, if correct, would mean that any common law rules as to admissibility of documents in criminal proceedings were thereby abolished. The Special Criminal Court expressly approved a decision of Carney J. in DPP v. Francis McCann (Unreported, Transcript Reference: 31st July, 1996) in which he stated;-
There can be no longer any debate as to whether a recording which is produced mechanically without human intervention is admissible in evidence. Authority for this proposition may be found in cases such as the Sapporu Maru (Owners) v. Statue of Liberty (Owners);The Statue of Liberty  1 W.L.R. 739, R v. Wood  76 Cr. App. Rep 23 and Castle v. Cross  1 All E.R. 87.
Such evidence is real evidence. Thus, in R v. Spiby 91 Cr. App. Rep 186, the printout from a computerised machine was used to monitor telephone calls. It automatically recorded information such as the numbers to which the calls were made and the duration of the calls. This was admitted as real evidence. It was held that where information is recorded by mechanical means without the intervention of human mind the record made by the machine is admissible.
Such authorities must be read subject to the decision in R v. Cochrane  Crim LR 48, in which it was held by the Court of Appeal that before the judge can decide whether computer printouts are admissible, whether as real evidence or as hearsay, it is necessary to call appropriate authoritative evidence to describe the function and operation of the computer.
The Court is of the view that the Special Criminal Court ruled correctly on this matter. In the case of each of the three persons, there was direct evidence available to prove the subscriber name and relevant number and the identity of the actual user of the particular telephone. This evidence has been alluded to earlier. Additionally, however, in the case of the applicant, Garda Corcoran gave evidence that the applicant had himself written down his number on a piece of paper (i.e. his mobile telephone number: 087 590045) and had given it to him. (Day 21/Q464). This, of course, was in addition to the evidence of David Cox. When the telephone numbers on the computer printout were checked against the names who had registered each of the telephone numbers the identity of the users of each of the mobile phones was established clearly from the direct evidence which had been given by the various witnesses identified by the court.
The facts of this case make it clearly distinguishable, therefore, from the decision in R v. Coventry Justices, ex-parte Bullard & another  95 Cr. App. Rep 175, in which the critical inputs into the computer had been of information either wholly or in part implanted by human agency and were thus inadmissible in evidence. The information showing the amount of the arrears due in respect of community charges had been inputted by a person so that the printout in such circumstances was tantamount to a statement made by the person who fed the data into the machine. Equally, the Court is satisfied that the present case may be distinguished from the decision of the House of Lords in Myers v. DPP  AC 1001, a case in which the House was concerned with the admissibility of the contents of record cards which had been made up by workmen during their assembly of motor cars. Lord Reid stated at p.1019:-
Turning now to the telephone traffic itself, it is clear that these three men were in constant contact throughout the course of the day of the murder. It should be borne in mind in this context that John Gilligan was in Amsterdam on the day in question. No suggestion or explanation was ever offered to indicate why the urgent pattern of telephone calls, involving the leader of the group in which Warren and the applicant were both members might have been necessary, notably when John Gilligan was away, other than that offered by Russell Warren. This is the pattern of telephone calls as it emerged from the evidence:-
9.13: Brian Meehan to Russell Warren 9 seconds.
9.30: Brian Meehan to Russell Warren 13 seconds.
9.55: Brian Meehan to Russell Warren 27 seconds.
9.59: Brian Meehan to Russell Warren 13 seconds.
10.06: Russell Warren to Brian Meehan 12 seconds.
10.19: Brian Meehan to Russell Warren 38 seconds.
10.40: Brian Meehan to Russell Warren 21 seconds.
10.48: Russell Warren to Brian Meehan 32 seconds.
11.01: John Gilligan to Russell Warren 20 seconds.
11.10: Russell Warren to Brian Meehan 46 seconds.
11.18: Russell Warren to John Gilligan 46 seconds.
11.45: John Gilligan to Russell Warren 47 seconds.
11.54: Russell Warren to Brian Meehan 13 seconds.
12.02: John Gilligan to Russell Warren 39 seconds.
12.48: Brian Meehan to Russell Warren 20 seconds.
12.54: Veronica Guerin’s last phone call (interrupted).
13.23: Brian Meehan to Russell Warren 35 seconds.
13.29: John Gilligan to Brian Meehan 64 seconds.
13.36: John Gilligan to Russell Warren 21 seconds.
13.49: Russell Warren to Brian Meehan 56 seconds.
13.50: John Gilligan to Russell Warren 20 seconds.
14.16: John Gilligan to Russell Warren 60 seconds.
14.31: John Gilligan to Russell Warren 16 seconds.
14.46: John Gilligan to Russell Warren 87 seconds.
15.09: Brian Meehan to John Gilligan 38 seconds.
15.38: John Gilligan to Russell Warren 21 seconds.
20.58: Russell Warren to John Gilligan 3 minutes and 40 seconds.
22.32: Russell Warren to John Gilligan 21 seconds.”
Perhaps the most important thing that must first be said about corroboration is that it is not a prerequisite to a conviction where the main evidence against an accused is that of an accomplice. It is a corroboration warning, not corroboration, which is the mandatory requirement. While a warning about the dangers of convicting without corroboration must be given in such cases, the evidence of an accomplice alone is admissible and is sufficient to ground a conviction whether that evidence is corroborated by other evidence or not. In Dental Board v. O’Callaghan  I.R. 181 at 184, Butler J. gave a clear exposition of this basic proposition in stating:-
Before considering that and other cases, it is essential to consider the basic principles which historically have given rise to a requirement that the evidence of an accomplice be supported or confirmed by independent evidence. There can be no doubt but that the entire purpose of corroboration is to reassure a jury or court that potentially suspect evidence, such as that of an accomplice, is both credible and reliable. It must therefore be borne in mind that the ultimate goal of judicial endeavour in this area is to ensure that there are appropriate legal principles to indicate how that goal may be achieved. This is more important than arriving for its own sake at any permanently fixed definition of the term ‘corroboration’. As pointed out by Lord Pearson in D.P.P. v. Hester  A.C. 296 at 321:-
At common law the risk of unreliability was dealt with in different ways according to its cause. The more draconian way was to classify the witness as incompetent to give evidence in the proceedings at all. Until the Evidence Act 1843, persons who had a proprietary or pecuniary interest in the outcome of civil or criminal proceedings were incompetent witnesses in those proceedings. So in civil proceedings were the parties and their spouses until the Evidence Act 1851, and the incompetence of the accused to give evidence in criminal proceedings against him continued until it was at last removed by the Criminal Evidence Act 1898.”
In Sheehan, the Court split six to five on this issue. A minority of the judges were of the opinion that ‘generally speaking a corroboration of the circumstances of the crime charged, though entirely unaccompanied by any circumstance applicable to the prisoner on trial, or to any other person charged by the accomplice, was a substantial corroboration, fit to be examined and weighed’. However, a majority of the Court took the view that ‘the accomplice being supported in his narrative of the transaction only, without corroboration as to any person charged, was so slight a confirmation, as to be entitled to very little, if any, attention, and that a jury should generally be so told.’ The majority opted for the stricter approach because the accomplice was ex concesso involved in the crime and knew all the facts. Therefore, confirmation that he was telling the truth with regard to the facts of the commission of the offence did not lead to the inference that he was telling the truth with regard to the persons taking part in it.”
The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.”
The rigid approach evident in Baskerville was softened by two later decisions of the House of Lords in DPP v Hester  A.C. 296 and DPP v Kilbourne  A.C. 729. In the former Lord Diplock emphasised, as already noted, that the ordinary sense in which the verb ‘corroborate’ is used in the English language is the equivalent of ‘confirmed’, adding at p.325:-
He continued as follows at pp. 328-329:-
“My Lords, to incorporate in the summing-up a general disquisition on the law of corroboration in the sort of language used by lawyers, may make the summing-up immune to appeal on a point of law, but it is calculated to confuse a jury of laymen and, if it does not pass so far over their heads that when they reach the jury room they simply rely on their native common sense, may, I believe, as respects the weight to be attached to evidence requiring corroboration, have the contrary effect to a sensible warning couched in ordinary language directed to the facts of the particular case”.
Further afield in Canada, the Supreme Court of Canada decided in Vetrovec v The Queen  1 S.C.R. 811, a case referred to in the extract from Mr. McGrath’s book which was lodged with the respondent’s submissions, that the English law on corroboration at that point in time was unnecessarily complex and technical and concluded that there should be no special category of accomplices. The court noted that while the testimony of some accomplices may be untrustworthy, the same could also be said of many other categories of witness and that there was nothing inherent in the evidence of an accomplice which automatically renders it untrustworthy. The court was of the view that to construct a universal rule singling out accomplices is to fasten upon this branch of the law a “blind and empty formalism”. Rather than attempting to pigeon-hole a witness into the accomplice category, the trial judge should direct his mind to all factors which might impair the worth of a witness, and if, in his judgment, the credit of the witness is such that the jury should be cautioned, the trial judge may then issue a clear and sharp warning to attract the jury’s attention to the risks of adopting, without more, the evidence of the witness (now known in Canada as “the Vetrovec warning”).
Of particular relevance to the current discussion was the finding of the court in Vetrovec that the fact that some of the corroboration evidence in the case did not directly relate to overt acts testified to by the accomplice was “irrelevant” – such evidence was capable of inducing a rational belief that the accomplice was telling the truth.
In the course of his judgment delivered on behalf of the court, Dickson J indicated a clear preference for what he referred to as the “common sense” approach originally followed in England prior to Baskerville, citing with approval the passage in Trial of William Davidson and Richard Tidd for High Treason  33 How. St. Tr. 1338 in which Baron Garrow instructed the jury as follows, at p.1483:-
The second difficulty associated with the Baskerville decision is related to the first. Once it is decided that corroboration is a legal term of art, the law in the area becomes increasingly complex and technical. It immediately becomes necessary for the trial judge to define for the jury the legal meaning of corroboration. Moreover, the issue of whether there is any evidence which may be corroborative, according to that definition, becomes a matter of law. The trial judge must therefore examine the evidence to determine that question… numerous technical appeals are taken on the issue of whether a particular item of evidence is ‘capable’ of constituting corroboration. The body of case law is so complex that it has in turn produced a massive periodical literature (See bibliography in Wakeling, Corroboration in Canadian Law, 1977, at pp.149-51). …The result is that what was originally a simple, common sense proposition – an accomplice’s testimony should be viewed with caution – becomes transformed into a difficult and highly technical area of law. Whether this ‘enormous superstructure’ (to use the description of the Law Reform Commission) has any meaningful relationship with the task performed by the jury is unknown.
The third and perhaps most serious difficulty associated with the Baskerville definition is that the definition itself seems unsound in principle. Prior to the judgment of Lord Reading, there had been controversy over whether corroborative evidence must implicate the accused, or whether it was sufficient if it simply strengthened the credibility of the accomplice. Lord Reading settled the controversy in favour of the former view.
With great respect, on principle Lord Reading’s approach seems perhaps overcautious. The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. This is because, as Wigmore said, the matter of credibility is an entire thing, not a separable one:-
The principles laid down in Vetrovec v The Queen  1 S.C.R. 811 were later considered and applied by the Canadian Supreme Court in R. v Kehler  1 S.C.R. 328 in which the only evidence linking an accused to a particular crime was the evidence of an accomplice. The trial judge had looked for corroboration and acted on independent evidence which confirmed the account of the robbery and the witness’s involvement in it, but did not implicate the accused. Both the Court of Appeal and Supreme Court decided the trial judge had committed no error warranting appellate intervention and dismissed the appeal.
Corroboration has received definitions and characterisations in Ireland which largely follow Baskerville, but which are replete with nuanced differences. In The People (A.G.) v. Levison  I.R. 158, O’Byrne J. stated at p. 165:-
Corroboration as it has been defined and applied in this jurisdiction, does not have to directly prove that the offence was committed. It is sufficient if it confirms a material particular of the witness’s evidence implicating the accused. This Court in The People (DPP) v Murphy  2 I.R.125 (at 159) approved as correct the reference to corroboration as it appears in Criminal Evidence (2nd ed.) by Richard May at 330:-
Equally in A.G. v. McGrath (Unreported, Court of Criminal Appeal, June 15, 1925) a sister of a complainant deposed that the complainant returned home on the day of an alleged indecent assault carrying in her hand a small toy bird. The complainant’s mother and sister knew the toy bird to be an ornament which had stood on a cabinet in the accused’s room. The possession of the bird could prove no more than the fact either that the accused had given it to the complainant or that the complainant was in his room. Nevertheless, it was a material circumstance linking the accused to the commission of the offence independent of the evidence in respect of which corroboration was required.
In the People (A.G.) v Levison  I.R. 158, the case made by the accused was that having seen the complainant in April, 1931, when he was alleged to have procured a miscarriage, he never saw her again until October, 1931, and knew nothing of her history in the meantime. Nevertheless it appeared from his own evidence that when he saw her, and before she had communicated her history to him, he asked her was she pregnant again. The court was satisfied to hold that the asking of this question implied on the part of the accused a knowledge that the pregnancy of April had come to an unnatural end and, having regard to the case made by the accused, would tend to establish guilty knowledge on his part. From that one question, the Court of Criminal Appeal was satisfied that the jury had before them evidence from the accused himself on the material circumstance tending to implicate the accused in the offence charged which would, in the opinion of the court, constitute some corroboration of the complainant’s evidence.
These Irish cases would support a nuanced interpretation of Baskerville, at least as to the nature and extent of the requirements of law where corroboration is concerned. Further inroads into the requirement for corroboration have also been made by statute, notably by s. 7 of the Criminal Law (Rape)(Amendment) Act, 1990 in the case of sexual offences and by s. 28 of the Criminal Evidence Act, 1992 in the case of children.
It follows from the foregoing, that each case has to depend partly on established legal principles, partly on the manner in which the case is run, the nature of the facts in issue in respect of which corroboration is desirable or necessary and the nature of the defence. In O’Sullivan it might have been possible for the boy to know of the boxes by reason of an innocent visit. In McGrath it might have been possible for the girl to have had possession of the toy bird by reason of an innocent present and in Levison it might have been possible for a question to be asked as to an earlier pregnancy, not on the basis of implication in an illegal abortion, but on the basis of a friendship. Similarly, distress following a rape can be construed as distress in the context of regret at a decision to consent to sexual intercourse. However, all of these facts can constitute corroboration because they can properly be seen by a jury as providing independent testimony which tends to implicate the accused in a material particular in the commission of the crime.
In recent years the courts have shown themselves more prepared, at least in sexual offence cases, to evaluate various evidential facts cumulatively as partial or complete corroboration of a complainant’s account, even where the corroborative value of each established fact is low.
Thus in The People (D.P.P.) v. Reid  2 I.R. 186 (CCA) the Court identified as potential corroboration of the complainant’s testimony the state of her genitalia, the high volume of the accused’s television set at the time of the alleged offence, and the distressed state of the complainant observed by her parents in the aftermath. In delivering judgment, the Court focused on the “concurring circumstances which give greater probability to the evidence of the prosecutrix”. In The People (D.P.P.) v. Murphy (Unreported, Court of Criminal Appeal, 3 November, 1997) the Court considered that evidence that the accused’s trousers had been dirtied to be potentially corroborative of the complainant’s allegation that a fracas had taken place on the way home from a disco. In The People (D.P.P.) v. C.  3 I.R. 345 (CCA), Murray J. observed at p.362:-
Most recently in delivering the judgment of the Supreme Court in Director of Public Prosecutions v. Gilligan (Unreported, Supreme Court, 23 November, 2005), Denham J. stated as follows at pp. 49-50:-
In this case the trial court dealt expressly with the circumstances, including that witnesses were both accomplices and in a Witness Protection Programme. While the trier of fact may convict, after the appropriate warning, on the evidence of such a witness, it is open to the trier of fact to require corroboration of the witnesses’ evidence, as did the trial court in this case.
These multiple factors go to the issues of credibility and to the weight to be attached to the evidence. Thus they should be assessed in light of all the circumstances of the case. However, it is open to the trier of fact to determine that in spite of these multiple factors the credibility of a witness is such the corroboration is not required and that significant weight may be given to his evidence.
The multiple factors are matters for the trial court to assess and determine having heard all the evidence in the case, both in the giving of the appropriate warning by the trial judge and in the determining of the facts of the case by the jury, or the court.
In this case it is clear from the judgment that the trial court was aware of the dangers of convicting on evidence from a person who was both in a Witness Protection Programme and who was an accomplice. The trial court referred repeatedly to compromising facts and regarded the evidence cautiously. It took a different view in its assessment of different witnesses. This illustrates that the application of the law as to corroboration is quintessentially a matter for the trier of fact after the appropriate warning is given.”
Any re-evaluation of Baskerville, which is surely overdue, would have to acknowledge that the world described by Denham J. in her conclusions in Gilligan is one which is light years away from that which existed when the English Court of Criminal Appeal decided Baskerville in 1916. Modern Ireland is awash with illegal drugs and beset with the enormous social problems which attend their use. Gangland killings in connection with that trade have virtually become a daily occurrence. A Witness Protection Scheme may well provide one of the few effective ways of dealing with these activities, a consideration which must be kept in mind if the community’s right to see serious crime being prosecuted is to be respected. Evidence emanating from witnesses in such a programme is not automatically to be scorned or discounted. It is, and will always be, evidence which must be treated with caution. However, if and when satisfied in a particular case that it is credible, a court should be free to act on it. This Court is of the view that a more flexible approach to the whole issue of corroboration beyond the narrow formalistic definition of R. v. Baskerville is entirely open on the decided cases in this jurisdiction and in the particular circumstances adverted to by Denham J. in the passages just quoted. The views of the Supreme Court in DPP v Gilligan do, in the opinion of this court, permit such an approach. The review of cases demonstrates that the application of Baskerville in Ireland has over the years been of a flexible and nuanced nature. The Court believes in any event that the formula of words adopted in Baskerville to define corroboration, including as it does the words “tending to connect him with the crime”, leaves a considerable margin of discretion with any court dealing with issues of corroboration to decide what may or may not constitute corroboration. As noted in A.G. v O’Sullivan by O’Byrne J., it is for the court of trial to determine in the particular context, including the conduct of the defence, what may constitute corroboration.
In this case the Special Criminal Court took great care to carefully differentiate and evaluate the evidence given by the different witnesses in this case. The particular findings in relation to Charles Bowden, Julian Clohessy and Juliette Bowden are clear examples of how the self warning about suspect witnesses was actually implemented by the Special Criminal Court in the course of the judgment. The court rejected the evidence of these witnesses on the murder count in the light of that warning.
However this Court believes that the Special Criminal Court was entitled to conclude and hold that the telephone traffic constituted corroborative evidence in respect of the evidence given by Russell Warren. While the telephone traffic of itself is incapable of corroborating beyond reasonable doubt every particular of the account furnished by Russell Warren, the Court is nonetheless satisfied that it does so in many critical particulars, notably in respect of times, and constitutes an independent body of strong supporting evidence “tending to connect” the applicant with the killing. It must be remembered that the cross-examination of Russell Warren proceeded on the basis that there was no contact whatsoever between Brian Meehan and Russell Warren on the day of the killing. An analysis of the telephone records contradicts and undermines this defence utterly. Both the frequency and the pattern of phone calls between the applicant and Russell Warren and between Russell Warren and John Gilligan is striking. The telephone records support Russell Warren’s evidence of the early morning calls made to him by the applicant on the day of the murder. The telephone calls at 12.33 and at 12.35 to Brian Meehan support Russell Warren’s evidence as to the time during which he was following the victim and pointing out where she was going. The telephone call at 12.48 from Brian Meehan to Russell Warren lasting 20 seconds is consistent with Russell Warren’s timing of the sequence of events when, at or near the Airmotive factory, he recounted that the applicant called him having spotted Veronica Guerin’s car and so stating to Russell Warren who then followed both vehicles. Russell Warren described hearing the noise of the motor bike engine as he was speaking to the applicant who had a ‘hands-free’ facility on the bike. The telephone call at 12.48 from Brian Meehan to Russell Warren lasting 20 seconds is consistent with Russell Warren’s timing of the sequence of events when, at or near the Airmotive factory, he recounted that the applicant called him having spotted Veronica Guerin’s car and so stating to Russell Warren who then followed both vehicles. Russell Warren described hearing the noise of the motor bike engine as he was speaking to the applicant. Veronica Guerin’s last phone call is interrupted at 12.54 by her killing. The records corroborate the time of the shooting. Russell Warren stated that he witnessed the killing. At 12.57 Russell Warren entered an extra digit on the handset when making the first telephone to John Gilligan after the killing. In evidence he described himself at that time as having been in a state of disorientation “as if he was not there”. He further stated that he stopped his van and was physically sick.
As this analysis demonstrates, the pattern of telephone calls emerging from the records is entirely consistent with a “search and follow” operation, and the timing of certain calls meshes very precisely with events on the ground as described by Russell Warren, indeed do so to such telling effect that this Court is satisfied that they do corroborate his account in the manner required by Irish law. They do so in circumstances where no other explanation was ever suggested or put forward to explain them. They do so in the particular circumstances that the defence proferred on behalf of the applicant was one of no contact whatsoever between Meehan and Russell Warren on the day in question. They do so when considered as part of the totality of other strands of independent evidence in the case. For example, there was in this case independent evidence from a driving instructor, Mr Michael Kirby, who confirmed that he was instructing a pupil in a lorry at the scene of the killing, thus confirming Russell Warren’s account of what he saw and did immediately afterwards. The accuracy of Russell Warren’s account was further strengthened by the independent evidence of Marion Finnegan. The Special Criminal Court was satisfied that the man she saw in the vicinity of the Courthouse in Naas that morning was Russell Warren. Having so found, the trial court was in our view entitled to attach special importance to that evidence and treat it as corroborative of his account in the particular circumstances of the defence offered. Cumulatively, these various strands tended to support rather than contradict each other, but, more importantly, they confirmed Russell Warren’s account in many critical and disputed particulars. In the view of this Court they constituted corroboration of considerable strength for his evidence as a whole.
Part of Mr Gageby’s submission on this topic has been the suggestion that the court of trial failed to flag its intention to treat the telephone traffic evidence as corroboration and that he was denied fair procedures by not being given an opportunity to address this issue in some specific way in closing submissions. This submission does not impress the Court. The whole question of corroboration was a central feature in this case from the outset. Defence counsel was well able to deal with the telephone traffic evidence in closing submissions on Day 31/ pp. 112-114 and the Court does not believe the defence was in any way disadvantaged.
Mr. Gageby has also urged the Court to take the view that if it felt that the Special Criminal Court was wrong in treating evidence of telephone traffic as corroborative, then it should not allow the evidence in, as he put it, “by the back door” and treat it as evidence confirmatory or supportive of Russell Warren’s evidence. That, according to Mr Gageby, would be to allow the prosecution to make ‘a new case’, being one which they had not advanced in the court below, contrary to the decision of the Supreme Court in DPP v Cronin  IESC 9. While in view of our finding set out above it may be unnecessary to address this point, the Court, for the sake of completeness, will do so. Even if the telephone traffic was not to be seen as corroborative in either the strict formalistic sense set out in R. v. Baskerville, or in what this Court believes to be its more nuanced application in this jurisdiction, it does not follow that the evidence then simply fell away into a void. It remained at all times as relevant, independent and probative evidence which could be acted upon by the court of trial as being confirmatory and supportive of the account furnished by Russell Warren – not least because the court had warned itself of the dangers inherent in acting on the evidence of a suspect witness alone and was alert to scrutinise such evidence with meticulous care. In this context, the fact that the court may have seen itself as requiring ‘corroborative evidence’ within one or other of the interpretations of Baskerville is really beside the point. Whether the coercive independent evidence leading to belief in the truthfulness of Russell Warren’s account is supplied by corroborative evidence, either as narrowly defined in Baskerville, or in its more liberal interpretation in this jurisdiction, or by other confirmatory or supporting evidence, is ultimately, in the opinion of this Court, a distinction of no great importance. There was adequate independent evidence such as to enable the court to make the finding which it did make in respect of the credibility of Russell Warren. Nor was the question of identifying corroborative or supporting evidence some new feature which surfaced only for the first time on the hearing of this appeal such as might invoke the application of the principles laid down in DPP v Cronin.
The other evidence
The trial court did not of course simply convict the applicant on the evidence of Russell Warren corroborated or supported as it was by the evidence of Marian Finnegan and the telephone traffic evidence. It had other evidence of a circumstantial nature tending to establish the guilt of the applicant.
There was abundant evidence
in this case that the applicant was a member of John Gilligan’s
criminal gang which imported drugs and firearms in furtherance of
its own criminal purposes. The modus operandi of the gang was to import substantial
consignments of drugs through Seabridge in Cork under the direction
and control of John Dunne. Shipments of drugs were landed in Cork
and transferred to the car park of a hotel outside Dublin .The
applicant would meet with John Dunne from time to time at this
location to take delivery of drugs. The applicant was involved in
moving drugs from that location to the premises at Greenmount in
Dublin. When these premises were searched in October, 1996 they were
found to contain:-
The Court is satisfied that Charles Bowden and the accused together with others, namely, Peter Mitchell, Shay Ward and Paul Ward collected, counted and transmitted to others money generated from the sale of drugs.
The Court is satisfied that the accused while engaged in the unlawful sale of tobacco for periods of time was nevertheless implicated in the sale and distribution of cannabis.
The Court is satisfied that the accused frequently visited the lockup at Greenmount to administer and distribute drugs from that venue.
The Court is satisfied that the accused from time to time informed Charles Bowden that ‘extras’ would be arriving in the boxes and by this he meant firearms and/or ammunition.
The Court is satisfied that Charles Bowden on the instructions of the accused transported these firearms and/or ammunition to the graveyard at Old Court Road and hid them there in graves and that the firearms and ammunition referred to in the Indictment which were recovered by the Gardaí were located in graves pointed out to them by Charles Bowden were imported in this way.
The Court is accordingly satisfied that these arms and ammunition were in the accused’s possession or under his control and while the Court is not satisfied that he had them in his possession with a personal intention to endanger live, it is satisfied that the only possible reason that he had the arms and ammunition was to enable others to do so. The Court is also satisfied he did not have them for a lawful purpose.
Insofar as the drug related offences are concerned the Court is satisfied that the accused imported a controlled drug to wit cannabis resin on the dates alleged and that he had cannabis resin in his possession for the purpose of selling or otherwise supplying it to another on the dates alleged.”
This Court is satisfied that the Special Criminal Court had sufficient evidence to convict the applicant in relation to the firearms offences. That Court, having given itself due warning about the suspect nature of Charles Bowden’s evidence, was nonetheless entitled to find it credible in part and to act upon it to convict the applicant in relation to the firearms and drug offences. There were two significant pieces of corroboration for the evidence linking the applicant to the firearms. Firstly, the pouches found in Greenmount (where the applicant’s prints were found) corresponded with the pouches or containers found in the Jewish Graveyard at Old Court. Secondly there was evidence given by Juliette Bowden of a conversation she had with the applicant following the arrest of Charles Bowden where he referred to the firearms location as being “the graveyard”, even though the only evidence as to the location of the find of arms at that point was “Old Court Road”. She also gave evidence that the applicant frequently called to her house with large amounts of money which was counted there and further that the applicant had quizzed her in early October following Bowden’s arrest to inquire what information had been sought or given to the Gardai in relation to the Greenmount lock-up.
The Court will dismiss all the appeals against conviction in this case.