Court of Criminal Appeal dismisses appeal where trial court properly balanced informant privilege against fair trial rights.

COURT OF CRIMINAL APPEAL

McCracken J

Peart J

Dunne J

224/03

Between:

The People at the Suit of the Director of

Public Prosecutions

Respondent

AND

Martin Kelly

Applicant

Judgment of the Court delivered by McCracken J on the 29th day of April 2005

___________________________________________________________

Background

The Applicant and a co-accused, Billy Clare, were charged before the Special Criminal Court with membership of an

unlawful organisation contrary to s.21 of the Offences Against the State Act 1939 as amended by s.2 of the Criminal Law

Act 1976. The particulars of the offences alleged against the Applicant were stated as:-

“Martin Kelly, on the 29th day of July 2002, within the State, was a member of an unlawful organisation, to

wit an organisation styling itself the Irish Republican Army, otherwise Oglaigh na hEireann, otherwise the

IRA.”

Both the Applicant and his co-accused initially pleaded not guilty, but on the fifth day of the trial his co-accused changed his

plea to one of guilty. The Court heard evidence over a period of nine days from thirteen witnesses and found the Applicant

guilty of the offences charged and sentenced him to four years imprisonment.

The Factual Allegations

The prosecution’s allegations were that the principal witness, David Mooney, in association with four other persons planned

to set up a lap dancing club in Temple Bar in Dublin. Among the other arrangements which had to be made was to engage a

firm to provide security, and ultimately a firm by the name of Protocol Security were engaged.

On 27th May 2002, being the day the club was due to open, one of the principals in Protocol Security requested David

Mooney to meet him at lunch time. The meeting duly took place and was attended by David Mooney, Gerard Cosgrove

who was one of the partners in the enterprise, Patrick Byrne from Protocol Security and the two accused. In the course of

this meeting the Applicant introduced Billy Clare as “the top man” meaning the top man in the IRA. It was alleged that in the

course of a conversation between David Mooney, Patrick Byrne and Billy Clare, Billy Clare said that certain people in

Dublin did not want the club to open but that they would make sure it would open if a donation was given to the Continuity

IRA, and if that contribution was not made, the dancers and David Mooney’s girlfriend would be hurt and the premises

would be petrol bombed. Initially a payment of €50,000 was sought, but after some discussion this was reduced to €25,000.

Ultimately the €25,000 was paid by instalments.

The Applicant’s Defence

It was not disputed that this meeting took place, or indeed that the sum of €25,000 was asked for. However the Applicant’s

case was that this was to be a payment bona fide for the provision of security services for a year and that there was no

question of the involvement of the Continuity IRA or any other illegal organisation. While Billy Clare did ultimately plead

guilty to the offence charged, the Applicant gave evidence denying membership of any illegal organisation. He also denied

knowing that Billy Clare was a member of the Continuity IRA, although he admitted knowing that he had at one time been a

member of the Irish National Liberation Army, also an illegal organisation.

The Evidence

Chief Superintendent Kelly gave evidence in accordance with s.3(2) of the Offences Against the State (Amendment) Act

1972 as amended of his opinion that the Applicant had been a member of the IRA on the relevant date. He also stated that

he believed that the Applicant had been a member of the IRA for six months prior to that date. He was cross-examined as to

the source of his belief but pleaded privilege on the basis that the disclosure of his sources could endanger life. The Court

upheld his plea of privilege.

The principal evidence was that of David Mooney. His evidence supported the prosecution allegations. The prosecution also

called Patrick Byrne and Gerard Cosgrove as witnesses. Their evidence contradicted that of David Mooney and supported

the Applicant’s case. An application was made by the prosecution to treat Patrick Byrne as a hostile witness, which was

initially refused but was subsequently granted. An application was also made to treat Gerard Cosgrove as a hostile witness,

but this application was not proceeded with.

David Mooney was subjected to severe cross-examination on behalf of the Applicant, primarily attacking his character and

his past history. In addition, his former girlfriend gave evidence on behalf of the prosecution and stated under cross-

examination that he could be very erratic and unreliable.

Evidence was also given by a former employer as to the reasons for his dismissal, although much of this was found to be

inadmissible on the basis that it was hearsay.

Assessment of the Evidence

The Applicant’s submission was that David Mooney was unreliable to a point where no reasonable Court or jury could hold

a belief beyond all reasonable doubt based on the evidence offered by him. Great emphasis was placed on the fact that his

evidence was contradicted by that of two other prosecution witnesses and also on the evidence as to his character. It was

admitted by him that he had passed himself off as a member of An Garda Siochana in order to obtain insurance, and also

that he impersonated a member of An Garda Siochana on one occasion. Further, David Mooney had been in a witness

protection programme for some twelve months before the hearing, and it was sought to make the argument that he was in

effect being paid to give evidence for the prosecution.

The Special Criminal Court is in a unique position in that it has three members who are acting both as judge and jury. Unlike

jury trials, where the Court of Criminal Appeal has no guidance as to how the jury reaches a verdict, a judgment dealing

with facts is given by the Special Criminal Court. In that part of its judgment, the Court is acting as a jury in assessing

evidence, and is expounding its reasons for accepting or rejecting certain portions of evidence. In the present case, in the

course of a lengthy judgment, the Court considered each of the witnesses who had given evidence. After giving an account

of the evidence given by the witness, in each case the Court then gave its impression of the witness under the heading

“Credibility”. In relation to David Mooney the Court held:-

“Vigorous efforts were made to discredit this witness by putting to him that he had a record of cocaine abuse,

drunkenness, lying, theft and involvement in fraudulent conversion. He gave his evidence in a forthright

manner both in examination and cross-examination. Throughout his evidence it was apparent to the Court

from his demeanour that he was in fear. Where his past conduct was impugned in relation to his describing

himself as a member of An Garda Siochana, he readily accepted this.

The Court is satisfied that he was indeed in fear of both the accused and of the Continuity IRA. It is for this

reason he accepted entry into the Witness Protection Programme and removed himself from Dublin and

pending the trial for approximately one year remained in isolation. The Court is satisfied that he is a truthful

witness.”

In relation to Patrick Byrne, the Court held:-

“The witness throughout his evidence was hesitant and there was frequently a very long pause between a

question posed by Mr Birmingham and the answer. At a later stage in his evidence he was clearly terrified

and the impression of the Court was that he was anxious that he should give no answer that could implicate

Martin Kelly or the IRA in the events described by Mr Mooney and in the final stage of his evidence that while

implicating the IRA he was anxious that he should not implicate Martin Kelly. The stress which he was under

was apparent.”

In relation to Gerard Cosgrove the Court held:-

“The witness was not convincing in his evidence. In describing himself as landlord, which is factually true,

his intention was to divorce himself from the operation of the club. He gave no coherent account of his

relationship with David Mooney other than to describe him as a consultant. He gave no account of any

involvement of silent partners. The Court regards his account of the manner in which the sum sought by

Martin Kelly and William Clare was negotiated upwards of €15,000 to €25,000 so unlikely as to be

incredible….

In his evidence he created an impression of being evasive ….

The impression left upon the Court by the witness’s manner of giving his evidence is that he is an

untrustworthy witness.”

In relation to the Applicant himself, the Court found:-

“The witness gave his evidence in a straight forward and vigorous manner. There are inconsistencies within

the same. He was reticent about his knowledge of and prior relationship with Christy Dunne and likewise his

relationship with William Clare outside the circumstances mentioned in the evidence of prosecution witnesses.

His account of the arrangement for payment for the additional security at the lap dancing club lacks

credibility. The suggestion that David Mooney was taking cocaine on the premises and that this was reported

by him to Gerard Cosgrove and that this led to David Mooney being asked to leave the premises is not

credible…. The witness’s evidence as a whole makes clear that his answers at interview to Detective Sergeant

Prenty quoted in this judgment were untrue and misleading.

The Court is satisfied that it should approach his evidence with caution.”

The principles to be applied by an appellate court in relation to decisions of fact by a trial judge have been set down by the

Supreme Court in the well known case of Hay v. O’Grady [1992] 1 IR 210. This Court considers that those principles,

which were enunciated in relation to an appeal in a civil action, are equally applicable to an appeal from the judges of the

Special Criminal Court in criminal proceedings. At page 217 McCarthy J set out the principles to be followed, the ones

relevant to the present case being:-

“The role of this Court in my view may be stated as follows:-

(1) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial

judge who hears the substance of the evidence, but also observes the manner in which it is given, and the

demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

(2) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by

those findings, however voluminous and apparently weighty the testimony against them. The truth is not the

monopoly of any majority.

(3) Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the

trial judge to draw inferences of fact (see the judgment of Holmes LJ in Gairloch [1899] 2 IR 1 cited by

O’Higgins CJ in the People (DPP) v. Madden [1977] IR 336 & 339). I do not accept that this is always

necessary so. It may be that the demeanour of a witness in giving evidence will itself lead to an appropriate

inference which an appellate court would not draw. In my judgment, an appellate court should be slow to

substitute its own inference of fact, where such depends upon oral evidence or recollection of fact and a

different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial

evidence, an appellate tribunal is in as good a position as the trial judge.”

The Court considers that the present case is one to which these principles are particularly applicable. As can be seen from

the extracts from the judgment quoted above, the Special Criminal Court laid very great emphasis on the demeanour of the

witnesses in the witness box and on the manner in which they gave evidence. A transcript records the words spoken, but not

the manner in which they were spoken. This was a case involving striking conflicts of evidence which could not be

explained simply by errors of memory or lapse of time. Quite clearly false and perjured evidence was being given by some

witnesses. This Court is impressed by the care with which the Special Criminal Court assessed credibility of the various

witnesses, and the clear way in which it expressed its findings. This Court has no doubt that there was credible evidence

upon which such findings could made, and on the basis of the principles set out in Hay v. O’Grady, this Court would not

interfere with the findings of fact made by the Special Criminal Court.

The Evidence of Chief Superintendent Kelly

As already stated Chief Superintendent Kelly gave evidence of his belief that the Applicant was a member of the IRA at the

relevant date. In the course of his cross-examination he was asked the source of his information and he replied:-

“My lords, I cannot disclose the source of my information. I would like to claim privilege on it because if I

did disclose it, it would endanger the life of the people that supplied the information. It would also endanger

ongoing gardaí operations against the IRA.”

Upon further cross-examination he persisted in this attitude.

Mr Finlay SC on behalf of the Applicant has sought to invoke the European Convention on Human Rights in making the

argument that the refusal to disclose the source of information was in breach of the Convention and in particular of Article 6

thereof. However, at the date of the decision in the present case the Convention did not have the force of law, and Mr

Finlay accepts that it can only have some form of persuasive effect.

He does, however, also make the argument that the Applicant was not given a trial in due course of law as is his entitlement

under Article 38 of the Constitution. Very fairly, he does not go so far as to argue that a claim of privilege cannot be

entertained, but he does submit that a fair trial requires some investigation as to whether it is reasonable to protect a claim of

privilege in any particular case.

The Applicant relied on the recent House of Lords decision in R v. H & Ors [2004] 2 AC 13. In that case the House of

Lords was asked to consider a preliminary point as to whether the procedures for dealing with claims for public interest

immunity by the prosecution in criminal proceedings complied with Article 6 of the European Convention on Human Rights.

There is a procedure sometimes used in the Courts of England and Wales whereby a special independent counsel can be

appointed by the Court to argue on behalf of a defendant in relation to a claim for privilege or public interest immunity. This

is a procedure which would probably not be followed in this jurisdiction, and in any event concerned the disclosure of

documentary evidence by the prosecution. However, there are certain principles laid down which may be relevant to the

present circumstances. It that regard it is sufficient to cite a portion of the head note which reads as follows:-

“Held, (1) that, having regard to the overriding principle that the trial process, viewed as a whole, should be

fair and to the rule obliging the prosecution to make full disclosure of unused material tending to undermine

its case or assist that of the defence, the trial judge on a PPI (Public Interest Immunity) application was

required to give detailed consideration to the material sought to be withheld in the context of the prosecution

and defence cases, to identify the public interest in question and assess the prejudice claimed, and to ensure

that any derogation from the full disclosure rule was the minimum necessary to secure the required

protection.”

A somewhat similar situation arose in this jurisdiction in relation to the disclosure of documents in DPP v. Special Criminal

Court [1999] 1 IR 60. This case concerned the prosecution of Paul Ward for murder before the Special Criminal Court.

The prosecution had in its possession a number of statements which it refused to disclose to the defence on the basis that

such disclosure would place at risk the lives of the persons making the statements. The Special Criminal Court ruled that if

the accused was prepared to waive his right of personal inspection, the documents should be disclosed to his legal advisors

on the basis that no information contained in them would be divulged to any other party. The Director of Public

Prosecutions sought an order of certiorari setting aside this ruling. The High Court in granting such order held that the proper

procedure was that the Court of trial should examine the documents and determine whether any of them might help the

defence case, help to disparage the prosecution case or give a lead to other evidence in order to determine which, if any, of

the statements should be disclosed to the defence.

On appeal, the Supreme Court confirmed the order of certiorari setting aside the ruling of the Special Criminal Court, but did

not agree with the direction given by the learned High Court Judge that the Special Criminal Court should examine all the

documents. O’Flaherty J said at page 88:-

“I would, however, vary Carney J’s judgment to this extent. I would remove any direction to the Special

Criminal Court as to whether the members of the Court should examine some or all of the documents in

debate. I would repose to the Court’s full discretion how the trial is conducted and, in particular, to decide

this matter. The Judges may ask anew whether there is any point at all in looking at the documents in the

second and third category. But I reiterate that the decision is for the members of the Special Criminal Court.

It needs to be emphasised, however, that the duty that will devolve on the members of the Court will be a

continuing one as the trial develops and evolves. The members of the Court will be astute no doubt to monitor

the situation throughout.”

That case concerned the disclosure of documents which were in the hands of the prosecution. The problem in the present

case relates to information in the possession of a Chief Superintendent of the Gardaí, which quite possibly is not

documented at all. The simple solution of allowing the members of the Special Criminal Court to see the disputed

documentation cannot really be adapted to the circumstances of the present case. This Court is not aware of any procedures

whereby it would be open to the Special Criminal Court to hear evidence in the nature of a voir dire from the Chief

Superintendent in the absence of counsel for the Applicant.

There is no doubt that there is a long established principle that in certain circumstances the gardaí are entitled to refuse to

disclose sources of information. As it was put to the Court by Mr Birmingham in the present case, if informers cannot be

guaranteed immunity, they would not inform. There is undoubtedly a serious public interest in ensuring that persons who

might be subject to intimidation and threats, if not actually in danger of their life, should be protected to ensure that

information in their possession will be given to the gardaí to assist in the prosecution of wrongdoers. As against this, there is

also the constitutional obligation on the Courts to ensure that the accused gets a fair trial. It seems to this Court that the

balancing of these conflicting rights and interests can only be determined by the Court of trial. It must be remembered that

the purpose of s.3(2) is simply to make the statement of opinion or belief of the Chief Superintendent admissible as

evidence, and while it may be persuasive, it is not conclusive. The Court must consider that evidence in the light of all their

surrounding circumstances, and in particular of the other evidence in the case.

In the present case, the Court can certainly take into account the fact that the Chief Superintendent refused to identify the

basis of his belief. However, in reaching its decision the Court must also take into account the fact that the Applicant

appears to have made a false statement to the gardaí and the evidence of the other witnesses. The Court having decided that

they accepted the evidence of Mr David Mooney, was entitled to treat this evidence as corroboration of the belief of the

Chief Superintendent.

This Court is of course bound by the ruling in the Ward case that claims of privilege of this nature are a matter for the

Special Criminal Court rather than for the Appellate Court. On that basis, the argument that the Applicant did not receive a

fair trial must be rejected. This Court leaves open the question of whether it could interfere in such circumstances if there

was no other evidence corroborating the belief of the Chief Superintendent, but as there is such evidence in the present case

the Court must refuse leave to appeal.