Conviction quashed where Chief Superintendent gave unnotified evidence beyond the Book of Evidence without seeking leave.

THE COURT OF CRIMINAL APPEAL

[2014] IECCA 37

188/12

Hardiman J.

Herbert J.

McDermott J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

SEAN FARRELL

Appellant

JUDGMENT of the Court delivered the 10th day of April, 2014 by Hardiman J.

1. On the 18th May, 2012, the appellant (Mr. Farrell) was convicted by the Special Criminal Court on a charge of 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

and as amended by s.48 of the Criminal Justice (Terrorist Offences) Act 2005.

2. The indictment alleged that he was on the 7th July, 2011, within the State, a member of an unlawful organisation to wit an

organisation styling itself the Irish Republican Army, otherwise known as Óglaigh na hEireann, otherwise the IRA. There is no dispute

that the organisation so denominated is an unlawful organisation and has been the subject of a suppression order pursuant to s.19(1)

of the Offences Against the State Act, 1939.

Factual background.

3. Mr. Farrell was arrested in the late afternoon of the 7th July, 2011 in Clanbrassil Street, Dublin. Earlier that day there had been

text communication between him and a Mr. Paul May in which it had been arranged that Mr. Farrell would call down to the home of

Mr. May, in Bride Road, Dublin 8. He did this and remained there for about ten minutes. Shortly after leaving the property he was

arrested. He had in his possession at that time a mobile phone which was registered in the name of Séan Lynch with an address in

Crumlin. This was the phone which had been used in the earlier texts. He also had a bag containing tools and DVDs.

4. The applicant was taken to Kevin Street Garda Station where he was interviewed on six occasions. His detention concluded at

1.48pm on the 9th July, 2011. On release, however, he was re-arrested and taken before the Special Criminal Court charged with the

membership offence.

The Trial.

5. The trial of the applicant commenced on the 19th April, 2012 before the Special Criminal Court. The substantive evidence against

him was the opinion of a Garda Chief Superintendent which was adduced in evidence pursuant to s.3 of the Offences Against the

State (Amendment) Act, 1972 as amended:

“(2) Where an officer of the Garda Síochána not below the rank of Chief Superintendent in giving evidence in proceedings

relating to an offence under the said s.21, states that he believes that the accused was at a material time a member of

an unlawful organisation, the statement shall be evidenced that he was then such a member.”

6. This evidence was supported by the terms of the six interviews with the appellant which took place in Kevin Street Garda Station.

In the course of these interviews the provisions of s.2 of the Offences Against the State (Amendment) Act 1998 were invoked. In the

main, the applicant confined his response to questions to “no comment”. However, he denied membership of an unlawful organisation.

The Belief evidence.

7. The statutory provision under which this evidence is admissible has already been set out. In the present case the statements of

proposed evidence indicated that the belief evidence relied upon would be that of Chief Superintendent Kevin Donohoe. But this

witness was taken ill and was unable to give evidence. Accordingly, the prosecution served a notice of additional evidence on the

defendant. This was the evidence of Chief Superintendent Diarmuid O’Sullivan. The Notice of Additional Evidence was in precisely the

same terms (apart from personal details) as that of the Chief Superintendent originally scheduled to give evidence. The substance of

his evidence, as set out on pages 13/14 of the judgment of the Special Criminal Court was:

“On the basis of confidential information available to me, I believe that Sean Farrell, born on 29th September 1984, of 76

Kilfenora Road, Crumlin, Dublin 12, is, within the State, a member of an unlawful organisation, namely, the IRA, otherwise

known as Óglaigh na hEireann, otherwise the Irish Republican Army and that he was a member of that organisation on 7th

July, 2011.”

8. Unlike the Chief Superintendent originally scheduled to give evidence, Chief Superintendent O’Sullivan was intimately involved in the

operation of which Mr. Farrell’s arrest was part. But he confirmed that he did not base his belief on any matters disclosed at the time

of that arrest, or after that arrest, or any conduct or admissions, statement or replies made by Mr. Farrell in the course of the

investigation or during the course of his arrest and detention.

Nature of above evidence.

9. It will, of course, be apparent that evidence of the sort given by the Chief Superintendent is evidence of a most unusual nature.

Opinion or belief evidence is normally confined to the evidence of experts and is only admissible on a charge such as this by special

statutory dispensation, which is set out above. The extra-ordinary nature of the Chief Superintendent’s opinion evidence was

discussed by Fennelly J. in DPP v. Martin Kelly [2006] 3 IR 115 at 130:

“This is evidence of a quite exceptional kind. Whether or not an accused person is a member of an unlawful organisation is

a question of fact. The Chief Superintendent gives evidence, not of fact, but of belief. His belief does not have to be

based on direct knowledge of the involvement of the accused in the unlawful organisation in question. It is patently based

on statements of others, whether inside or outside the force. It is probably frequently based on an intelligence available

to An Garda Síochána. That is precisely what is permitted by the Section. Such evidence, if given openly, would infringe

the hearsay rule, an objection which is circumvented by the Section. The Chief Superintendent simply says what his belief

is.”

Privilege.

10. It is quite clear from the extract from the Chief Superintendent’s statement of evidence, which is set out above, that his opinion

is based, in the terms in which it was notified, not on his own knowledge but on “confidential information”. This gives rise to a

considerable difficulty in testing or challenging it since of course the person who is the source of the information is not in court and

(as in this case) enquiries as to the source will invariably lead to a claim of privilege, invariably upheld.

11. It is, of course, necessary to recall that this form of evidence is rendered admissible in connection with offences relating to

membership of unlawful organisations. These organisations, notoriously, have been guilty of violence of an undiluted character and are

capable of endangering the lives of persons whom they consider to be inimical to them. It is those undeniable facts which render

necessarily the altogether extraordinary measure set out in s.3(2) of the Act of 1972, set out above.

12. From the defence point of view, the statutory power to receive evidence of this sort makes it extremely hard for a defendant who

rejects the membership charge brought against him to cross-examine the Chief Superintendent with a view to undermining the

credibility of his evidence. Though the entitlement to claim privilege is quite understandable, and indeed necessary, the entitlement

can create a cocoon into which a challenged witness can retreat leaving very little scope for the necessary testing of the evidence

by the Defence. If the Chief Superintendent is wrong there is a real risk of miscarriage of justice.

Cross-examination.

13. During the cross-examination of the opinion witness, Chief Superintendent O’Sullivan, on the seventh day of the trial (2nd May

2012) the following relevant exchanges took place:

“Q. Just first of all, in relation to your not basing it on anything that arose during the course of this investigation, you

made a statement, Chief Superintendent, that in July 2011, last year, you were conducting an investigation or an

operation targeting dissident republicans, words to that effect. Do you recall making that statement?

A. Yes, Judges.

Q. And since then, of course, you have been involved in this particular investigation and this prosecution, so, for a period

of about 10 months now?

A. Yes, Judges.

Q. So, I mean, you are in a situation, are you not, where you certainly know that Mr. Farrell has been charged with this

offence for the last 10 months or thereabouts?

A. That’s correct Judges.

Q. And you’ve certainly, no doubt, as a member of the prosecution team and the investigation team, laboured, or had the

belief in relation to Mr. Farrell: isn’t that so? As part of this prosecution up until now?

A. I had a belief in relation to Mr. Farrell.

Q. And you’ve had for the last 10 months?

A. As a matter of fact, Judges, my belief in relation to Mr. Farrell goes back nearly as long as 10 years, as

distinct from 10 months. I know Mr. Farrell since back in early 2001, 2002, and I know him to be a member of the

IRA since that date, Judges.” (Emphasis added)

(Transcript, Day 7 pp 7/8)

14. In subsequent cross-examination, counsel established that the witness had certain sources both inside and outside the gardaí and

also technical sources. He would not be in a position to identify the sources, but would claim privilege on the identity of the sources

“as divulging the names of the sources would most certainly put them in danger… divulging information to law enforcement agencies

has the consequences of death”.

15. Later in the cross-examination, having explored the nature, rather than the identity, of the Chief Superintendent’s sources,

counsel put it to him that:

“Q. In relation to Mr. Farrell, yes, that they are wrong?

A. No, Judges. I am completely happy in relation to the information I have received in relation to Mr. Farrell. As a matter

of fact I have numerous incidents that I received intelligence regarding Mr. Farrell’s activities. None of them have

anything to do with the present investigation and, as I say, go back over a span of nearly ten years.

Q. You see, the position of Mr. Farrell, as you probably know, is that he was, certainly, in the past a member of Sinn Féin;

do you know that? Are you aware of that?

A. I’m aware that he was a member of the IRA. I’ve never heard that he was a member of Sinn Féin. I am aware that he

was a member of the IRA and I’m aware of the activities that he was involved as a member of the IRA for a considerable

period of time. There’s a litany of incidents which Mr. Farrell was involved in as an active member of the IRA over

the last number of years and I am actually fully aware of them because I was the recipient personally of that

information and I know where this information came from. (Emphasis added)

Q. And, you know, I have to suggest to you that although he has had contacts in the past with republicans, he is not, in

fact, now or ever, a member of the IRA?

A. Judge, I’m not relying on contact, I’m relying on specific intelligence that I receive from confidential sources that he is

a member of the IRA in the past and that evidence is supported by investigations that I’ve conducted over the last

number of - 10 years, and it’s also supported by technical information that I have in my possession… regarding his

activities.

Q. Would you accept that we are limited, from where we are standing, in addressing or attacking the sources of your

information because we simply won’t be in a position to cross-examine them?

A. I appreciate the circumstances in relation to belief evidence of a chief superintendent, but all I can say is that I am

100% satisfied that the information that I have in my possession has come from a reliable source, a confidential source,

and it has more - a lot more incidents than, we’ll say, one, two, three or five incidents that Mr. Farrell was

involved in over a considerable period of time.” (Emphasis added)

16. In these passages, the witness goes a great deal further than he had done in his statement of evidence. Furthermore, he did so

in answers which do not appear to be responsive to the questions asked, giving the impression that he was keen, no matter what the

question, to make certain statements. These statements are highly dramatic. Rather than a charge relating to a single day in 2011,

new information is said to relate to a period of ten years. Moreover, individual incidents to which the witness refers are so numerous

that they are described by him as

“a litany”.

17. The difficulty with the foregoing evidence, in the appellant’s submission, is precisely that it was not notified. Every person facing

trial on indictment is entitled to be served with “Statements of Proposed Evidence” which put him on notice of what, specifically, is

alleged against him so that he can take whatever steps he may be advised in order to rebut that evidence. He cannot, of course,

hope to rebut at his trial, other than by his own bare denial, evidence of which he has not been notified and of which he hears for the

first time when the trial is well under way.

Submissions.

18. Mr. Farrell, on this appeal, relied on eleven separate submissions some of which raise very serious issues. These points have all

been very seriously considered. However in keeping with long established practice it seems appropriate, before embarking in writing

upon any of them, to see whether the case can be resolved on the narrowest of the points taken. This is the one which arises out of

the facts as summarised above. It is expressed as follows in the third of the appellant’s eleven grounds:

“The learned trial court erred in failing to disregard to the evidence of Chief Superintendent O’Sullivan that the applicant

had been involved in a large number of incidents relating to IRA activity over a 10 year period; in circumstances where

the Defence were not on notice of the said allegation in advance of the Chief Superintendent’s evidence and could not

effectively cross-examine him in relation thereto”.

19. In advancing this point, Mr. Farrell relies on a dictum of O’Donnell J. in DPP v. Donnelly, McGarigle and Murphy [2012] IECCA 78:

“The Court accepts that the provisions of s.3 of the Act of 1972 and s.2 of the Act of 1998 require careful scrutiny. Even

when it is accepted that the statutory provisions whether individually or cumulatively do not offend at the level of

principle, there remains in any given case an issue as to the fairness of the individual trial”.

20. A not dissimilar situation arose over thirty years ago, also in the Special Criminal Court, in DPP v. Cull (1980) 2 Frewen 36.

21. In that case, the applicant was likewise charged with the membership of an unlawful organisation. This charge was likewise

supported by the opinion evidence of a Chief Superintendent. No other evidence was relied upon in the statements of evidence.

Accordingly, the defendant “was led to believe that the only evidence to be offered in support of the charge would be a statement of

his opinion by a Chief Superintendent… to rebut such evidence it would be necessary that the applicant should himself give evidence”

(p.38 of the Report).

22. Gannon J., giving the judgment of the Court of Criminal Appeal recorded that:

“Upon his doing so [i.e. giving evidence] questions were put to him in cross-examination relating to his conduct on a

number of occasions other than the date referred to in the charge. The purport and effect of such questions were to

bring to the notice of the Court matters implying or leading to the inference that the applicant was or might have been a

member of an illegal organisation on one or more of such occasions, or on the date of the charge”.

23. In those circumstances, the defence submitted that:

“had the applicant been furnished before his trial with a statement of evidence of the matters put to him in cross-

examination he would have had the opportunity of giving his explanation of his conduct which might have successfully

rebutted the implications or inferences drawn by the Court. It was contrary to basic principles of fairness in the trial

procedure to withhold information of that nature from the Court and from the applicant until he was in the

witness box and then to confront him with it for the first time when, effectively he would be at the greatest

disadvantage”.

24. In quashing the conviction, Gannon J. said:

“If the opinion of a Chief Superintendent is founded upon or supported by facts capable of being established by evidence

in relation to the statements or conduct of the accused person, such evidence should be given to the Court of trial…

25. The provisions… requiring that an accused person being informed of the nature and substance of the evidence intended to be

offered in support of the charge proffered against him, form part of the essential requirements of a fair trial”.

26. Accordingly, Mr. Padraig Dwyer S.C. for Mr. Farrell submits, the manifestly prejudicial evidence referred to in the extracts of the

evidence given under cross-examination by the Chief Superintendent, set out above, should plainly have been notified to the accused

and his legal advisers in advance, and not kept for deployment in cross-examination, by way of ambush or surprise. To permit this

practice is to bring about a situation, it is said, in which no effective cross-examination is possible.

The State’s submissions.

27. In answer to this submission, Mr. Michael Bowman B.L. for the prosecution pointed out that the case of Cull and the present case

can be readily distinguished because, in this case the evidence objected to was given in cross-examination of a State witness,

whereas in Cull the information in question was kept for use in cross-examining the accused.

28. Mr. Bowman also, and with considerable emphasis, made the following submission:

“As regards the issue of non-disclosure of such incidents, if that were a matter of such concern to the defence during the

trial, they ought properly to have simply queried whether or not that material was capable of being disclosed and ought

properly to have been disclosed, and advanced their complaint and/or argument from that point on”.

29. Mr. Bowman, indeed, regarded the conduct of the defence as being to conduct the cross-examination to the point which they did

for the purpose of giving rise to a ground of appeal.

Resolution.

30. It is certainly a distinction between this case and that of Cull that in the latter the undisclosed material was used for the purpose

of cross-examining the accused, whereas in the present case it was used by being deployed by the very experienced State witness in

response to cross-examination by the defence. As has been noted above, it was not so deployed in answer to a question relating to

the undisclosed material but to questions which had nothing to do with it at all. It seems overly suspicious to submit that the defence

contrived at getting the witness to deploy this material since they were not on notice of it and it is not easy to see how they could

otherwise have been aware of it.

31. Mr. Bowman is undoubtedly correct in saying that one of the options available to the defence would have been to seek disclosure

or additional evidence of the matters to which the Chief Superintendent had testified without notice, and deferring the cross-

examination for that reason. But such a course of action, in dealing with a wily and experienced witness, would seem tactically very

unwise. The purpose of giving an accused person notice of the evidence to be deployed against him is to give him a fair opportunity

of answering it, not by bare denial but by evidence of his own or confrontation with the witness who makes the allegation against

him. It is for that reason that prior notice is described as an essential of a fair trial. It would appear extremely unwise to court the

disclosure of further material in the middle of a trial when there can of necessity be little or no opportunity of preparing a response to

it.

32. Mr. Bowman also emphasised the possibility that some or all of the undisclosed material might itself be privileged. Certainly,

privilege is very likely to be claimed, quite properly, over the sources of the information. But it appears that, at a minimum, the Chief

Superintendent’s information extends to a significant number - indeed “a litany” - of actions on the accused’s part said to support the

charge. It has not been contended that none of these pieces of information, as opposed to their source, could be disclosed. If that

were so, it would be a matter for prosecuting counsel to consider what information about this “litany” of events could or should be

disclosed to the defence. It might be that little or no such information could be disclosed: but it might be that a great deal of

information could be disclosed especially if (as in Cull) some of the events or activities composing the “litany” were in the nature of

attendance at public events.

33. But it is premature in this judgment to go into the difficulties of, and limits on, disclosure. The salient fact is that in the present

case no notice whatever was given of factual material which the Chief Superintendent was, evidently, eager to put before the Court.

34. It may be important to say the foregoing observations arise out of the specific circumstances of this case. Most relevantly, Mr.

Dwyer S.C. conducted his cross-examination of the Chief Superintendent with exemplary prudence. He was very careful not to “open

the door” to any un-notified evidence. The position might be quite different in a case where the defence advocate, by incautious

cross-examination, exposed his client to the risk of undisclosed material being deployed.

35. If the Chief Superintendent, or prosecuting counsel, wished to deploy the information which the Chief Superintendent eventually

gave unasked, the defence should have been put on notice of it. This is one of the essentials of a fair trial. When no such notice was

given, it was quite inadmissible for the witness to blurt it out uncalled for.

36. In a prosecution such as this the prosecution may wish to rely exclusively on the belief of a Chief Superintendent, admissible by

reason of s. 3(2) of the Offences against the State (Amendment) Act 1972. They may intend to give no further details at all of the

basis for the Chief Superintendent’s belief either in his or her own direct evidence or in cross examination. In that event, it is not

necessary to put the defendant on notice of any further details, or any supporting material, in the “Book of Evidence”. In that event,

however, no further details of the basis of the belief or the detail supporting it may be given in evidence or in cross-examination.

37. Alternatively, the prosecution or the Chief Superintendent may indeed intend to offer a basis for his or her belief and also

supporting details for that belief, and may intend to do either in direct examination or in cross-examination. In this event, that basis

and those details must be set out in the statement of evidence which is served as part of the Book of Evidence. If this happens, it

will become incumbent on prosecuting counsel to consider what disclosure can or should be made to the defence in relation to those

details.

38. In either event, the prosecution or the Chief Superintendent may intend that privilege will be claimed, if the issue arises over the

basis for the belief and the source of the belief or any material supporting them or the sources through whom these things come to be

known to the Chief Superintendent. If this is the position, that should be stated in the Book of Evidence and the extent of the claim

of privilege defined.

39. If, as happened in this case, evidential material beyond what is set out in the statement of proposed evidence is in fact given by

the Chief Superintendent then the prosecution must decide whether they intend to rely on this material or not. If they do, they must

seek leave to serve a statement of additional evidence on such terms as to adjournment or otherwise as the Court may think proper.

If that is done then the prosecution will have to consider afresh their disclosure obligations. If it is not done then the additional

material should be disregarded by the court and it should be made clear that this is the position. This, in fact, is what the defence in

the present case asked the Court to do.

40. In the result, the Court will quash the conviction.