Court of Criminal Appeal dismisses appeal against murder conviction and sentence due to sufficient evidence.

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

de Valera J.

[177/99]

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

BRIAN MEEHAN

APPLICANT

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 be:-

(a) The principal witness linking the applicant to the murder of Veronica Guerin, Russell Warren, was an accomplice whose

evidence was not adequately corroborated in accordance with the requirements of Irish law.

(b) There was no adequate evidence to enable the Special Criminal Court convict the applicant in respect of the firearms

offences.

(c) The telephone traffic records in relation to the mobile phone user or phones habitually used by John Gilligan, Russell

Warren and the applicant on the day of the murder of Veronica Guerin were not admissible as evidence. Alternatively, if

admissible, the same did not amount to corroboration in Irish law.

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 [1916] 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 number of telephone calls made that morning clearly implicate the accused in a material particular and

the Court finds of particular significance the call made at 12.48, namely, six minutes before the murder. This

call would mesh in exactly with Russell Warren’s evidence of the call which he had with the accused while

Veronica Guerin was passing the Airmotive factory on the Naas Road.

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.”

This Court will now turn to examine the different challenges made to the findings of the Special Criminal Court with regard

to this conviction.

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:-

“(1) Subject to this Part, information contained in a document shall be admissible in any criminal

proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the

information -

( a ) was compiled in the ordinary course of a business,

( 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.”

On behalf of the applicant it is contended that the records, and particularly those relating to the identity of the subscriber, did

not satisfy the provisions of s.5 and in the circumstances were not admissible. Inherent in this submission is the contention

that, absent the statutory provision, the evidence was not admissible in common law. Alternatively, it was submitted that the

records, and particularly those relating to the identity of the subscriber, did not satisfy the common law principles for the

admission of records generated mechanically, and in the circumstances were not admissible into evidence.

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;-

“Mr. White’s point as regards time in relation to s.7 of the Criminal Evidence Act of 1992 would be

unanswerable were the State proceeding by certificate under s.5 of The Criminal Evidence Act of 1992. They

are not, in fact, doing that, but are proceeding under the pre-existing procedures prior to the Criminal

Evidence Act of 1992… one should consider the entirety of the Criminal Evidence Act of 1992 as a whole and

it provides a mechanism of proof of certain matters by certificate. But even then it provides that in certain

circumstances proof shall nevertheless proceed in the traditional and pre-existing fashion by oral evidence. I

am satisfied that the Criminal Evidence Act of 1992 provides ample alternatives to pre-existing procedures but

does not abolish them.”

The view that the Act of 1992 did not abrogate or abolish existing common law rules for the admissibility of documents was

also approved by this Court in DPP v. Colm Murphy [2005] 2 I.R. 125

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 [1968] 1 W.L.R. 739, R v. Wood [1982] 76 Cr. App. Rep 23 and Castle v.

Cross [1985] 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 [1993] 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 [1992] 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 [1965] 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:-

“The reason why this evidence is maintained to have been inadmissible is that its cogency depends on

hearsay. The witness could only say that a record made by someone else showed that if the record was

correctly made, a car had left the works bearing three particular numbers. He could not prove that the record

was correct or that the numbers which it contained were in fact the numbers on the car when it was made.

This is a highly technical point, but the law regarding hearsay evidence is technical, and I would say absurdly

technical. So I must consider whether in the existing state of the law that objection to the admissibility of this

evidence must prevail.”

One must say at once that the decision in Myers led to a statutory abrogation of the hearsay rule in England and Wales in

the Criminal Justice Act, 1965, and indeed there were later abrogations in the Civil Evidence Act, 1968, and the Police and

Criminal Evidence Act, 1984. Be that as it may, the difference in the instant case is that there was direct evidence about the

names, number assignments and use thereof, and given further that the generation of all other information was solely by the

computer, i.e. mechanically without personal interference or input, the records were, in the view of this Court, clearly

admissible.

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:-

“8.15: Brian Meehan to Russell Warren 10 seconds.

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.

12.33: Russell Warren to Brian Meehan 1 minute and 17 seconds.

12.35: Russell Warren to Brian Meehan 20 seconds.

12.48: Brian Meehan to Russell Warren 20 seconds.

12.54: Veronica Guerin’s last phone call (interrupted).

12.57: Russell Warren to John Gilligan 12 seconds (note on the evidence an extra digit is punched

in beyond the number required to phone John Gilligan).

13.12: Brian Meehan to John Gilligan 6 seconds.

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.

13.44: Brian Meehan to John Gilligan 1 minute and 15 seconds.

13.49: John Gilligan to Brian Meehan 56 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.

15.43: Russell Warren to John Gilligan 3 minutes and 20 seconds.

16.00: Brian Meehan to John Gilligan 9 seconds.

16.01: Brian Meehan to John Gilligan 1 minute 39 seconds.

20.58: Russell Warren to John Gilligan 3 minutes and 40 seconds.

22.17: John Gilligan to Russell Warren 114 seconds.

22.32: Russell Warren to John Gilligan 21 seconds.”

Before any other analysis of this material is undertaken, it is first necessary to consider the concept of corroboration in the

particular context of Irish criminal law.

Corroboration

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 [1969] I.R. 181 at 184, Butler J. gave a clear

exposition of this basic proposition in stating:-

“There is no rule of law to the effect that the uncorroborated evidence of an accomplice must be rejected. The

rule is that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it

is dangerous to convict upon the evidence of an accomplice unless it is corroborated; but that having borne

that in mind and having given due weight to the warning, if the evidence is nonetheless so clearly acceptable

that the tribunal is satisfied beyond doubt of the guilt of the accused to the extent that the danger which is

generally inherent in acting on the evidence of an accomplice is not present in the case, then the tribunal may

act upon the evidence and convict.”

In this appeal it is common case that Russell Warren was an accomplice. It is also common case that the Special Criminal

Court gave itself a warning about the dangers of acting on uncorroborated accomplice evidence. It is also common case that

the Special Criminal Court identified certain specific portions of the evidence as capable of being and actually constituting

corroboration of the evidence given by Warren. This evidence was so found by the court in addition to other evidence

indicative of the guilt of the applicant. The applicant now seeks to establish that the material relied upon by the court as

constituting corroboration does not meet the legal definition of corroboration and further, given that the court itself stated

that this was a case where corroboration was required, that the conviction of the applicant for the murder of Veronica

Guerin cannot stand without corroborative evidence which complies with the strict legal criteria laid down by the Court of

Criminal Appeal in England in the case of R v Baskerville [1916] 2 K.B. 658.

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 [1973] A.C. 296 at 321:-

“…the word ‘corroboration’ in itself has no special legal meaning: it is connected with a Latin word ‘robur’

and the English word ‘robust’ and it means ‘strengthen’: perhaps the best synonym is ‘support’.”

In the same case Lord Diplock dwelt at some length on the historical development of the concept of corroboration in law,

stating at p 324 :-

“The rule adopted in legal systems based upon the civil law that an accused could not be convicted on the

testimony of a single witness never took root in the common law. The only exception was in the case of perjury

crime which was originally punished in the Court of Star Chamber, whose procedure prior to its abolition

was influenced by the civil law. Apart from statute and with this one exception inherited from the practice of

the Star Chamber, ever since trial by jury assumed its modern form it has always been open to juries to

convict an accused of any offence upon the unsupported testimony of a single witness. But common sense, the

mother of the common law, suggests that there are certain categories of witnesses whose testimony as to

particular matters may well be unreliable either because they may have some interest of their own to serve by

telling a false story, or through defect of intellect or understanding or, as in the case of those alleging sexual

acts committed on them by others, because experience shows the danger that fantasy may supplant or

supplement genuine recollection. For brevity I will hereafter refer to evidence of this kind as ‘suspect’

evidence and the witnesses who give it as ‘suspect’ witnesses.

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.”

This last mentioned consideration was identified by Lord Diplock as an important and appropriate historic justification for

the requirement of corroboration in criminal cases in the 19th century. An accused only became a competent witness in this

jurisdiction by virtue of the Criminal Justice (Evidence) Act, 1924. It was clearly desirable therefore to have corroboration

for accomplice evidence in an era when an accused could not himself give evidence, when the death penalty could be

imposed following conviction for some offences and when the rights generally of an accused person under the criminal

process were nothing like as extensive as they are today. Many of the old cases were reviewed in R. v. Baskerville [1916] 2

K.B. 658. As Lord Diplock pointed out in Hester at p 325:-

“An examination of the basic 19th century cases makes it plain that in the judgments ‘corroboration’ was not

used in any other sense than ‘confirmation’. This is the expression actually used in six out of the seven cases

approved in R. v. Baskerville. Even in R. v. Baskerville itself the terms ‘corroboration’ and ‘confirmation’ are

used interchangeably. I conclude, therefore, that the word ‘corroborate’ as used in the proviso to s.38(1) of the

Children and Young Persons Act, 1933, is not a term of legal art, and that the proviso bears no different

meaning from that which it would have borne if the word, commoner in ordinary usage, ‘confirmed’ had been

substituted for it.”

Conflicting views as to the nature of any corroboration required for accomplice evidence are nothing new. Even in the era to

which I have referred there were two schools of thought as to how far corroboration had to go to meet legal requirements.

They were identified by the Irish Court for Crown Cases Reserved in R. v. Sheehan (1826) JEBB. C.C. 54., which is

reported in the following terms in McGrath’s Evidence (2005, Thompson, Roundhall) 141:-

“There were, at that time, two lines of authority on this question. In some cases, the view had been taken that

it sufficed if the credibility of the accomplice was strengthened by the confirmation of some of the particulars

of his story. In others, it had been held that the corroboration had to implicate the accused as well as

confirming the commission of the offence.

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 majority view in Sheehan in favour of a narrow and restrictive definition of corroboration was ultimately the view

approved in R. v. Baskerville [1916] 2 K.B. 658, a decision of the Court of Criminal Appeal in England, in which Lord

Reading enunciated the following theory of corroboration at p. 667:-

“We hold that evidence in corroboration must be independent testimony which affects the accused by

connecting or tending to connect him with the crime. In other words, it must be evidence which implicates

him, that is, which confirms in some material particular not only the evidence that the crime is being

committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of

the corroboration is thus the same whether the case falls within the rule of practice at common law or within

that class of offences for which corroboration is required by statute. The language of the statute, ‘implicates

the accused,’ compendiously incorporates the test applicable at common law in the rule of practice. The

nature of the corroboration will necessarily vary according to the particular circumstances of the offence

charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be

regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to

show that the story of the accomplice that the accused committed the crime is true, not merely that the crime is

being committed, but that it was committed by the accused.

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.”

Following on Baskerville, a failure to instruct a jury in England in accordance with Lord Reading’s exegesis usually resulted

in a conviction being quashed on appeal (Davies v DPP [1954] 1 All.E.R. 507 (H.L.)). Again, it must be stressed that this

did not mean that a conviction could never be recorded in the absence of corroboration as defined in Baskerville, but rather

that the conviction could not stand if the warning had not been given.

The rigid approach evident in Baskerville was softened by two later decisions of the House of Lords in DPP v Hester

[1973] A.C. 296 and DPP v Kilbourne [1973] 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:-

“What is looked for under the common law rule is confirmation from some other source that the suspect

witness is telling the truth in some part of his story which goes to show that the accused committed the offence

with which he is charged”

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”.

In DPP v Kilbourne, Lord Reid adopted a similar approach, stating at p.750:-

“There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful

whether or not to believe a particular statement one naturally looks to see whether it fits in with other

statements or circumstances relating to the particular matter: the better it fits in the more one is inclined to

believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or

circumstances with which it fits in.”

These words of Lord Reid were repeated and approved by Lord Hailsham in DPP v Boardman [1975] A.C. 421 (H.L.).

Subsequently the judicial obligation in England to give a warning was abrogated by section 32(1) of the Criminal Justice and

Public Order Act 1994. The section does not preclude judicial comment about accomplice evidence, but provides instead

that such comment should only be made where necessary on the facts and that its terms be dictated by the circumstances of

the case.

Further afield in Canada, the Supreme Court of Canada decided in Vetrovec v The Queen [1982] 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 [1820] 33 How. St. Tr. 1338 in which Baron Garrow

instructed the jury as follows, at p.1483:-

“..you are to look to the circumstances, to see whether there are such a number of important facts confirmed

as to give you reason to be persuaded that the main body of the story is correct; …you are, each of you, to ask

yourselves this question….Do I, upon the whole, feel convinced in my conscience, that this evidence is true,

and such as I may safely act upon?”

The Supreme Court of Canada identified three difficulties associated with the Baskerville definition at pp.824:-

“The first is that it tends to obscure and, indeed, confuse the reason behind the ‘accomplice warning’. As

noted, the reason for the warning is that the accomplice is potentially untrustworthy, and we therefore desire

other evidence which will accredit his testimony. After Baskerville courts began to frame the issue in terms of

whether the corroborative evidence conformed to Lord Reading’s definition, and ignored the real issue,

whether there was evidence that bolstered the credibility of the accomplice. The result was, in effect, that in

due course ‘corroboration’ became virtually divorced from the issue of the credibility of the accomplice.

Evidence which strengthened credibility was at the same time characterised as not corroborative ‘in law’.

Corroboration became a legal term of art, wholly unconnected with the original reason for the accomplice

warning.

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:-

“… whatever restores our trust in him personally restores it as a whole; if we find that he is

desiring and intending to tell a true story, we shall believe one part of his story as well as another;

whenever, then, by any means, that trust is restored, our object is accomplished, and it cannot

matter whether the efficient circumstance related to the accused’s identity or to any other matter.

The important thing is, not how our trust is restored, but whether it is restored at all (Vol. VII,

para.2059, at p.424)”

These views may be taken as reflective of the proposition, which certainly commends itself to this Court, that it makes little

sense to relate unreliability to classes of persons – be they accomplices, children or complainants in sexual cases, rather than

to the circumstances of cases. It is a form of stereotyping which, in Canada at least, no longer finds favour. Steps in the

same direction have occurred in Australia (Jenkins v The Queen [2004] HCA 57) where the High Court formulated the

obligation on the trial judge as being to give a warning which is tailored to “the evidence and the issues”, noting that certain

accomplice evidence which is unchallenged should not require corroboration.

The principles laid down in Vetrovec v The Queen [1982] 1 S.C.R. 811 were later considered and applied by the Canadian

Supreme Court in R. v Kehler [2004] 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 [1932] I.R. 158, O’Byrne J. stated at p. 165:-

“What constitutes corroboration must depend on the facts and circumstances of each particular case, on the

defence set up by the accused, and on the nature of the question to be determined by the jury … it seems to us

evidence of any material circumstance tending to connect the accused with the crime and to implicate him in

it would appear to us to be corroboration in the circumstances of this case.”(emphasis added)

An important feature evident in this definition is that that which constitutes corroboration may depend in an individual case

on the “defence set up by the accused”. This consideration is of particular importance in the instant case given that the

defence of the applicant at trial, as clarified by his counsel on Day 19/ p.126 of the trial, was that Russell Warren had never

been in Naas and had never been in contact by phone or otherwise with the applicant that day.

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 [2005] 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:-

“Material particular’ simply means a material fact i.e. a fact which in the circumstances of the case and the

issues raised in it is material to the guilt or innocence of the accused of the offence charged. It does not mean

that the corroborative evidence has to corroborate the whole of the evidence of the witness who requires

corroboration. If this were required the evidence of the complainant or accomplice would be unnecessary. The

whole case could be proved by the corroborative evidence. It is sufficient therefore if there is confirmation of

a material part of the witness’s evidence implicating the defendant in the offence.”

Furthermore, circumstantial evidence can constitute corroboration, as noted by Denham J when delivering the judgment of

the court in Director of Public Prosecutions v Gilligan (Unreported, Supreme Court, Denham J., 23 November 2005 at

42). Indeed, it would be virtually impossible ever to have convictions in sexual cases if it were otherwise. Thus, in The

People (A.G.) v. O’Sullivan [1930] I.R. 552, a case of sodomy, corroboration was provided by an independent search

which showed boxes of ointments in the room of the accused. Such ointments could not possibly prove that a crime was

committed, but it did show a material circumstance implicating the accused in the commission of the offence.

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 [1932] 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 [1993] 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. [2001] 3 I.R. 345 (CCA), Murray J.

observed at p.362:-

“Corroborative evidence does not mean that the evidence of the complainant must be corroborated in every

material respect”.

In that case the complainant had given evidence that she had been facing towards the wall at the time the accused entered

the room; the Court considered this to be corroborative of her assertion that she thought the man was her boyfriend.

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 some cases, as here, there are multiple factors relevant to a witness and the issue of corroboration. In this

case, in several instances, witnesses were both in a Witness Protection Programme and were accomplices.

While the law as to corroboration remains the same, such multiple factors will be relevant to the judge

delivering the warning, the jury, and to a court which is itself a trier of fact. The likelihood of the trier of fact

requiring corroboration will rise as the factors multiple.

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.”

This judgment, which has an obvious relevance to the present appeal, expresses important views in relation to witness

protection programmes in terms of both its dangers and its benefits. At p.50 of the judgment Denham J. states:-

“While a Witness Protection Programme is a new feature in Ireland it has been introduced elsewhere. It has

been part of the response to the changing nature of crime. The situations which have given rise to such a

programme are not unique to Ireland, they include organised crime, gang warfare, drug trafficking and

significant funds entering the criminal world by criminal activities such as selling drugs illegally. It has been

determined in other jurisdictions that it was necessary to protect witnesses who give evidence of such

activities. It is not unusual that a witness in a Witness Protection Programme be both a member of the

programme and an accomplice.”

In her conclusion, Denham J. stated (at p.78):-

“In an ideal world there would be no need for witnesses who were in a Witness Protection Programme or who

were accomplices of an accused. The development of a Witness Protection Programme is a reflection of a need

arising in our times. It is a consequence of a society where there are gangs, drug trafficking, violence and

death, and very significant sums of money being made from criminal activity. Many cases, such as this, could

not be brought unless there was evidence from an accomplice or a person in a Witness Protection

Programme.”

There is no need in the context of the present case, to take the step in this jurisdiction of abandoning Baskerville, even if it

was open to this Court to do so, and even if it might prefer to do so, in favour of the model in Vetrovec. The Court is

satisfied that the more nuanced approach adopted in the cases already cited in this jurisdiction already goes some distance to

qualify Baskerville towards a more common sense interpretation of what the requirements of corroboration should be.

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 [2006] 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:-

(i) A weighing scales.

(ii) A series of lists of customers.

(iii) A set of false and blank driving licences.

(iv) A large quantity of slabs of cannabis resin.

(v) A timber box containing plastic bags, white powder and electronic weighing scales.

(vi) A series of boxes which, on Sergeant Ennis’s calculation, could accommodate approximately 150 slabs of cannabis

resin.

(vii) A camouflage pouch designed to carry a 9mm Parabellum calibre machine pistol.

(viii) A number of sports type bags, used by the gang for transporting drugs around in a way which did not display their

contraband nature.

(ix) A set of lists pinned to the wall indicating who was to get what quantity of slabs, or kilos, of drugs on a weekly basis.

(x) Three pairs of garden gloves/working gloves.

(xi) 25 cardboard boxes and two half boxes used to transport cannabis through the Seabridge route in Cork; in addition there

were 26 cardboard lids.

On the 11th September, 1996, a search warrant was obtained to search the home of the applicant at 79, Clifton Court, Ellis

Quay in Dublin. In the course of that search a number of pieces of paper were found which, on a comparison, were

extremely similar to the drug lists in Greenmount. The lists from the applicant’s flat also contained his fingerprint as did a

drug list found in Greenmount.

The evidence of Charles Bowden, which the Special Criminal Court found to be reliable in relation to charges other than the

murder charge, led the gardaí to the Jewish graveyard at Old Court in Dublin where, in a particular grave, there were a large

quantity of rounds of ammunition, a large number of weapons and, most significantly, a camouflage pouch containing a

silencer for use with a machine pistol. The camouflage pouch which was recovered from the premises at Greenmount was

compared with the holder for the gun itself and was noted to be of similar colour, similar material and made for the same

type of weapon. The silencer pouches were also similar and the weapons pouches had similar handles.

Furthermore, the scene of the murder of Veronica Guerin was linked with the arms dump at Old Court. Detective Sergeant

Ennis removed a number of bullets from the car belonging to the deceased victim. He also obtained possession of a number

of the bullets, and part bullets, from the body of the deceased. These bullets were of a distinctive type. They were .38 inch

or .357 inch magnum calibre semi-wadcutter bullets which could be fired from either a .38 special calibre firearm or a .357

magnum calibre firearm. The rounds of ammunition were not pointed. These were reloaded bullets, and not factory loaded

bullets. From the grave at Old Court Detective Sergeant Ennis recovered six rounds in a supermarket bag which had the

same characteristics as the bullets recovered from the body of the deceased and from the car of the deceased. In addition,

there was a tray designed to hold 50 of such bullets found, twelve of which were missing. The evidence given by Bowden

was of the loading of the murder weapon with six bullets and of putting six aside. The six which had been put aside, together

with 38 bullets out of the rack of 50, were found in Old Court.

In Old Court there were five pistols, a number of silencers, a large quantity of ammunition, six rounds of ammunition which

was separate and the same as the ammunition used for killing the victim. The 38 bullets were left in a rack of 50 bullets.

The camouflage/carrying pouches for the guns and silencers linked with identical items found in the Jewish cemetery at Old

Court.

The court heard evidence from Charles Bowden that all of these weapons were kept in good condition and regularly

cleaned. He gave evidence that the gun used in the murder was cleaned before the killing and disposed of afterwards.

As already noted, a fingerprint made by the applicant was found on one of the drug customer lists pinned to the wall at

Greenmount. His right thumb print was also found on one of the false driving licences found in Greenmount.

The court had more than the evidence of Charles Bowden to indicate that the applicant was a member of the drug

importation gang. Evidence of the association of the applicant with Shay Ward and Charles Bowden was also given by

Garda Moran, who testified that on the 1st October, 1996, he observed these men lunching together at a restaurant in

Sundrive Road Shopping Centre. They were laughing and joking and constantly making and receiving mobile telephone

calls. Charles Bowden also described in evidence an occasion in early October, 1996 where he was invited to Paul Ward’s

house at Walkinstown Avenue when there was, as he put it, “a panic on to get money counted”. This involved Peter

Mitchell, the applicant, Paul Ward and Shay Ward and Brendan Fagan and another man all of whom were in the house

counting money.

There was also the evidence of finding the motor bike in the river Liffey in the broken down state which, on Russell

Warren’s account, John Gilligan and the applicant were keen to bring about and which the applicant stated he would deal

with. There was evidence of threats made to Russell Warren by John Gilligan in the presence of the applicant from which

the applicant at no time distanced himself. The evidence placing the applicant in Greenmount was further evidence of both

involvement and motive for the killing of Veronica Guerin. All of this evidence was before the court. Many of these items of

evidence were, when taken together, capable of amounting to circumstantial evidence, to which of course the court was

entitled to have regard.

In particular, the court was entitled to have regard to the evidence of motive for the killing of Veronica Guerin. As evidence,

motive is always relevant. In this case there was clear evidence of the hatred exhibited by John Gilligan towards Veronica

Guerin because of her journalistic endeavours in exposing those involved in drug dealing and drug importation, and in

particular, John Gilligan and his gang. Ms. Guerin was also to be the principal witness against John Gilligan arising out of an

alleged assault perpetrated upon her by John Gilligan.

John Dunne also gave evidence that he was introduced to the applicant in 1994 and met him on ten or twelve occasions

thereafter when the applicant collected the boxes containing the drugs at the Ambassador Hotel. There were about 50 or 60

shipments between 1994 and 1996. John Dunne identified the boxes recovered in Greenmount as the same boxes which

passed through his hands. John Dunne also stated that he spoke to the applicant frequently on the phone in addition to these

meetings. He also identified the applicant during the course of the trial at Green Street. This Court is satisfied that that

identification was in fact a form of recognition evidence in the circumstances.

The Special Criminal Court considered that the evidence of Charles Bowden which he gave concerning his own role and the

role of others in drug distribution should be accepted on the basis that “beyond reasonable doubt it is accurate and

correct”. As noted by the Court in relation to the evidence of Charles Bowden:-

“…there are aspects of his evidence which were never severely challenged by the defence and where the Court

is satisfied beyond all reasonable doubt that it should accept as being true. They are as follows:-

The Court is satisfied that while carrying out his function as a distributor of drugs, Charles

Bowden acted under the direct control of the accused.

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 adequate and appropriate evidence before it upon which to make

these findings. It is of some significance in the hearing of this appeal that no challenge of a specific nature has been made to

the propriety of the convictions for the drug related offences, other than a general attack based on the suspect nature of the

evidence of Charles Bowden. It is not, for example, suggested in any way that the thumb print of the applicant found at

Greenmount could not constitute corroboration in relation to the drug related offences.

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.