Court of Criminal Appeal dismisses appeal against conviction for IRA membership based on cumulative evidence and opinion.

THE COURT OF CRIMINAL APPEAL

Macken, J. 237/04 & Budd, J. 243/04

De Valera, J.

Between:

The People at the Suit of the Director

of Public Prosecutions

And

NIALL BINEAD and

KENNETH DONOHUE

Applicant

Judgment of the court delivered on the 28th day of November 2006 by Macken, J.

____________________________________________________________________

Each of the Applicants was charged that on the 10th October 2002 he was a member of an illegal organisation, that is

to say, the Irish Republican Army, otherwise known as the IRA, otherwise known as Oglaigh na hEireann, contrary to

S.21 of the Offences Against the State Act 1939, as amended by S.2 of the Criminal Law Act 1976. The trial took

place before the Special Criminal Court (O’Donovan, J., J. Matthews and D.J. Hamill), over a period of eight days in

October 2004, and the trial court delivered judgment on the 18th November of that year. Both Applicants were

convicted of the charges, and each was sentenced, on the 30th November 2004, to four years imprisonment.

From those convictions the Applicants seek leave to appeal against conviction. The applications, which are being dealt

with together, originally came on for hearing on the 25th November 2005. Shortly after the applications were opened

they were adjourned pending a decision of the Supreme Court in an appeal in which a certificate for leave to appeal

had been granted pursuant to s.29 of the Courts of Justice Act 1924, on the basis that the judgment in that case would

be likely to be of relevance to these applications. Judgment in DPP v Kelly (unreported, The Supreme Court, 4 April

2006), was duly delivered, and these applications were then heard on the 7th July 2006. The court will return to the

judgment in DPP v Kelly in due course.

The Background Facts

The events which triggered the charges in the trial took place in October 2002 at Corke Abbey, Bray, Co. Wicklow.

To understand the case made by the prosecution at the trial, and the arguments for the Applicants as well as the

response of the Director of Public Prosecutions on these applications, a brief understanding of those events as

accepted by the court is essential. Corke Abbey is located at the northern end of Bray. There is a housing estate there.

An off-duty detective garda attached to the Special Detective Unit lived there and noticed suspicious activity on the

night of the 10th October 2002. He contacted Shankill Garda Station about this. According to the evidence he saw

three vehicles. They were, a blue Nissan Almera registration number 98-D-13365, a yellow Ford Transit Van

registration number 01-D-78522 and a dark Nissan Micra registration number 95-D-34286 (originally wrongly noted

by him as being 95-D-34285). In the period from shortly after 11.00 p.m. up until midnight he watched the

movements of the cars, and noticed the occupants of the three cars acting in what appeared to be a coordinated

manner. At one stage five men got out of the Nissan Micra, three of them got into the back of the Yellow Transit Van,

where there was already a driver and a man in the passenger seat. The other two got back into the Nissan Micra and it

was driven off. A taxi arrived and its sole passenger got out and joined the others. These six men were at one stage

gathered together on the path at the side of the Transit van. An unmarked garda vehicle manned by two gardaí, Garda

Twomey and Garda Mannion from Bray Garda Station arrived in response to the call made by the off-duty detective

garda, and they approached the van. At that stage, one of the six men walked away from the group, and continued

walking along Corke Abbey Avenue, through the estate. He was not identified, either then or later. The garda in

evidence stated that he had to concentrate on the events going on at the van, four of the remaining five men having got

into the back of the transit van and one into the driver’s seat. The Nissan Almera remained on the estate parked in

close proximity to the transit van.

One garda spoke to the driver of the transit van who gave a false name. While speaking with him the gardaí noted a

black balaclava and the handset of a portable radio on the floor of the van. The other garda opened the door to the

rear compartment of the van. There he discovered the other four men, sitting on the floor, as well as a number of

items, including: a lump/sledge hammer; two pickaxe handles; a torch; eight plastic bags of cable ties; black balaclavas

with single or double openings on the face; two identical navy blue ties, resembling those worn by members of An

Garda Siochana; a sky blue shirt marked “Security”; a yellow jacket with “Garda” inscribed on the left breast; black

woollen gloves and plastic industrial gloves; three walkie talkie type radios; rolls of masking tape; and election posters

in respect of a man called O’Snodaigh. Two of the men in the back of the van were dressed in clothing which gave the

appearance of, and made them look like, members of An Garda Síochána, including yellow fluorescent jackets on

which were printed or marked “GARDA”. The gardaí subsequently examined the Nissan Almera car. In it were found

the following: the genuine registration plates for the car; false registration plates corresponding with the tax and

insurance discs on the car; a stun gun; a beacon like a garda blue flashing light; a canister of CS gas; and black binding

tape. The five men who remained in Corke Abbey out of the original eight, and who were in the Ford Transit Van,

were arrested and charged with being members of an illegal organisation. They were found guilty, following a

judgment which post-dates the date of judgment in the present case. Those are the October 2002 Corke Abbey events

to which further reference will be made in this judgment.

As to the present case, according to the evidence, the yellow Ford Transit Van was subsequently traced back to its

owner, a Mr. Murphy, who gave evidence at the trial that he had lent the van for use by, inter alia, members of Sinn

Fein for electioneering purposes. The Nissan Almera car was traced back to a Mr. Michael Byrne, of Crumlin who, on

the 11 December 2002, reported the car to the gardaí as having been stolen. The car had false licence plates on the

10th October 2002 at Corke Abbey, and corresponding tax and insurance discs. The owner of an identical Nissan

Almera car had previously, on the 6th October 2002, reported that his car had been broken into and the tax disc as

well as the insurance disc, but nothing else, stolen. The registration plate on the car corresponded to the stolen tax and

insurance discs. The Nissan Micra car, which had left Corke Abbey after leaving off three of the five men who were in

it, was traced back to a Ms. Kerry Dwyer, the partner of Kenneth Donohue.

On a subsequent search of the home of Kenneth Donohue on the 24th October 2002 a piece of paper with a mobile

phone number and a drawing of what appeared to be a car key were found The phone number was that of the above

Michael Byrne, the owner of the Nissan Almera. Also found was the telephone number of a “Whacker” Brennan,

whom the court was satisfied was Patrick Brennan, the man in the driver’s seat of the Ford Transit van during the

Corke Abbey events, later charged and found guilty of membership of an illegal organisation.

It will be recalled that in the Nissan Almera was found, inter alia, black binding tape. This black binding tape was

examined and found to contain what was accepted by the defence as being a print which matched the right thumb print

of Niall Binead. During a subsequent search of his home on the 20th December 2002, a number of documents were

seized from a small briefcase. Some of these were on standard size paper, others on “post it” notes and some on what

seemed to be cigarette paper. All contained notes. The notes on the smallest bundle of documents referred to the

actions and movements of a number of elected politicians, members of Dail Eireann from different political parties.

The other, more numerous bundles, had notes concerning the actions or movements and/or associations of people

engaged in one or other form of anti-social behaviour, some minor and some of a very serious criminal nature.

The Trial

At the trial, the prosecution relied on several separate matters, called “strands” in the judgment of the trial court, in

support of its case against the Applicants. These were, firstly, the belief evidence of a member of the Garda Siochana

above a certain rank, in this case the belief evidence of Chief Superintendent Philip Kelly. In evidence he stated his

belief that the Applicants were, prior to the events at Corke Abbey detailed above, and independently of those events

or of any matters discovered following their arrests, members of an illegal organisation. Secondly, evidence associating

each of the Applicants with each other and with the activities at Corke Abbey on the 10th October 2002, which the

prosecution contended were activities of a type normally or frequently associated with the IRA and which it submitted

supported or corroborated the above opinion evidence. Thirdly, evidence that, following the searches referred to

above, documentation was found which was said to be of a type one might expect to find in the possession of an

active member of an unlawful organisation such as the IRA, and which was supportive of the opinion evidence. Lastly,

inferences it argued could properly be drawn pursuant to the provisions of Section 2 the Offences Against the State

Act of 1998 (“the Act of 1998”), arising from the failure by the Applicants to answer material questions put to them in

the course of their detention.

As to the defences at the trial, neither Applicant seriously challenged the accuracy of the evidence of witnesses to the

Corke Abbey events or the evidence relating to the several motor vehicles involved and their contents. Nor did they

challenge seriously the material found on the searches of their homes. Rather they challenged the conclusions to be

drawn from the above described evidence. They challenged seriously both the legal consequences flowing from the

admission of the evidence of the Chief Superintendent as to his belief, as well as the statutory issue of the inferences

permitted to be drawn by the Court.

On the question of the belief evidence of the Chief Superintendent, counsel for both defendants had argued that since

the defence had no opportunity to investigate whether or not there was any reasonable basis for the belief, it was a

negation of justice and belied the presumption of innocence with which an accused is cloaked. In the absence of a

mechanism for investigating the reliability of the Chief Superintendent’s belief, there was, it was argued, an imbalance

in the trial in favour of the prosecution and a lack of equality of arms, a stated requirement of the European Court of

Human Rights when interpreting Article 6 of the European Convention on Human Rights.

The approach of each Applicant to the resolution of these contended for deficiencies was, however, different. Mr.

Finlay, senior counsel for Niall Binéad, submitted that the court must appoint a separate counsel or advocate to assess

the material underlying the Chief Superintendent’s belief and report on this, relying on English authority. In the

alternative, the court should itself consider the material and come to a view on it, relying on the decision of the

Supreme Court in Paul Ward v Special Criminal Court & Another [1999] 1 I.R. 60. On the other hand, Mr.

Devally, senior counsel for Kenneth Donohue, did not adopt these arguments, resting his case on a different argument,

namely that the court is at all times obliged, by means of the application of appropriate principles germane to criminal

adversarial proceedings, such as these, to ensure that a fair trial within the meaning of the Constitution and of Article 6

of the Convention is guaranteed, relying, inter alia, on the case of Edwards and Lewis v the United Kingdom [2003]

15 E.H.R.R., at p. 417. He argued primarily that the prosecution must either withdraw the evidence of the Chief

Superintendent, or the State must provide a mechanism (but without specifying a particular mechanism) for ensuring

the fairness of the trial. In particular counsel for Kenneth Donohue objected to any review by the Court, as

adjudicators of guilt or innocence, of material underlying the belief evidence of the Chief Superintendent, on the

grounds that to do so would be unlawful, and contrary to the case law of the European Court of Human Rights.

The Judgment

In a lengthy and detailed judgment, the trial court recognised the four strands relied upon by the prosecution. It first

dealt with the special applications made by each defence counsel concerning the extent, if any, to which Chief

Superintendent Kelly could be subjected to cross-examination as to the sources upon which he based his belief. This

witness had stated that his belief was based on confidential information available to him, both oral and written, from

sources within and outside An Garda Siochana. He claimed privilege in respect of these sources on the grounds that

were he to disclose them this would endanger the lives of people and hamper ongoing security measures in relation to

State security.

In dealing with the arguments presented, the trial court, in its judgment, invoked the provisions of Section 3(2) of the

Offences Against the State (Amendment) Act, 1972 stating:

“Where an officer of An Garda Siochana, not below the rank of Chief Superintendent, is giving evidence

in proceedings relating to an offence under Section 21 of the [Offences Against the State] Act of 1939

states that he believes that an accused person was, at the material time, a member of an unlawful

organisation, a statement [to that effect] shall be evidence against him.”

The trial court then considered and analysed all of the jurisprudence upon which the parties relied, inter alia, the case

law of the European Court of Human Rights, and its effect, according to the trial court’s view, on the provisions of

Article 38 of the Constitution. It found that, on an analysis of the case law of that Court, although some of it was of

assistance, that court did not appear to have considered the question of what, in this jurisdiction, is known as

“informer privilege” or the implications for, inter alia, the life of persons or the security of the State in the event that

the sources were divulged. It found that it did not have any jurisdiction to appoint a special advocate, as argued for by

counsel for Niall Binéad. The trial court determined that in view of the obligations arising pursuant to Article 6 of the

above Convention, it should, following the ruling as to the discretion vested in the court itself according to the decision

in Ward v DPP & The Special Criminal Court, supra., review the materials upon which the Chief Superintendent

relied. The trial Court decided that it should adopt this course in the present case irrespective of the wishes of the

defence. Accordingly, it required the Chief Superintendent to produce to the Court all the relevant documentation upon

which he relied. The Court, having reviewed this documentation, stated as follows:

“On a perusal of those files, the court (is) satisfied that the Chief Superintendent had adequate and

reliable information upon which he could legitimately form the opinion that each of the accused was a

member of the IRA. Moreover, there was nothing in any of the files which, in the view of the court, would

assist the defence in proving the innocence of their clients.”

The trial court rejected the submission of counsel for Kenneth Donohue that the prosecution was obliged to withdraw

elements of its case which relied on the belief evidence of the Chief Superintendent, as well as the submission of

counsel for Niall Binéad that the defence should be informed by the prosecution of the detail of the material contained

in the files which had been made available to the trial court. Finally the trial court concluded:

“.. the court first of all weighed and considered the belief evidence of Chief Superintendent Kelly, and

while doing so, specifically excluded consideration of any information to which the court had become

privy as a result of perusing the files relating to the two accused which had been produced by the Chief

Superintendent.”

The trial court found that, in view of his particular status in relation to security of the State and monitoring of

subversive organisations, the Chief Superintendent’s demeanour while giving evidence, his relevant experience for a

period of over 25 years, and its assessment of him as a reliable and honest witness, the evidence of Chief

Superintendent Kelly was such that the court was persuaded beyond any doubt as to the reliability of his belief that the

Appellants were at the time in question, members of the IRA. Nevertheless, the trial court indicated that it was not

disposed to convict either accused solely on the basis of that belief evidence, but would do so only if it was satisfied

that there was evidence which supported or corroborated it. It found the belief evidence of the Chief Superintendent to

be adequately supported or corroborated by the facts established by the prosecution, when considered cumulatively,

and when taken together with the inferences the Court drew from the failure of each accused to reply to relevant

questions posed.

The Grounds of Appeal

As to Binead, he has sought leave to appeal on the basis, in essence, that the learned trial court wrongly received and

examined confidential information for the purposes of establishing the reliability of the opinion evidence without

disclosing the material to the defence, and upon which material it then relied in convicting him. Moreover, there was

no opportunity to test the reliability of the opinion evidence of the Chief Superintendent, and the inability to do so

constituted a breach of the Applicant’s constitutional rights and of the provisions of Article 6 of the European

Convention on Human Rights. The trial court had wrongly failed to appoint a special counsel or advocate to determine

the Chief Superintendent’s claim to privilege. In addition, there was no evidence which could corroborate the belief

evidence of the Chief Superintendent, nor was the trial court entitled to draw any inferences from the demeanour of

Niall Binéad in light of his right to remain silent.

Counsel for Kenneth Donohue also seeks leave to appeal on several grounds. In summary, these grounds concern: the

reception and review of the material by the Court when it had not been seen by the defence: a claimed infringement in

relation to Article 38 of the Constitution as well as Article 6 of the European Convention on Human Rights: the

absence of corroborative evidence; as well as the description and the characterisation by the trial court of the

demeanour of the Applicant during interview,: and the ambit of inferences permitted to be drawn, having regard to his

right to silence.

The Evidence of the Chief Superintendent

By far the most important ground raised by each Applicant is that which concerns the belief evidence of Chief

Superintendent Kelly. The reason the hearing of these applications was adjourned was to await the outcome of the S.

29 appeal to the Supreme Court in the case of DPP v Kelly, supra. It would be usual at this point to summarise the

submissions made to this court by counsel on behalf of the applicant and of the respondent. However, the effect of the

judgment in the latter case is such that some aspects of the submissions made are rendered irrelevant or ineffective

while others remain outstanding. It is intended therefore to deal with that judgment first.

The legal effect of a restriction on the entitlement to cross-examine a garda witness of appropriate rank as to his belief

that an accused was a member of an illegal organisation was considered in detail by the Supreme Court in that case.

That appeal was heard pursuant to a certificate issued by the Court of Criminal Appeal on a specified point of law, in

accordance with the provisions of Section 29 of the Courts of Justice Act 1924. The specified point of law certified

was as follows:

“Are the requirements of Article 38 of the Constitution satisfied where an accused is precluded from

enquiring into the basis of the evidence of belief given against him at his trial pursuant to the provisions of

the Offences Against the State Act, 1939, as amended, on a charge of membership of an unlawful

organisation before the Special Criminal Court.” (emphasis added).

The Supreme Court was not, in that case, concerned with the admissibility, per se, of the belief evidence of the Chief

Superintendent, nor with the question of his entitlement to plead privilege in respect of his sources. It is clear from the

judgment that the Supreme Court considered, and this court agrees, that the issue of the admissibility of such evidence

was already disposed of in the case of O’Leary v Ireland, [1993] I.R. 102, where Costello J. (as he then was) in the

course of his judgment in respect of the provisions of s.3(2) of the Act of 1998, stated:

“What this section does is to make admissible in evidence in certain trials statements of belief which

would otherwise be inadmissible. The statement of belief if proffered at the trial becomes “evidence” by

virtue of this section in the prosecution case against the accused. Like other evidence it has to be

weighed and considered and the section cannot be construed as meaning that the court of trial must

convict the accused in the absence of exculpatory evidence. The accused need not to give evidence, and

he may ask the court to hold that the evidence does not establish beyond a reasonable doubt that he is a

member of an unlawful organisation. Should the court agree he must be acquitted.”

The issue considered in DPP v Kelly, supra, was whether, as here, the limitation on the ability to cross-examine as to

the sources for the belief evidence when privilege is claimed in respect of such sources, rendered the trial unfair, within

the meaning of Article 38 of the Constitution. In the course of his judgment in that case, with which the majority of the

court agreed, Geoghegan, J. stated:

“Counsel for the Director of Public Prosecution has come forward with two possible constructions of

section 3(2). The first and the one favoured by the Director is that while section 3(2) permits evidence of

the belief, it does not permit evidence about the basis for the belief. It is argued on behalf of the Director

of Public Prosecutions that a contrary interpretation would appear to defeat the purpose of the section

partly on the basis that it might defeat informer privilege and partly on the basis that in practice it might

involve the admission of hearsay evidence. The second and alternative construction put forward by the

Director of Public Prosecutions is that the subsection at least authorises the giving of evidence about the

basis for the Chief Superintendent’s belief but not to the extent that it interferes with or defeats a

legitimate plea of privilege.

Even though the first of those two alternative interpretations is strongly favoured by the Director, I

prefer the second. Conceptually, and possibly in practice in some cases, evidence of the basis for the

belief of the Chief Superintendent might not infringe any protection of informers as it might not be based

on informers. As the normal rights of an accused are being infringed, it would seem to me that there

must be a constitutional requirement that such limitation be kept to a minimum. It would be

disproportionate to adopt the interpretation of the subsection favoured by the Director of Public

Prosecutions. I believe therefore, that the Director’s alternative interpretation is the correct one.”

And further:

“It is essential to consider the purpose of section 3(2) of the 1972 Act. Prima facie if the Garda Síochána

have reliable information that somebody is a member of a prescribed organisation there might be

nothing to prevent them marshalling the necessary witnesses to give direct proof of this. However, it is

perfectly clear that the legislation has been passed in the context of preserving the security of the State

and the legitimate concern that it will not in practice be possible in many, if not most cases, to adduce

direct evidence from lay witnesses establishing the illegal membership. Such witnesses will not come

forward under fear of reprisal. The Special Court itself was established to avoid the mischief of juror

coercion and intimidation. In relation to all anti-terrorist offences, as a matter of common sense, there

would be equal apprehension about intimidation of witnesses. It is a reasonable inference to draw that

the subsection was enacted out of bitter experience. It is carefully crafted ensuring that the belief

evidence must come from an officer of An Garda Síochána not below the rank of Chief Superintendent.

This is with a view to establishing trust and credibility as far as possible. Counsel for the appellant

accepts the concept of informer confidentiality but any extensive probing in relation to the basis of the

information irrespective of whether names are requested or not may inevitably undermine the protection

of the informer by affording clues to his identity. Even without the statutory provision, informer privilege

may involve more than merely refusing to divulge the name of an informer. Surrounding evidence which

would be likely or might tend to disclose the identity of the informer would itself be protected by the

privilege in the sense that it may not be allowed to be adduced under cross-examination. I have no doubt

that in so far as Mr. Finlay was limited in his cross-examination of Chief Superintendent Kelly,

permission for this limitation was inherent in the subsection itself which enjoys the presumption of

constitutionality.”

…

“It has been the practice apparently of the Special Criminal Court not to convict on the belief evidence

alone. In my view, that practice is commendable though not absolutely required by statute. There may be

exceptional cases where the Special Criminal Court in its wisdom would be entitled to convict on the

belief evidence alone. Equally commendable is the practice of the Director of Public Prosecutions of

which the court has been informed, not to initiate a prosecution based solely on the belief evidence.

These self-imposed restrictions by the Special Criminal Court and by the Director of Public Prosecutions

are with a view to ensuring a fair trial.”

In applying these findings to the issues arising in the case before it, the judgment states:

“I agree with the view taken by the Court of Criminal Appeal in this case that the balancing of the

conflicting rights and interests can only be determined by the court of trial. The Chief Superintendent’s

belief has no special status but is merely a piece of admissible evidence. As the Court of Criminal

Appeal pointed out, although the Special Criminal Court was entitled to take into account the fact that

the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into

account that the appellant made a false statement to the gardaí and the other corroborating evidence of

other witnesses particularly the evidence of Mr. David Mooney which was accepted.”

The separate judgment of Fennelly J. did not dissent in any way from the above views.

Before dealing with the application of the foregoing jurisprudence to the facts established in the present case it is

necessary to consider also the related arguments put forward on behalf of each Applicant on Article 6 of the European

Convention on Human Rights, which the court will now consider. In DPP v Kelly, supra., the Supreme Court did not

deliver any majority judgment on Article 6 of the Convention or on the jurisprudence of the European Court of

Human Rights in relation to that Article. That was presumably because it was not thought to be necessary, having

regard to the terms of the certified question and the majority judgment in relation to Article 38 of the Constitution.

This Court gains considerable assistance from the judgment of Fennelly J., in that case in reaching its conclusions in

respect of the application of the jurisprudence of the European Court of Human Rights on Article 6 in the present case.

It is not necessary to recite separately the arguments made in respect of Article 6 in the case of DPP v Kelly, supra.,

since those raised concerning Article 38 of the Constitution are, for the most part, also those invoked in the context of

Article 6, save that the Applicants allege that the right provided for in Article 6 to examine witnesses or to have

witnesses examined, must include the right to cross-examine Chief Superintendent Kelly as to the sources for his

belief. In the course of his judgment in the above case, Fennelly, J. considered in detail the case law of the European

Court of Human Rights and, having analysed it, concluded that, while in the past that Court had found a violation of

Article 6 of the Convention by reason of the absence of the right to cross-examine anonymous witnesses, such as in

the case of Kostovski v Netherlands [1989] 12 EHRR, which report was also cited in the present case, nevertheless

that Court had subsequently modified its stance. This was apparent from the subsequent decision in Doorsen v

Netherlands, 22 EHRR 330, in respect of which Fennelly J. stated as follows:

“According to its subsequent decision in Doorsen v Netherlands 22 EHRR 330, these paragraphs should

be read as implying that the use of anonymous statements at trial is not, in all circumstances,

incompatible with the Convention. It is, however, difficult to avoid the conclusion that it modified its

stance in Doorsen. There the court said (paragraph 70 of the judgment):

“It is true that Article …does not explicitly require the interests of witnesses in general, and

those of victims called upon to testify in particular, to be taken into consideration. However,

the life, liberty or security of person may be at stake, as may interests coming generally within

the ambit of Article 8…of the Convention. Such interests of witnesses and victims are in

principle protected by other, substantive provisions of the Convention, which imply that

Contracting States should organise their criminal proceedings in such a way that those

interests are not unjustifiably imperilled. Against this background, principles of fair trial also

require that in appropriate cases the interests of the defence are balanced against those of

witnesses or victims called upon to testify.”

And further, Fennelly, J stated:

“In subsequent years the European Court has adhered to the principle that the fair administration of

justice holds an important position in a democratic society and that measures restricting the rights of the

defence should be restricted to what is strictly necessary (see, for example, Mechelen v Netherlands 1997

25 E.H.R.R. 647; Rowe v United Kingdom 2000 30 E.H.R.R. 1). Recognition of the legitimate public

interest in protecting police sources of information or the safety of informers or witnesses has led to the

acceptance of the possible justification of the withholding of relevant information from disclosure to the

defence.”

For the purposes of this judgment, the Court does not have regard to the submission of the Respondent to the effect

that the argument made in the course of the trial in the Special Criminal Court on this aspect of the matter was not

quite the same as that now made in the course of this application. While normally this might constitute a valid

objection which, on the case law, could be successfully raised, the issue for consideration by this court, whether

pursuant to the provisions of Article 38 or by the invocation of Article 6 of the European Convention on Human Right

is sufficiently important to have it fully dealt with.

Conclusions on DPP v Kelly

This court is satisfied that a restriction on the ability to cross examine the garda witness in question arising from his

claim to privilege in respect of the underlying sources of information upon which his belief was based arising from a

threat to life or to the ongoing security of the State, does not, ipso facto, on the basis of Irish case law, or that of the

European Court of Human Rights, constitute a failure to comply with the Constitution, or with Article 6 of the

European Convention on Human Rights. Having regard to the majority judgment in DPP v Kelly, supra, in the context

of Article 38 of the Constitution, as well as to the above analysis in the judgment of Fennelly J. on to the jurisprudence

of the European Court of Human Rights on Article 6 of the Convention, this court is satisfied that a restriction on

cross-examination may be permitted. The majority decision of the court in DPP v Kelly, supra., clearly found that the

limitation on the right to cross-examination was necessary, and that it was properly counterbalanced in that case by

matters not dissimilar to those which also arise in these proceedings, being other matters which contribute to the court

ensuring a fair trial.

Submissions of Applicants post DPP v Kelly

Mr. Finlay on behalf of Niall Binéad accepts the findings of the Supreme Court in the latter case. He argues, however,

that the case of DPP v Kelly, supra, does not answer all the issues raised in these proceedings. It is silent on what is to

occur in relation to the content of any document which may form the basis for the opinion of the Chief

Superintendent. In his submission, it is still necessary, pursuant to his analysis of Ward v Special Criminal Court,

supra, for this issue to be resolved, as well as his claimed entitlement to the appointment of a special advocate to

examine and report on such documents. As to the inferences drawn by the trial court, he argues that the right to silence

which Niall Binéad was entitled to invoke, is not set aside in any way by the provisions of S.2 of the Act of 1998. An

accused is always entitled to remain silent, and the trial court had wrongly considered that this was not so. As to the

associations found by the trial court to exist, and the materials discovered on searches, he argues that the trial court

had correctly pointed to these having a possibly innocent explanation. That being so, the trial court was not entitled to

consider the same evidence as being something different, namely, supportive or corroborative of the belief evidence of

the Chief Superintendent.

On behalf of Mr. Donohue, Mr. Devally argues from a different position. The real issue, in his submission, is that any

impingement on the right to cross-examine the Chief Superintendent must be minimised, in accordance with the

judgment in DPP v Kelly, supra. He acknowledges that the European Court of Human Rights has itself looked at files.

Mr. Finlay, for Niall Binéad, had invited the court to do that at the trial but the prosecution had not agreed to this

course. As counsel for Kenneth Donohue, Mr. Devally had objected to this approach, and in his submission, the trial

court should not have looked at any files, due to the significant dangers inherent in receiving or reviewing them. The

sole reason for viewing such material, he submitted, should be to see if it would or could assist a defendant. The trial

court had, however, instead stated that its perusal of the files was, iinter alia, for the purposes of establishing whether

the belief evidence of the Chief Superintendent was reliable. Mr. Devally argues that this went beyond the limits of

what was legally permitted. In considering any such material, of which the defence is wholly unaware, the weight to be

attached to the belief evidence by the court was dependent upon material arising outside the confines of the trial itself.

The European Court of Human Rights appeared, he argued, to have had particular regard in its case law to the

requirement that one judge should receive or monitor material and another determine guilt or innocence, a situation

quite different to that which occurred in the present trial. A judge trying the fact of guilt or innocence should not see

evidence which is or may be determinative of guilt. Further, he submits that the Supreme Court in DPP v Kelly,

supra., considered it inappropriate for the trial court to look at such material. He argues, finally, that the Special

Criminal Court, being the trial court, had no jurisdiction to do what it did, since its role is defined by statute and it has

no outside, external or additional jurisdiction above and beyond its statutory jurisdiction.

As to the remaining evidence, the court had also misdirected itself in relying on the same. That evidence consisted of

possession of a car from which three persons had exited who remained in Corke Abbey; a Rayovac torch found in the

transit van; the fact that Kenneth Donohue was found, on a search of his home, to have the phone number of Patrick

“Whacker” Brennan, who was his cousin, as well as the phone number of Michael Byrne, the owner of the Nissan

Almera car, and he had associated with Niall Binéad. Based on these materials, in a trial before the ordinary courts,

counsel submits that the evidence, being of such a tenuous nature, there would have been a direction given to a trial

jury. Leaving aside the opinion evidence of the Chief Superintendent and the Section 2 inferences which were drawn,

there was wholly inadequate factual evidence of a supportive or corroborative nature. While Mr. Devally conceded

that S.2 of the Act of 1998 encroaches on the right to silence by providing that inferences may be drawn from an

absence of responses, he contends that comment or reference to conduct, as opposed to the absence of responses,

does not come within the ambit of the section. Here the judgment referred, not just to a failure to respond, but also

wrongly drew inferences from the Applicant’s apparent demeanour, and thereby misdirected itself in law.

Findings of this Court:

In dealing with these applications, it is appropriate to dispose of the submissions concerning the general evidence first.

In that regard, it is important to understand the statutory background against which these matters are to be considered.

Section 3 of the Offences against the State (Amendment) Act, 1972 as amended by s.4 of the Act of 1998 provides as

follows:

“(1)(a) Any statement made orally, in writing or otherwise, or any conduct by an accused person

implying or leading to a reasonable inference that he was at a material time a member of an unlawful

organisation shall, in proceedings under s.21 of the Act of 1939 be evidence that he was then such a

member.

(b) In paragraph (a) of this subsection ‘conduct’

includes –

(i) Movements actions activities or associations on the part of the accused person,

and

(ii) Omission by the accused person to deny published reports that he was a

member of such an unlawful organisation, but the fact of such denial shall not by

itself be conclusive.”

The Association with Events at Corke Abbey

It is quite clear that the events at Corke Abbey, Bray, and an association with those events, as well as the contents of

the vehicles and the vehicles themselves, and the materials found during searches, as well as the movements

surrounding the meetings between the two Applicants at or about the time of the execution of a search warrant in

respect of the second Applicant’s place of residence, are all matters which come within the ambit of the phrase

“movements actions activities or associations on the part of the accused person” found in the above provision.

Neither of the Applicants was found to have been present at the Corke Abbey Estate, and neither was charged with

being there. The trial court found that even if they were not, both Applicants were nevertheless associated with the

events at Corke Abbey. As to Kenneth Donohue, it found that he was linked into those events in three specific ways.

Firstly the Nissan Micra, registered in the name of his partner, was entrusted to him by her shortly prior to the time of

the events in question. Secondly, the car had been observed by members of the Garda Siochana at Corke Abbey

before midnight on 10th November 2002 with five male occupants, and if he was not himself among those persons,

then the movements of the car were with his knowledge or acquiescence. Thirdly, in the Ford Transit van was found,

on examination, a Rayovac torch, and in the Nissan Micra, on examination, plastic bubble wrap matching that usually

found on such a torch, together with a receipt for the purchase of such a torch. This receipt was from a shop called

Woodies in Tallaght which showed the time and date of purchase as 10.45 pm on the 10th October, the evening of the

events in question. On a subsequent search of his home a piece of paper with a mobile phone number and a drawing

of what appeared to be a car key, was found The phone number was that of Michael Byrne the owner of the Nissan

Almera. Also found was the telephone number of “Whacker” Brennan, the man in the driver’s seat of the Ford Transit

van during the Corke Abbey events, who was later charged.

As to Niall Binéad, the trial court found that his association with the Corke Abbey events was also proven. Firstly,

there was evidence - accepted by him - of his thumbprint on a roll of black binding tape found in the Nissan Almera

with the false registration plates, in which were also found the other items mentioned and described previously. He was

found by the trial court to be associated with Michael Byrne, the owner of the Nissan Almera car, as well as with

Patrick Brennan (the same man as “Whacker Brennan” mentioned in the preceding paragraph) and another person

who was dressed in attire similar to that of members of An Garda Siochana, both being among the five persons

arrested at the Corke Abbey scene on the 10th October 2002.

Moreover, the trial court found Niall Binead and Kenneth Donohue were also associated together in respect of the

same events in the following way. On the occasion of the search of Kenneth Donohue’s house on the 24th October,

2002 he had earlier in the evening refused the gardaí access to his home, in the absence of a search warrant. The

actual search therefore took place later, effectively in the middle of the night, with the appropriate warrant obtained

and to hand. At around that time Kenneth Donohue was observed walking away from a car located a few hundred

yards from his home. That car was owned and at the time was being driven by Niall Binéad. The trial court was

satisfied that the account given by Niall Binéad for his presence there was spurious, and that it was too much of a

coincidence that he and Kenneth Donohue should be seen together in the middle of the night in the above

circumstances, unless Niall Binéad also had some involvement with the events which occurred on the 10th October.

The trial court having regard to this evidence, was satisfied that both Niall Binead and Kenneth Donohue, if not

actually participating in the above events at Corke Abbey, were well aware of and acquiesced in them.

The court was entitled to find the above facts proven. To take a small example. It was proven that at one stage on the

evening in question, a Nissan Micra car had been driven into the Corke Abbey housing estate and that five men got out

of it. Three of them remained in the housing estate and got into a yellow Transit van, and the other two got back into

the Nissan Micra car and drove away again. It was adequately proven that on the evening in question, sometime no

later than 8.00 or 8.30 p.m., according to the evidence, Kenneth Donohue’s partner had given the keys of the car to

him. Further when she returned to her home at about 10.00 or 10.30 p.m., neither Kenneth Donohue nor the car were

there, but both were there the next morning. There was no evidence and no suggestion that the car had been in the

hands of anyone else, that it had been stolen, or in any way otherwise removed from the control of Kenneth Donohue.

The trial court was fully entitled to find that, the Nissan Micra having been under his control, he was associated with

the events in question at Corke Abbey, through his use of the car. To take another small example. In the case of Niall

Binéad, it was proven that he was associated with Michael Byrne and with two other members of the group found at

Corke Abbey, and that the materials he had in his house also established that association. The facts upon which the

trial court relied were all proven beyond reasonable doubt, and indeed, as the court itself stated, there was no serious

challenge to the prosecution evidence of the facts, connections and associations mentioned above. The conclusion of

the trial court that both Applicants were associated with the events at Corke Abbey was, on the findings of the Court

on several matters, established beyond reasonable doubt and was, in the circumstances, a safe and valid conclusion.

Inferences pursuant to S.2 of the Offences Against the State (Amendment) Act 1998

According to the judgment, each of the Applicants was arrested, Kenneth Donohue on the 24th October 2002, and

Niall Binéad on the 20th December 2002, and were lawfully detained. Each was interviewed at length by members of

An Garda Siochana. During these interviews, numerous questions were put to each of them relating to their possible

membership of an illegal organisation. Section 2 of the Offences Against the State (Amendment) Act 1998 (“the Act of

1998”) was invoked by the interviewing gardaí. Each Applicant was informed of the consequences to him of a failure

to answer material questions. Neither answered any question and did not respond to questions such as “Are you a

member of the I.R.A.?”. The trial court stated, as regards these interviews and the failure to respond as follows:

“…, not only did each accused remain totally silent during the course of the interview, but each of them

appeared to take no ostensible interest whatsoever in what was going on. They sat bolt upright showing

remarkable self control throughout, in that their only movement was an occasional blink of the eyes, but

they made no effort to engage with their interviewers.

In the view of the court, it was clear that each accused was deliberately, and indeed offensively, ignoring

all that was being asked of them. On the other hand, the court is satisfied, not only that the provisions of

Section 2 of the Offences Against the State (Amendment) Act 1998 were invoked in the course of those

interviews, and adequately explained to each accused, but that each accused was given every opportunity

to protest in the event that he had not understood that explanation; an opportunity which was ignored.

Furthermore, the court does not doubt the materiality to the charge which has been preferred against

each accused of many of the questions which were put to each of them during the course of those

interviews; questions which were met with a stony silence.”

Having reviewed some further evidence concerning the interviews, the court concluded:

“… the court is entitled to and does in fact, draw the inference from the failure of each accused to

answer those questions, that each of them has a guilty conscience insofar as the allegations that they are

members of an unlawful organisation was concerned, and that the court is satisfied that their silence

amounted to corroboration of the belief evidence in that behalf given by Chief Superintendent Kelly.”

The gravamen of the Applicants’ complaint in this regard is the alleged unlawful commentary on the demeanour and

behaviour of each of the Applicants during interview. It is necessary to analyse the judgment with a view to seeing

whether this complaint is justified. The trial court was considering, in this part of its judgment, the content of the

interviews, and the materiality of the questions posed having regard to the charges, and was assessing whether it could

draw the inferences which S.2 of the Act of 1998 states it can draw in certain circumstances. It is true that in the

introductory passage of the judgment on this issue, the trial court commented on the general demeanour of each of the

Applicants during the interview, referring to them as reacting with “stony silence”, or pointing out that each appeared

in the interviews to be simply ignoring what was going on, even, the court said, deliberately and offensively doing so. It

is not suggested by the Applicants that these comments were in any way inaccurate of the actual events occurring at

the time or of the Applicants’ demeanour, and no case is made by either Applicant that they had, in fact, answered any

question at all. This objection, against a background of a total failure to answer any question at all, is rather surreal. In

dealing with the question of whether it could draw inferences from a failure to respond to material questions, the above

extracts from the transcript make it clear that the trial court made a finding on just that, namely the failure to respond,

and dealt with that precise question in a discrete manner. What the Applicants suggest, arising from the foregoing, is

that bias can in some way be implied against the trial court in the course of its assessment of the issue as to whether

inferences could be drawn from the clear failure to respond, and that because of the comments made as to demeanour,

the court’s inferences were invalidly drawn. The entitlement to draw inferences arises from the failure to respond to

material questions. The evidence established clearly that there was a complete and utter failure on the part of either

Applicant to answer any question at all in the course of interview. In these circumstances, the inferences were

correctly and validly drawn. The commentary as to demeanour in no way altered that, nor did it suggest that the right

to silence did not apply.

The Belief Evidence of a Chief Superintendent

The decision of The Supreme Court in DPP v Kelly, supra., makes it clear that a trial court does not fail to guarantee

a fair trial by accepting a claim of privilege based on informer information, and in not permitting, on that ground, the

cross examination of a Chief Superintendent as to the sources or the basis for his belief. A trial court may also properly

proceed, as here, on the basis of not convicting an accused unless there is supporting or corroborating evidence of the

Chief Superintendent’s belief. It is not necessary, for the purposes of this judgment, to express any view as to whether

in another case, a trial court would or should convict on the basis of such belief evidence, without any supporting or

corroborating evidence.

Having regard to the judgment in DPP v Kelly, supra., the outstanding issues which remain for consideration on the

Applicants’ submissions are (a) whether any material, such as documents underlying that evidence, must be made

available by some mechanism to the defence, as Mr. Finlay contends for on behalf of Niall Binéad, (b) whether, as in

the present case, the trial court was entitled to examine that material for the claimed purposes, and (c) if not, was the

trial of the Applicants rendered unfair and contrary to Article 6 of the Convention, as contended for by Mr. Devally on

behalf of Kenneth Donohue, by reason of the fact that the trial court did, in fact, examine the said material.

The correct interpretation of the judgments in DPP v Kelly, supra., in this court’s view, is that the belief of the Chief

Superintendent is simply admitted as being evidence, no more and no less, and that this was already well established in

the prior jurisprudence. It is that evidence, that is to say, his belief evidence, which is the subject of cross-examination.

Such a witness can be examined and cross-examined on his belief in accordance with the provisions of Article 6 of the

European Convention of Human Rights. Such a witness is entitled, in the course of his evidence, to claim privilege in

respect of underlying facts or materials or sources which led to his belief, inter alia, on the basis that disclosure of the

same could cause a credible threat to the life of persons or to the ongoing security of the State, as claimed here. By

ruling that it would not convict without supportive or corroborative evidence of that belief, the trial court clearly

recognised the disadvantage which flows from and accrues to the defence in a trial, from the admission of such belief

evidence with an accompanying claim to privilege which may limit, in a particular case, the ability to test fully by

cross-examination the underlying material or facts leading to that belief. On the basis of the judgments in the Supreme

Court in DPP v Kelly, supra, and O’Leary v Ireland, supra, this court is satisfied that the trial court did not, in the

present case, conduct an unfair trial. This court is also satisfied that the trial court was not obliged to appoint a special

advocate to consider and report on the material underlying the belief evidence of the Chief Superintendent. The role

and jurisdiction of the Special Criminal Court are indeed limited by the fact that it is a creature of statute and cannot

operate outside the scope of its statutory mandate, or beyond what can be implied as being reasonably necessary to

carry out that mandate. The appointment of a special advocate, in the view of this court, is not established by Niall

Binead as being within its mandate, or implied from its statutory jurisdiction. Nor is there otherwise an entitlement

enabling him to procure such an appointment.

Turning now to the question whether the trial court did not guarantee a fair trial by itself reviewing the material

furnished to it by the Chief Superintendent as is contended for on behalf of Kenneth Donohue, this court is also

satisfied that the trial court did not in the present case, by carrying out such a review, infringe the right to a fair trial.

The trial court followed the very full discretion vested in it according to the decision in Ward v Special Criminal

Court, supra. The Supreme Court, in that case, dealt very fully with the question of the long established principle of

informer privilege and the exception to it based on “innocence at stake.” Of particular assistance in the judgment of

O’Flaherty is the following extract, which followed on from the analysis of the jurisprudence and the adoption of

Canadian jurisprudence in which it is stated that “the right to disclosure is not to trump privilege”:

“They must both be accommodated and prosecution counsel has a key role in this concord. However,

when it comes to a stage where there is any doubt on the matter, it will be essential to get the ruling of

the trial judge. Sometimes the matter will be straightforward. No doubt, judges allow claims of privilege

in routine cases day in and day out without ever examining any documents. Other cases – this may be

one – will be more complicated and then the judge or judges (as in the case of the Special Criminal

Court) will examine the documents. However, I do not think trial judges should feel that they have any

obligation to look at documents in every case.”

In the present case, the trial court, on reviewing the material, concluded that there was nothing in it which would in

any way assist either of the accused in proving their innocence, and found that the material constituted a good basis for

the belief of the Chief Superintendent. Both findings clearly come within the ambit of the phrase “material which might

be of assistance to a defendant”. If the trial court had found otherwise on either of these issues, it would undoubtedly

have held differently. It was suggested that the Supreme Court in DPP v Kelly, supra., did not approve of a discretion

vesting in the trial court, in accordance with the decision in DPP v Special Criminal Court, supra., but such a finding

is not apparent from that decision.

Further, while counsel for Kenneth Donohue accepts that the European Court of Human Rights has itself reviewed

files, he contends that that court considers that the court dealing with guilt or innocence cannot itself carry out any

monitoring or investigative role. It is not at all clear from the case law of that Court that any of the judgments relied

upon by counsel in this case deal with the issue of a claim to privilege based on a threat to life or to the ongoing

security of the State, as here. None appears to deal with a situation where the investigative role in criminal matters, as

in this jurisdiction, is not dealt with by a judge, unlike the position in many civil law jurisdictions. The position is

particularly different where judges sitting without a jury, such as in the Special Criminal Court, have long experience in

removing from their consideration material or evidence which may have been admitted in error, or opened to them,

even inadvertently, or which has otherwise come to their attention. A typical example exists every time a trial court,

and not just the Special Criminal Court, conducts a voir dire, a trial within a trial. There is the prospect that matters

involved in the voir dire, even vexatious or potentially damaging matters may have to be banished from the judge’s

mind as the case progresses, and judges do so meticulously and without difficulty every day. If they fail to do so, an

appeal mechanism exists to remedy this.

In the trial the subject of these applications, there is no reason to conclude that anything found in the material

examined by the trial court was influential on that court in making its judgment, let alone inspiring anything

determinative of the guilt of either accused. A statement to the contrary was explicitly made by the trial court, and is to

be found in the judgment itself. Nor could any of this material, had it been disclosed to the defence, have been

considered to be in any way of assistance in establishing the innocence of the accused –a statement that no such

exculpatory material existed is also found in the judgment. It is not therefore established by the Applicants that any

material determinative of the guilt or innocence of either of them existed or was considered by the trial court in

reaching its conclusions.

The contention on the part of the Applicants that Article 6 of the above Convention has been breached, or that the trial

court failed to ensure that a fair trial took place on the basis of these arguments has not been established. Further, in

declaring that it would not convict on the belief of the Chief Superintendent alone, the trial court was acting in line with

the judgments delivered in the DPP v Kelly, supra. The trial court was also thereby indicating that the belief evidence

alone of the Chief Superintendent was not to be considered, at least in this case, to be “determinative” of the guilt or

innocence of either Applicant, as accused.

Conclusions of the Trial Court on Guilt of the Applicants

The trial court in its conclusion found that, while the association with events at Corke Abbey, or the documents found

on searches, for example, might not, in isolation, be indicative of membership of an illegal organisation, these matters,

accepted as having been proven, when taken together with the inferences referred to above, were supportive of the

opinion evidence of the Chief Superintendent. When considered with that opinion evidence, all these matters taken

together were sufficient to establish beyond reasonable doubt that both Applicants were members of the IRA or of an

illegal organisation, on the date in question.

This court is satisfied that the trial court was entitled to reach the conclusions it did. Despite the argument submitted on

behalf of Niall Bineard, none of the matters was, according to that court “innocent” in the usual sense of that word,

that is to say non criminal, but could have been used for criminal activities other than those for which the Applicants

were charged. The real question for consideration rather is whether, even if each, taken in isolation, was considered to

be “innocent” - and this court does not accept that they were found to be so within the jurisprudence in that regard -

the trial court misdirected itself in law in concluding that the same evidence, considered on a cumulative basis,

supported or corroborated the belief evidence of the Chief Superintendent. There is ample jurisprudence, which it is

not necessary to repeat in this judgment, to support the conclusion that the trial court was indeed entitled to look at the

established facts, when taken together, and also when taken in conjunction with the inferences which it properly drew,

to see whether these supported or corroborated the belief evidence of the Chief Superintendent. Nothing in the

argument presented on behalf of either Applicant suggests that the trial court misdirected itself in finding the facts upon

which it relied properly established, nor in concluding that, when taken cumulatively together with the inferences, they

supported the belief evidence of the Chief Superintendent. The trial court’s finding that the foregoing facts and

inferences, when taken together with the belief evidence of the Chief Superintendent established beyond reasonable

doubt the charges against the Applicants as accused, was also a correct finding and conclusion.

In the foregoing circumstances, this court is satisfied that the applications for leave to appeal should be refused.