Court refuses separate judgment on issue estoppel as it is absorbed by existing ruling on corroboration grounds.

THE COURT OF CRIMINAL APPEAL

Record No. 236/04

Macken J.

Herbert J.

Haugh J.

BETWEEN/

EAMON MATHEWS

APPLICANT

-AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of the Court delivered on the 29th day of March 2007 by Macken, J.

1 On the 7th December 2004 the Applicant was convicted by the Special Criminal Court of the offence of membership of an unlawful

organization, after a hearing which lasted several days, and upon conviction, was sentenced to three years and nine months

imprisonment. From that conviction, the Applicant lodged an application for leave to appeal against conviction and sentence. By a

decision of this court handed down on the 14th July 2006, the application for leave to appeal against conviction was refused on all of

the grounds raised.

2 By notice of motion dated the 28th July 2006 and filed on the 3rd November 2006, application was made for a certificate for leave

to appeal to the Supreme Court pursuant to Section 29 of the Courts of Justice Act 1924 (“the Act of 1924”). By Notice of Motion

dated the 28th November 2006, the Applicant (described as the Appellant in both motions) applied to this court for relief in the form

of a judgment in respect of an argument raised at the hearing of the application for leave to appeal, which he contends had not been

dealt with by the court in its judgment. Both applications came on for hearing on the 27th November 2006. At the suggestion of the

Court, outline written submissions were filed by both parties, which were of considerable assistance to the Court.

3 It is proposed to deal with the application for a S. 29 Certificate for leave to appeal first. On this application, it is submitted that

three questions ought to be certified to the Supreme Court, arising out of the above judgment delivered on the 14th July 2006. The

first two are as follows:

1. Whether a bare opinion belief, unsupported by identifiable factual material, subject only to the criterion that it be held

by a member of An Garda Siochana not below the rank of Chief Superintendent, can be given any evidential weight in a

prosecution for membership of an illegal organization?

2. Is the undoubted restriction to cross examine on the basis of the opinion in breach of Article 6 of the Convention of

Human Rights?

4 The Applicant in his written submissions and at the oral hearing quite properly combines the argument on these two questions, since

in reality they arise out of the same issue, namely the status, in the most general sense, of the belief evidence of a Chief

Superintendent of An Garda Siochana. The third proposed question is a stand alone one.

5 Section 29 of the Act of 1924, in the version in force at the relevant date, reads as follows:

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be

final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify

that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that

an appeal should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the

decision of which shall be final and conclusive.”

6 By way of preliminary point the Court recalls that its decision of the 14th July 2006 was one refusing leave to appeal, based on the

Court’s finding that none of the grounds upon which leave to appeal was sought was established. On its face, the language of Section

29 of the Act of 1924 appears to provide for the possibility of a Certificate for leave to appeal against such a refusal, provided that

the decision involves a point of law of exceptional public importance which the Court considers should, in the public interest, be

referred to the Supreme Court. While there was fairly wide ranging argument relating to the contended for grounds of appeal, the

decision of this court remains one refusing leave to appeal.

7 The Applicant argues that the above questions arise out of this Court’s decision on two of the grounds upon which leave to appeal

was sought. Firstly, they arise out of its decision on ground 6, which alleged that the trial was not fair in law because there was no

opportunity to test the basis for the opinion of a Chief Superintendent of An Garda Siochana as to the applicant’s membership of an

illegal organization, this witness having claimed privilege over the sources of information which led to his holding the belief which he

did, on the grounds that to disclose the same would, inter alia, endanger life. Secondly, it is argued that the two questions also arise

out of this Court’s decision on Ground 8. That ground alleged that the trial court had erred in law in holding that the failure of the

garda witness to disclose those sources was not a breach of the Applicant’s right to a fair trial in accordance with Article 6(3) of the

European Convention on Human Rights (“the Convention”), as reflected in Irish law in the provisions of the European Convention on

Human Rights Act 2003 (“the Convention Act”).

8 In its judgment of the 14th July 2006 this court found, as is clear from the extract from the judgment cited by the Applicant in his

written submissions, that the restriction on the ability of the defence to cross examine the chief superintendent as to the sources for

his belief was not, ipso facto, a failure to comply with Article 6 of the Convention. The court also had regard to a recent decision of

the Supreme Court in DPP v Martin Kelly [2006] 2 ILRM 321. That judgment was delivered consequent upon a question certified to

that Court pursuant to S. 29 of the Act of 1924. The question was:

“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, in a charge of membership of an unlawful organization before the Special Criminal Court.”

9 For the purposes of this part of the judgment, it will be seen that the question raised in that case is analogous to questions 1 and 2

now sought to be certified, save that the question in DPP v Kelly, supra., referred only to the provisions of Article 38 of the

Constitution. The judgments in the Supreme Court, both the majority judgment and the assenting judgment, found that there was no

breach of Article 38 of the Constitution.

10 Senior counsel for the Applicant Mr. O’Higgins submits as follows. The judgment in the case of DPP v Kelly, supra., does not, in

reality, deal with the questions arising in this application, due to the very limitation in the terms of the question certified in the latter

case and the decision of the majority. In the course of the oral hearing, he argued that it would not have been permissible in law for

the Supreme Court to have pronounced on the position arising pursuant to Article 6 of the Convention, in the context of the question

actually raised and national law as it then stood, because the question posed predated the passing of the Convention Act. On the

contrary, he contends that since the passing of that Act, there is now an obligation on Irish Courts, and in particular on the Court of

Criminal Appeal and the Supreme Court, to apply the jurisprudence of the European Court of Human Rights, and, as here, that

concerning the application of Article 6 of the Convention. Clarification by the Supreme Court, as the court of final appeal in this

jurisdiction, of the position arising pursuant to the State’s obligations since the passing of the Convention Act, was necessary.

Further, it is submitted that since the question posed in the DPP v Kelly, supra, case was considered to have been one of exceptional

public importance, the same question, in the context of the Convention and of the Convention Act, must also be a question of

exceptional public importance, which it is in the public interest to have clarified.

11 Senior counsel for the Respondent Mr. Bermingham argues to the contrary that the above case, including in particular the

judgment of Fennelly, J., was germane to the matters dealt with in this Court’s decision, because in that case the Supreme Court had

before it all of the relevant case law of the European Court of Human Rights, and the effect of those cases was fully argued by the

parties in the course of the oral hearing before the Supreme Court, even if the question certified was by specific reference to Article

38 of the Constitution. Counsel for the Respondent in these proceedings, who was also counsel for the Respondent before the

Supreme Court in the case of DPP v Kelly, supra., confirmed that all such case law was before that court.

12 The Respondent accepts that the case law of the European Court of Human Rights on Article 6 of the Convention, and its impact,

was set out and relied upon only in the judgment of Fennelly J., whereas the majority decision of the Supreme Court in DPP v Kelly,

supra., was silent on that case law. However, counsel submits that if the Supreme Court majority had considered that there was any

divergence between the case law of the European Court of Human Rights and Irish law on the question of the rights arising pursuant

to Article 6 of the Convention, it is inconceivable that the members of the Supreme Court would not have said so, in a case touching

upon those very issues. Further, it is argued that had the members of the Court who delivered the majority judgment been in

disagreement with the analysis of the case law on Article 6 of the Convention found in the judgment of Fennelly J., it is equally

inconceivable that they would have remained silent on the matter. It is therefore submitted that, even if the majority judgment in the

case did not pronounce on the effects of the Convention and of Article 6 thereof, nevertheless the assenting judgment of Fennelly,

J., and in particular the analysis of the case law of the European Court of Human Rights found in that judgment, should be accepted

by this court as correctly reflecting the law on Article 6 in this jurisdiction.

Conclusion

13 This Court has verified that, in the case of DPP v Kelly, supra., the legal submissions filed both on behalf of the Appellant and on

behalf of the Respondent relied, inter alia, on the Convention and on the case law of the European Court of Human Rights, including

that relating to Article 6 thereof. The court notes also the confirmation by counsel for the Respondent that this case law, among

case law from several other jurisdictions, was also opened and relied upon, in the course of the oral hearing of the matter before the

Supreme Court.

14 The Court agrees with the submission of counsel for the Respondent that it would be wholly unrealistic to interpret the majority

judgment of the Supreme Court in the case of DPP v Kelly, supra., in the isolated manner suggested by counsel for the Applicant. The

very detailed and particular analysis of Fennelly, J., on the rights in question, which considered, inter alia, case law from the United

States, the United Kingdom and Australia, as well as that of the European Court of Human Rights, cannot be considered as an

incidental adjunct to his assenting judgment.

15 The manner in which a reservation to the content of another judgment is normally expressed by a member of the Supreme Court is

well established, but there is no such reservation found in any contribution of any member of the Court who formed the majority.

Further, it is, as the Respondent rightly contends, inconceivable that if the Supreme Court considered there was a material

divergence between Irish law and the case law of the European Court of Human Rights on the question of the right to cross-examine,

it would have refrained from saying so. Indeed, well prior to the passing of the Convention Act, case law of the European Court of

Human Rights was considered by Irish courts in many cases. It is not necessary for this court to cite in detail those cases. The

influence of those cases, even prior to the passing of the Convention is well described in the judgment of Fennelly, J. in the case of

Glencar Exploration Plc v Mayo County Council [2002] 1 ILRM 481, in which he stated:

“The judgments of the Court of Human Rights may be useful sources of persuasive authority where they contain reasoning

… relevant to the interpretation of legal rights guaranteed by the Convention which are analogous to rights which are

known in our law and Constitution and which our courts have to apply.”

16 Moreover, even before the enactment in Irish domestic law of corresponding provisions, there is a line of authority which suggests

that, while the terms of any international treaty or accord which the State has ratified are not directly applicable or enforceable in

Irish law until adopted into national law, an obligation, both on the State and on relevant organs of State, nevertheless exists in

public international law not to enact or implement laws or provisions in contradiction to obligations the State has subscribed to as

part of that international treaty or accord. The analysis of the case law in question, as found in the judgment of Fennelly, J. is,

having regard to all of the foregoing, one upon which this court was fully entitled to rely in coming to its view as to whether the

Applicant had raised grounds sufficient for the purposes of persuading this Court to grant him leave to appeal.

17 That being so, the question which arises for consideration is whether, notwithstanding the foregoing, the questions now posed

should nevertheless be referred to the Supreme Court on the basis that they constitute points of law of exceptional public

importance, which it is in the public interest to have determined, given that the purpose of the S.29 is essentially appellate in nature

and for the purpose of doing justice in a particular case. In this application, it is not submitted on behalf of the Applicant that the

correct position in law under the Convention, or pursuant to the case law of the European Court of Human Rights, is different to that

set forth in the judgment of Fennelly, J. Nor is it contended that his analysis is in any way flawed in its interpretation of the case law

of that Court actually invoked or cited. Nor is it suggested that there is other relevant case law which would in any way undermine

the analysis made, or the findings in the judgment of Fennelly, J. arising from that analysis. Nor, finally, is there any suggestion that

the fundamental guarantee to life found in Article 2 of the Convention, being the basis, inter alia, upon which the claim to privilege

was invoked in the course of the trial, is, according to any case law of the European Court of Human Rights, to be subsumed in all

circumstances to the right in an accused to cross-examine a witness in accordance with the protections accorded by Article 6 of the

Convention.

18 The same comments might also apply to the question of the value or evidential weight to be given to the belief evidence of a Chief

Superintendent. The decision of this court on the 14th July 2006 makes it clear that the issue of the evidential value attaching to

such evidence has been determined, in domestic law, for some time. It is not necessary for the purposes of this judgment to repeat

what was stated in the decision. No submissions are made in this application, in support of an argument that the decision of the court

in DPP v Kelly, supra. or indeed the earlier decision on that issue in O’Leary v Ireland [1993] 1 IR 102, are, in light of the case law of

the European Court of Human Rights, no longer good law.

19 In light of the foregoing, the Court does not consider that the Applicant has established that either question sought to be certified

is one of exceptional importance within Section 29 of the Act of 1924.

20 Turning now to the proposed third question, this is set out in the following terms:

“In what circumstances can a court reject an application for leave to appeal, on the basis of a judgment handed down

after the arguments have been concluded, and the parties have not been afforded the opportunity or invited to address

the issues raised in that judgment?”

21 This question arises in light of the fact that this court, in the course of its decision, made reference to and took guidance from the

decision of the Supreme Court in DPP v Kelly, supra., including in particular the judgment of Fennelly, J., as well as the judgment in the

case of Lynch v Moran & Anor, (unreported, Supreme Court 23rd May 2006), in reaching its conclusions as to whether the Applicant

had made out grounds upon which he ought to be granted leave to appeal.

22 As a general principle, where a court proposes to base its decision, inter alia, on a case determined since an oral hearing had taken

place, it may be appropriate that the parties should have an opportunity to make submissions, if they wish, on the possible

significance of the judgment in question. In the instant case, the court has had regard to the following material factors which required

to be taken into account in deciding whether this should be done. The fact that a certificate had been granted in the case of DPP v

Kelly, supra., pursuant to the provisions of Section 29 of the Act of 1924 and that judgment was awaited on that question was widely

known, and particularly so by those practising in the area of criminal law. The fact that reliance was also placed on that judgment of

the Supreme Court in another case determined by this Court, where judgment was also delivered subsequent to oral hearing, namely,

DPP v Birney & Ors (unreported, CCA., 12 May 2006), without the parties having been further heard prior to the delivery of the

judgment. Also, the fact that the parties in the instant application, despite the importance which the applicant now claims to attach

to it, did not move the court to be heard, a request which, if made, would have been readily granted.

23 As to the second case, Moran v Lynch, supra., this was a judgment containing a full history and a detailed analysis of all of the

relevant case law concerning issue estoppel in the United Kingdom, Canada, Australia and in Ireland, and which found that issue

estoppel does not exist in this jurisdiction, either in favour of the prosecution or in favour of an accused. The decision of the Supreme

Court on the issue could scarcely have been more definitive.

24 In relation to the foregoing two cases, the position is that the law has not changed, but has been restated in the majority

judgment in DPP v Kelly, supra. As to the assenting judgment of Fennelly, J., his review and analysis of the law, having regard to the

case law of the European Court of Human Rights constituted ample guidance for this court in its judgment. The law has been settled

in clear terms in the case of Moran v Lynch and Anor., supra. Nevertheless, the existence of those factors does not necessarily

constitute in all circumstances valid reasons for the parties to an oral hearing not to have had an opportunity to make further

submissions or to comment on those cases prior to judgment. So, for example, where the Supreme Court has materially changed

existing law in the area of sexual abuse of young children, that court, in light of the substantial and significant changes made in its

judgment in DPP v H (unrept’d) [2006] 1IESC 65, has invited further submissions from parties who had already been heard, prior to

delivering judgment in those cases.

25 In light of the foregoing, it is appropriate to consider whether, not having had an opportunity to be heard on the cases upon which

the court relied, the Applicant is or was in some material way disadvantaged, and if so, whether in consequence the question

proposed raises a point of law of exceptional public importance which it is in the public interest to refer for the opinion of the Supreme

Court. As to the question of any disadvantage to the Applicant, counsel did not claim any such disadvantage. Rather, the argument

actually put forward is that it is in the interests of justice that the question be certified for the opinion of the Supreme Court,

because it is “inappropriate that a judgment might be open to the interpretation that it was reached in private or without hearing the

arguments of the parties in relation to the same”.

26 As is clear from the above argument on the first two questions, the Applicant contends that the decision in the case of DPP v

Kelly, supra., is not relevant to the matters at issue in the present proceedings, or to his grounds of appeal, for the reasons set out

above, which do not need to be repeated. In the case of the second judgment it is not suggested either that the Applicant or his

counsel was in any way disadvantaged.

27 That being so, it is not possible to conclude that the question proposed is a question of law of exceptional public importance, in

the context of the present case. The case law in particular the Supreme Court judgment in DPP v Patrick Higgins (unrept’d, Sup. Ct.

22 November 1985) makes it clear that the procedure under Section 29 is primarily appellate in nature, and to do justice in a

particular case, and is not advisory in nature. Nor does the court consider that even if such a question could arise, taking the

applicant’s case at its highest, would it be in the public interest to certify such a question pursuant to S.29 of the Act of 1924.

28 However, the Court considers that in all appropriate cases, it would be both prudent and desirable that parties be invited to make

submissions on a judgment delivered between an oral hearing and the determination of an application, if the court intends to invoke in

a material way, the findings in such judgment(s), or any change in principles established in such a judgment, and depending of course

on the nature of the judgment itself. Since the parties to the action will not know whether such is the likely intention of the court,

while they may themselves invite the court to hear them, there could not be any onus on them to do so.

29 In light of the foregoing, the Court refuses the applications made on the motion for a certificate for leave to appeal.

The Second Motion

30 The court now turns to the second motion. As mentioned previously this motion seeks judgment on an argument which the

Applicant contends was not determined in this Court’s judgment delivered of the 14th July 2006. The Respondent does not accept

that this is so.

31 This issue concerns a decision of the court of trial on the characterisation by it of certain evidence adduced by the prosecution in

the course of the trial, as “capable of having an innocent explanation”, in the context of one charge and the consequences of that

characterization in the context of a second, unrelated, charge. The Applicant claims that the arguments put forward on his behalf for

leave to appeal on this ground were not determined in the decision of this court

32 Put briefly, the background is as follows. The Applicant was tried on two offences. One was possession of explosives, and the

second was membership of an illegal organisation. In respect of the first offence, the trial court dismissed the charge, stating that the

evidence on this charge was largely circumstantial and capable of an innocent interpretation. Counsel for the Applicant submits that

his argument on the application for leave to appeal, was (a) that it was illogical for the trial court to have found that if the evidence

adduced in the course of the explosives trial was found by the trial court not to be probative of possession of explosives, it could

nevertheless to be held to be consistent with membership of an illegal organization; (b) either the evidence was capable of innocent

interpretation or it was not, and (c) that if the evidence was innocent in respect of one charge, that same evidence could not point

to an involvement in membership of an illegal organization, the subject of the other charge.

33 Counsel for the Applicant contends that the decision of this court did not deal with this aspect of his application for leave, and

that the Applicant is entitled to have a ruling on his arguments, based on the decision of this court in The People (DPP) v Laide,

(unreported, CCA, 29th June 2005). Counsel for the Applicant also invokes the case of DPP v D O’S, (unreported, CCA 28th July 2004),

in which the court substituted a judgment of that date for its earlier decision of the 27th May 2004.

34 It is argued that, having regard to the circumstances in which the applicant, acquitted of one charge on the basis of the evidence

adduced being “capable of an innocent interpretation”, was nevertheless subsequently convicted by the trial court on another

charge, on the basis of the same evidence, this court ought to exercise its jurisdiction to consider the extant point made, and should

decide this in the applicant’s favour.

Conclusion

35 The court is satisfied that on the above referred to jurisprudence, invoked by counsel for the Applicant, the court may entertain

an application such as this.

36 This application depends on a review of the relevant grounds raised by the Applicant in his application for leave to appeal, and on

the decision of this court on those grounds.

37 In the Notice of Application for Leave to Appeal and in the written submissions filed on behalf of the Applicant on the 22 November

2005, Ground 4 is stated to be the following:

“The learned trial judges erred in law and in fact in finding that, having decided various pieces of evidence against the

prosecutor at the trial of the applicant for explosives, it was open to them to reconsider the same evidence in the

context of a trial for membership.”

In support of that ground, the Applicant, in his written submissions relied on certain transcript references, and on the trial court’s

rulings. In oral submissions counsel addressed this ground based on several separate arguments. Firstly, he argued that to constitute

issue estoppel, the court was entitled to have regard not only to the verdict which had been delivered, but also to any issue arising

within the case itself, upon which there had been a definitive ruling, relying in particular on the case of DPP v. O’Callaghan [2001] 1

I.R. 584. Secondly, he submitted that “innocent” in the context of the finding that certain evidence was “capable of having an

innocent explanation” must be interpreted as meaning the trial court in its earlier judgment acquitting the Applicant of the explosives

charges, had found that the activities in question were “lawful”. Thirdly, that being so, it beggared belief, and was wholly irrational for

the trial court to have found that the evidence which did not support one charge (the explosives charge) could or would nevertheless

support the other charge (the membership charge). Finally, since the Applicant was, on the law, able to establish that the issue was

therefore res judicata, that was conclusive of the matter and entitled the Applicant to have leave to appeal on Ground 4.

38 As to Ground 4, this ground raised a very net legal issue. That net issue was whether issue estoppel in favour of an accused exists

in Irish law. That was the only issue set forth in the Application for Leave to Appeal and in the written submissions. While the

question of issue estoppel might not have been fully, or definitively, determined at the time of the oral hearing in this case, the

position was put beyond doubt by the decision of the Supreme Court in Moran v Lynch, supra. Its ruling that there is no room for

issue estoppel in criminal law in Ireland in favour either of an accused or of the prosecution, is clearly stated in the final paragraphs of

that judgment, in the following terms:

“Given that mutuality is at the heart of issue estoppel, and having regard further to the concept of ‘equality of arms’

fostered by the Convention and reflected in decisions of the European Court of Human Rights, it seems only logical and

reasonable to hold in addition that, if issue estoppel can not operate in favour of the prosecution, it should not operate in

favour of the defence by way of unreciprocated advantage either. I would agree with the views expressed by Street CJ.

in R v. Blair [1985] 1 N.S.W.R. 584 that in any later criminal trial no question of issue estoppel can arise in relation to any

of the rulings that may have been given by the trial judge at the aborted trial. Here I would invoke in support the ‘notional

onlooker’ referred to by Hardiman J. in The People (DPP) v. O’Callaghan whose sense of fairness in the operation in the

criminal justice system must be kept in mind.

I see no reason grounded in public policy for granting an accused an unreciprocated advantage if issue estoppel does not

generate mutuality. In truth, a disservice is done to the integrity and reputation of the criminal process if the scales of

justice may be seen by the notional onlooker or by the public at large as forever tilted in favour of an accused and

forever tilted against the State. In my opinion, the extension of a consideration of ‘tenderness’ in this regard to an

accused, as so described by Brennan J. in Rogers v The Queen [1994] 181 C.L.R. 251, is not warranted having regard to

all the other rights he properly enjoys under our criminal justice system.”

39 There was no independent ground in the application for leave to appeal covering any issue as to the meaning to be attached to

the phrase “capable of innocent interpretation” or to its implication for the second offence, separate from the arguments raised in

support of Ground 4. In fairness to the Applicant his counsel does not claim that there was any such independent ground. There was

a separate ground concerning the same material or arguments, namely ground 5, but this concerned the question of corroboration of

the belief evidence of the garda witness. The applicant properly does not invoke ground 5 in support of his contention that his

argument was not dealt with.

40 It was not necessary or indeed appropriate, in the context of the actual ground raised, to address the argument(s) invoked on

issue estoppel, and now sought to be the subject of a separate judgment, once it became clear that the judgment in the case of

Moran v Lynch, supra. disposed of Ground 4 entirely. The arguments raised in support of the existence of issue estoppel in favour of

an accused were no longer relevant to that ground, but rather had been superseded by the judgment in that case.

41 In the circumstances the question of any additional judgment in respect of those arguments does not arise.