53
Kearns J.
MacMenamin J.
Clarke J.
THE COURT OF CRIMINAL APPEAL [C.C.A. No. 25 of 2002] BETWEEN THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS) PROSECUTOR/RESPONDENT AND
COLM MURPHY DEFENDANT/APPELLANT JUDGMENT of the Court delivered on the 21st day of January, 2005 by Kearns J.
The accused herein was on 22nd January, 2002, convicted of conspiracy to cause an explosion of a nature likely to endanger life or cause serious injury to property contrary to s. 3 of the Explosives Substances Act, 1883, as substituted by s. 4 of the Criminal Law (Jurisdiction) Act, 1976, and was sentenced to fourteen years’ imprisonment. Having been refused leave to appeal by the trial court, he now applies by way of appeal for leave to appeal to the Court of Criminal Appeal pursuant to s. 44 of the Offences Against the State Act, 1939.
Shortly after 3 p.m. on Saturday, 15th August, 1998, a massive car bomb exploded at Market Street, Omagh, County Tyrone, Northern Ireland, which resulted in the deaths of 29 people and injuries of varying degrees of severity to over 300 others. In addition extensive damage was done to property in the town centre.
The trial court described the outrage as the worst atrocity in Northern Ireland since 1969. It occurred at a time when the town was crowded with shoppers and visitors. Telephone warnings had been given shortly before the explosion, but the location of the car bomb was wrongly stated in the warnings, in consequence of which people were moved from the area where the bomb was stated to be to the other end of the town where in fact, unknown to the police, the bomb was situated and duly exploded.
The prosecution case was to the effect that the car in which the bomb was placed had been stolen in Carrickmacross, Co. Monaghan, in the early hours of 13th August, 1998, and was thereafter brought to Dundalk. Thereafter it was the prosecution case that the car was loaded with a substantial quantity of explosives to which was attached a detonating device thereby constituting a large bomb which was driven from the vicinity of Dundalk to Omagh via Castleblayney and Aughnacloy on the day of the explosion.
It was part of the prosecution case that, two weeks earlier on 1st August, 1998, another large car bomb of a similar nature, which had been placed in the same type of vehicle, exploded in Banbridge, Northern Ireland, causing widespread injury and damage, but fortunately no fatalities. It was further part of the prosecution case that the same code-word was communicated by way of warning prior to the detonation of the car bombs in each case.
The prosecution further contended that on Friday, 14th August, 1998, the day before the Omagh bombing, the accused, who has a building contracting business, borrowed a mobile phone from his foreman, Patrick Terence Morgan, adopting a subterfuge as to the purpose for so doing, and gave that mobile and his own mobile phone to one Seamus Daly, described by the court as a dissident republican terrorist, in Dundalk on that date.
In the course of admissions alleged to have been made by the accused in the course of garda interviews after arrest, it is alleged that the accused admitted so doing for the purpose of assisting Daly to move explosives to Northern Ireland for the purpose of bombing targets there. This evidence was contained in a note of oral information, including admissions, alleged to have been given and made by the accused in the course of being interviewed by Detective Garda Hanley and Detective Sergeant McGrath while in detention at Monaghan Garda Station on 23rd February, 1999.
The prosecution further relied on telephone records which the prosecution contended established a pattern of communication between the Morgan mobile telephone and the Murphy mobile telephone on 15th August, 1998, both shortly prior to and subsequent to the bombing outrage. The prosecution further relied on evidence that the accused’s mobile telephone was used to make a call from the Banbridge area in or around the time of the explosion in Banbridge on 1st August, 1998. In the course of the Garda interviews, it is alleged that the accused admitted handing over his telephone to Joseph Fee prior to the Banbridge explosion on 1st August, 1998.
Much of the prosecution case rested upon the admissions alleged to have been made by the accused following his arrest and during the course of his detention between 21st February, 1999, and 24th February, 1999, at Monaghan Garda Station.
The prosecution contended that the admissions made by the accused during that period established that he knew that he was providing a significant service in connection with a bombing operation in Northern Ireland on or about the 15th August, 1998, thus tying him into a conspiracy with others in connection with that proposed crime.
There was at the trial independent evidence from one Terence Patrick Morgan confirming that the accused had borrowed his mobile phone on Friday, 14th August, 1998, and that the accused had stated to him that he needed the phone because his own phone was ‘on the blink’. Both the prosecution and the trial court placed considerable reliance upon this evidence as constituting independent corroboration of the admissions made by the accused.
Mr. Morgan gave evidence on 14th November, 2001. In the course of that evidence, he told the court that on Friday, 14th August, 1998, the accused had come to a work site at Dublin City University to pay his workmen. Mr. Morgan told the court that the accused borrowed his mobile phone on that occasion, stating that his own was ‘on the blink’, and further stating that the telephone was returned to him on the following Monday. When the trial was almost over, and indeed at a point where Mr. O’Higgins, Senior Counsel for the accused, was making his closing submissions on 11th January, 2002, there was an unexpected development. It emerged that a letter had been received by the prosecution dated 8th January, 2002, from a solicitor acting for Mr. Morgan intimating that he wished to retract his evidence and contending that he had been compelled by police pressure to give a false account of having loaned his mobile phone to the accused on 14th August, 1998.
Having heard submissions, the court allowed Mr. Morgan give further testimony in the course of which he claimed to have given his evidence in its original form because of pressure and threats by police officers during his interrogation in Northern Ireland and subsequently by the gardaí indirectly through his in-laws, the McDermott family. He alleged that his nerves had been upset since his arrest in Northern Ireland and he was having ongoing treatment and medication in that regard.
On the 11th January, 2002, Mr. Morgan completely contradicted his previous evidence and contended that his mobile phone had been left in an open glove compartment in his van on the work site on 14th August, 1998. At some stage during Friday afternoon, 14th August, 1998, he discovered the telephone was missing. He did not have time to search the vehicle nor did he mention the absence of the telephone to the worker passengers when they assembled to be driven back to Dundalk that afternoon, nor did he report that theft to the gardaí. Eventually, he claimed he found the mobile on the following Monday morning under a seat in the van. He did not offer any explanation for the movements of the mobile telephone on the day of the Omagh bombing, or the user of it at that time as disclosed in the relevant telephone records.
As was pointed out by the trial court, the accused’s admission that he borrowed Terence Morgan’s mobile telephone is consistent with Mr. Morgan’s original evidence, although in the teeth of the later retraction. The court decided to accept as truthful Mr. Morgan’s original evidence and rejected Mr. Morgan’s purported retraction of evidence having observed his demeanour and having noted the general tenor of his evidence on both occasions.
Insofar as the telephone evidence was concerned, the court decided it could accept the veracity and accuracy of the telephone evidence beyond reasonable doubt. The court further held that the accuracy of the records had not been challenged by the defence. The court found two aspects of the evidence to be of particular significance.
The first related to calls made by the accused’s mobile phone via the Banbridge cell site mast, one at 15:39 of 5 seconds duration, and one at 15:42 of 15 seconds duration, on 1st August, 1998, less than an hour before the car bomb exploded in that town at 16:32 that day. The court took the view that this confirmed that the accused’s mobile phone was in the vicinity of Banbridge prior to the detonation of the bomb and that one ‘flash’ call and another of very short duration were made in quick succession in that location. The court was of the view that this was similar to the pattern which emerged from the records relating to the accused and Terence Morgan’s mobile phone at times consistent with the Omagh bombing two weeks later.
The court noted that telephone records from Vodafone in Northern Ireland and Eircell in this State established, by reference to cell mast information, that both phones were used between 12:41 and 16:01 on 15th August, 1998, in the course of which the following calls were made to the Morgan phone from the accused’s phone:-
12:41 – near the Castleblayney mast
13:13 – Emyvale mast
13:29 – Aughnacloy mast
13:57 – Omagh mast
15:13 – Stranuden/Monaghan mast
The court noted the following calls from the Morgan phone to the Murphy phone on the same date:-“14:09 – Omagh mast
14:19 – Mount Pollnaght mast to the accused’s mobile phone
16:00 – Castleblayney mast
16:01 – Tallonstown – County Louth”
Having considered the evidence in relation to the telephone records, the court stated as follows in its judgment (at p. 38):-“The pattern of calls and cell mast user by both phones on 15th August, 1998 indicate that each travelled from County Monaghan shortly before the detonation of the car bomb and also returned to County Monaghan thereafter. It is highly probable that the conveyance of the car bomb to Omagh that day would have involved not only the bomb-carrying vehicle itself but also a scout car to travel ahead of it. Telephone contact between both vehicles in such circumstances is probable. Contact with the person who gave the bomb warnings may also have been made by the accused’s or Morgan’s telephone.”
The court in delivering judgment took the view that the telephone records outlined above and the traffic between the two phones on 15th August, 1998, together with lies told by the accused to Terence Morgan by way of explanation when borrowing his mobile phone were matters corroborative of the accused’s confession of guilt regarding his part in the conspiracy to plant and detonate the Omagh car bomb.
The court further found that lies told by the accused to Detective Gardaí Reidy and King during the course of his detention at Monaghan about not having loaned his mobile phone to anyone on the day of the Omagh bombing, which said lies were retracted by him in later garda interrogations, were also corroborative of the accused’s later confessions of guilt. The court further noted that the accused’s admissions of guilt as recorded in garda interview notes had gone uncontradicted in evidence. The court further found that there was a similarity between the traffic pattern of user of the accused’s mobile phone at Banbridge on 1st August, 1998, and the Omagh telephone traffic in relation to the accused’s and Morgan’s telephone on 15th August, 1998. The court further noted that the accused was a republican terrorist of long standing “having been convicted of serious offences of that nature in this State and in the United States of America for each of which he had served prison sentences”. The court further noted that among others contacted by the accused’s mobile phone shortly before the Banbridge bombing was Seamus Daly to whom the accused is alleged to have admitted giving his own and Terence Morgan’s telephone on 14th August, 1998, for use in connection with the Omagh bombing. The court further noted that Seamus Daly is recorded as having received three calls from the accused’s mobile phone on 1st August, 1998, i.e. the day of the Banbridge bombing, at 13:05, 13:48 and 14:09.
The court was further satisfied that even if the foregoing factors did not collectively go far enough to establish confirmation of the accused’s guilt, it was clear beyond a reasonable doubt that the alleged admissions made by him in the course of Garda interrogation were as recorded in notes made by the interrogators, and in particular that the interview conducted by Detective Garda Hanley and Detective Sergeant McGrath on 23rd February, 1998, had a “probative ring of truth and there is a convincing explanation for the accused making them”.
The court further felt able to conclude that the motive of the accused in making the alleged admissions was to distance himself from any suggestion that he actually participated in the actual Omagh bombing itself. For that reason, the court concluded, he had a strong incentive to tell the truth. The court stated (at p. 43 – 44):-“In the course of interrogation after arrest the accused had learned that the Garda Síochána had evidence to establish that he had borrowed Terence Morgan’s mobile phone on 14th August, 1998 and that the latter together with his own telephone had travelled to and from Omagh on the following day at times consistent with the bombing there and that there had been traffic between them. He also became aware that the Gardaí had evidence that might be regarded as connecting him, a known dissident republican terrorist, with the Banbridge bombing on 1st August, 1998. It is highly likely that the accused would have feared that the foregoing information would be used to connect him with actual participation in the transportation of the car bomb to Omagh either directly or in a related scout car.
His early insistence in the course of interrogation that he had not loaned his mobile phone to anyone on 1st or 15th August, 1998 in conjunction with telephone records tended to suggest that he was the person who used his mobile phone at the material times. In order to avoid any such conclusion and to distance himself from actual participation in the Omagh bombing per se he had a strong incentive to tell the truth i.e. that he had collaborated in the Omagh conspiracy to the extent that he had provided the two mobile phones for use in carrying out the intended objective but that was the full extent of his part in the operation”.
The court thus concluded that it was satisfied, even if various other evidential factors fell short of corroborating the accused’s guilt of conspiracy as charged, that it would have been proper to convict him on the basis of his own admissions.
While in excess of 40 grounds of appeal were lodged on behalf of the accused, the oral and written submissions filed on behalf of the accused permit this court to summarise the principal grounds of appeal as argued in this court as being the following:
(a) the Special Criminal Court ruled incorrectly as to the legality of the accused’s arrest and subsequent detention and wrongly admitted evidence of interview notes and of alleged utterances by the accused;
(b) the Special Criminal Court failed to either grant a direction or acquit the accused when there was before the court evidence that police witnesses had altered notes of written interviews and had lied under oath;
(c) the Special Criminal Court breached the accused’s entitlement to a presumption of innocence by having regard to inadmissible evidence of previous convictions;
(d) the Special Criminal Court wrongly admitted telephone records as evidence;
(e) the Special Criminal Court wrongly relied on the evidence of Terence Morgan, which said evidence was of an unreliable character;
(f) the Special Criminal Court misdirected itself as to corroboration and made findings as to corroboration which were not supported by the evidence;
(g) the Special Criminal Court failed to adequately address the defence case or rule in detail on various points argued on behalf of the accused by counsel;
(h) the trial was rendered unsatisfactory by reason of an almost two month break in proceedings.
Function of the Court of Criminal Appeal
The functions of this court in appeals to it from the Special Criminal Court were described by O’Higgins C.J. in The People v. Madden [1977] I.R. 336 in the following terms (at p. 340):-“In the appeals now before this court, we have transcripts of the rulings of the Special Criminal Court made in the course, and at the end, of the trial on questions of law and findings of facts in relation to the admissibility of evidence, the sufficiency or cogency of the evidence, and the reasons for the rulings and verdicts given. Therefore, subject to the grounds of appeal, it would seem to be the function of this court to consider the conduct of the trial as disclosed in the stenographer’s report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above.”
As this court has reached the conclusion that the conviction arrived at herein must be set aside on grounds (b) and (c) set out above, the judgment of this court will focus primarily on those particular grounds. However, counsel for the prosecution has requested that this court rule specifically on the question of admissibility of telephone records in criminal prosecutions of this nature, having regard to what he submits is the absence of any clear statement of legal principle by the courts in relation thereto. The court has decided to accede to that request.
Insofar as the other grounds of appeal are concerned, the court proposes to refer to each of such grounds, to the extent it considers necessary and appropriate in the particular circumstances thus arising.
(a) Rulings of the Special Criminal Court in relation to the legality of arrest and extensions of periods of detention and rulings on admissibility of interview notes and of alleged utterances by the accused.
The Court is quite satisfied as to the correctness of all rulings made by the Special Criminal Court in this regard.
Detective Sergeant Fallon arrested the accused under the provisions of s. 30 of Offences Against the State Act, 1939, on suspicion of unlawful possession of an explosive substance between 13th and 15th August, 1998, at Dundalk, Co. Louth. The legal basis for the arrest was correctly stated by the court as follows:-
(a) subjectively assessed, did the arresting officer have a bona fide suspicion that the accused was in unlawful possession of an explosive substance at Dundalk between 13th and 15th August, 1998?
(b) objectively assessed, could the arresting officer’s suspicion, even if bona fide held, be seen as a reasonable one?
There were ample grounds underpinning the officer’s suspicion. The accused’s antecedent history, including previous convictions for terrorist-type offences, was known to the arresting officer. The accused was known to associate with republican subversives who had themselves been convicted of terrorist crimes. The arresting officer had been made aware of the contents of a briefing report which formed part of a large dossier on the Omagh bombing which had been prepared by Detective Inspector Foley. He had also attended a briefing session on all aspects of the Omagh investigation conducted by Detective Inspector Foley. The briefing document stated that the accused was at the time believed to be a member of the Army Council of the Continuity IRA, one of several IRA splinter groups. While Detective Sergeant Fallon believed the accused was actually a member of the Real IRA, another splinter group, this ‘error’, if error it be, seems to us, notwithstanding Mr. O’Higgins’s submissions to the contrary, to be of no significance having regard to the courts findings that both organisations were terrorist organisations within the generic concept of IRA or Óglaigh Na hÉireann. Furthermore, the arresting officer was aware that the car used to carry the bomb to Omagh had been stolen in Carrickmacross on the morning of 12th August, 1998. He may or may not have been aware that the car was moved thereafter to Dundalk. Mr. O’Higgins makes the valid point that this particular piece of evidence only emerged in the re-examination of Detective Inspector Foley, and was not offered by Detective Sergeant Fallon as one of the grounds which operated in his mind at the time. The arresting officer was also aware of the movements of the accused’s mobile telephone on the day of the bombing in Omagh.
It was entirely reasonable to suspect, having regard to those factors, that the explosives involved had been in the possession of one of the suspects and that that consideration was inextricably bound up with the totality of the crime under investigation.
The court is equally of the view that the subsequent extensions were granted on valid and proper grounds. While only a few questions in the police interviews relate to the actual possession of explosives, the Gardaí conducting the questioning were entitled to approach that issue in the manner they saw fit. There was absolutely no question in this case of the detention and extension thereto being used as a ‘pretext’ or ‘colourable device’ for the investigation of some other unrelated crime. Furthermore, as noted by the court of trial, additional substantial information about the use of Murphy’s telephone and the borrowing of the Morgan telephone was alleged to have been furnished by the accused as the interviews progressed. The Special Criminal Court was satisfied, as indeed is this court, that such information and further investigation relating to it justified the making of an application to Judge Brennan for a second extension of 24 hours’ detention.
This court notes that objections as to the adequacy of cautions administered to the accused as to the implications of the interrogation under s. 52 of the Offences Against the State Act, 1939, were abandoned by Mr. O’Higgins on the hearing of this appeal.
While Mr. O’Higgins further argued that a new test had been introduced by
s. 30 of the Offences against the State Act, 1939, (as amended by s. 10 of the Offences against the State (Amendment) Act, 1998) whereby the circumstances in which an extension could be granted by a court was now limited to cases where an extension is sought for the ‘proper investigation’ of the offence in respect of which a suspect has been arrested (in contradistinction to the Criminal Justice Act, 1984, where, it was conceded, other offences could be investigated in the course of questioning during detention), this court is satisfied that the Special Criminal Court was entirely correct in treating events immediately prior to and after the Omagh bombing as part of a continuum, sufficient to permit the Gardaí a reasonable ambit within which to pursue and investigate the matter as a whole.
The court rules against the appellant on this ground of appeal.
(b) Alterations to interview notes and evidence given by garda officers in relation to same
Following his arrest on 21st February, 1999, the accused was detained at Monaghan Garda Station for three successive periods of 24 hours, the last of the three extensions being granted by District Judge Brennan pursuant to s. 30 of the Offences Against the State (Amendment) Act, 1998.
During the period of his detention, the Special Criminal Court heard no evidence suggesting that the accused had been ill-treated in anyway whatsoever or that any form of inducement had been offered to extract a statement or confession from him.
Three teams, each comprising two officers, were allocated for the purpose of questioning the accused, being respectively Detective Gardaí Donnelly and Fahy, Detective Gardaí King and Reidy and Detective Sergeant McGrath and Detective Garda Hanley. It is common case that, as and from the second day of interview, Detective Garda King and Reidy dropped out or were assigned to other duties, so that effectively the critical interviews in this case were conducted by the two remaining teams of officers.
Five interviews with the accused took place on 21st February. It is common case that the accused declined to sign or initial any interview notes compiled during these interviews either on this day on any of the following days of detention.
Some six interviews were conducted on the second day of detention. Each was again conducted with two members present.
On the morning of the second day of his detention, the accused was visited by his solicitor and had a consultation with him. It was the defence case, as canvassed in cross-examination though not in evidence, that following this visit and consultation, the accused, apart from engaging in some general conversation with interviewing officers about his republican past and associations made no further admissions and certainly none of an incriminating nature. On Tuesday, the last day of his detention, there were four further interviews.
The trial of the accused commenced in the Special Criminal Court on Friday, 12th October, 2001. Long before that date, prior to May, 2000, the defendant’s legal advisors had arranged to have the originals of all interview notes examined by a forensic document examiner, Mr. Kim Hughes, an expert formerly employed by the Home Office Forensic Science Section in Birmingham. He carried out an ESDA test of the interview notes at Garda Headquarters in Phoenix Park for the purposes of this case. The purpose of the examination was to determine whether the notes had been altered in any way and whether pages had been re-written or substituted. He also looked for any evidence to show that they were not contemporaneous, or were not what they purported to be.
The ESDA (Electrostatic Detection Apparatus) technique employs a sensitive electrostatic process to render faint impressions visible in the form of black particles fixed to a clear plastic sheet. In favourable circumstances, ESDA traces can reveal impressions on sheets below the one that it is immediately beneath the written sheet. Put in simple terms, the test is useful for highlighting indented impressions of handwriting that the eye might not see on a blank or subsequent page of a handwritten sequence of pages.
It is a somewhat surprising feature of this case that the fact that this examination had taken place does not appear to have been communicated to the State’s prosecution team. It is fair to say that the intimation of the evidence to be given by Mr. Hughes therefore came as a considerable shock when, during the course of the cross-examination by defence counsel of Detective Gardaí Donnelly and Fahy, it was put to them that the scientific test carried out by Mr. Hughes would suggest, as was later confirmed in evidence, that the third page (of three) of the original notes of the interview which commenced at 3.45 p.m. on 22nd February, 1999 (Exhibit 23), had been re-written in amended form.
The relevant section of the interview notes, as produced in direct evidence to the court, was in the following format:-
“JF Colm, could your wife have taken your mobile phone to Omagh?
CM Definitely not
JF Getting back to the phones Colm, the matter will have to be clarified. You’ve a big problem here.
LD We’ll take a break now Colm. Think about it.”
However the scientific evidence established, by reference to the indentations on a following page, that what had originally been written was the following:-
“JF Colm, could your wife have taken your mobile phone to Omagh?
CM Definitely not.
JF She’s Sheila Grew’s sister, isn’t (word indecipherable)
CM That’s right
JF Getting back to the phones Colm the matter will have to be clarified. You’ve a big problem here.
LD We’ll take a break now Colm. Think about it.”
While evidence was also led to suggest that one other set of notes was written in different inks or by different pens and that other unusual features had been identified, such as a gap of a line within the interview and some differences in handwriting style, the Special Criminal Court was satisfied, as indeed is this court, that no particular significance, if any at all, attaches to these portions of the evidence.
However, and it is a matter which is conceded by the prosecution on the hearing of this appeal, the alteration which has been set out above in full detail was potentially one of considerable significance for the following reason.
Firstly, Sheila Grew was not, or is not, a sister of Colm Murphy’s wife. She is, or was, however a person whom the gardaí regarded as having strong republican connections and was a person whom the gardaí believed at the time was a girlfriend of Seamus Daly, another person known to the gardaí for his strong republican connections and whom the Gardaí believed to have been involved in the Omagh bombing outrage.
As Mr. O’Higgins pointed out, a connection of that sort between Murphy, Grew and Daly could be seen as constituting a basis for implicating Murphy further in the design and execution of the Omagh bombing. Other interview notes suggested that Sheila Grew had been actually working in the Emerald Bar in Dundalk on the day of the Omagh bombing. These are licensed premises which are or were at the time owned by Colm Murphy’s wife. Subsequent interview notes also suggested that it was in these premises that Murphy had handed over two mobile phones to Seamus Daly on Friday, 13th August, 1998, which said mobile phones were stated in evidence to have travelled to and from Omagh on the day of the bombing and in respect of which a pattern of calls between the two mobile phones, both before and subsequent to the bombing, was contended for in evidence.
The critical point, Mr. O’Higgins submitted, is this: why, if this question had been asked and answered by Murphy in the manner suggested, and as it appears on the ESDA printout, would Colm Murphy say that Sheila Grew was his wife’s sister when such was patently not the case? There must, Mr. O’Higgins submitted, be an almost inescapable inference that Murphy never said any such thing, that the question and answer were concocted and that the two officers, on discovering the error, set about altering the third page of the interview notes.
Such was the finding of the Special Criminal Court which, in the course of its judgment, expressed severe criticism of the two officers concerned, not least because the court believed they repeatedly lied under cross-examination to the effect that these interview notes had not been altered or changed or re-written in any way whatsoever.
The critical question of course then fell to be determined as to the significance both of this alteration and of the evidence found to be perjured of the two officers, both for the integrity of the interviews as a whole and in terms of the consequences for the trial itself. The trial court dealt with this issue at the close of the prosecution case by declining a request for a direction but by altogether excising the evidence and interview notes compiled by Detective Gardaí Donnelly and Fahy from the body of evidence to which the court would have regard. It did not find however that the behaviour of the two Gardaí tainted the conduct of other officers who formed part of the interrogation team or that there was any basis for finding that a more widespread involvement of the investigation team in these improprieties had taken place.
The relevant portion of the judgment of the Special Criminal Court delivered on 22nd January, 2002, deals with the issue (at pp. 14-17) in the following terms:-“The court has already ruled that the evidence of one of the three teams of two officers who had interrogated the accused while in custody i.e. Detective Gardaí Donnelly and Fahy, is entirely inadmissible, including notes alleged to have been made by them at interviews with the accused. This matter is referred to in detail in a reserved ruling by the court made on 15th November, 2001. Suffice to recap briefly that expert evidence established that Detective Garda Donnelly in the first instance inserted false information into the note and interview with the accused which commenced at 3.45 p.m. on 22nd February, 1999; such information being to the effect that the accused acknowledged that his wife is a sister of one Sheila Grue (sic), a person then having a close connection with Seamus Daly who is alleged to be a terrorist and a leading member of the Real IRA who the Gardaí believe had been involved in the Omagh bombing.
It appears that after conclusion of the interview, one or other or both of the interrogators discovered – how, when, or through whom has not emerged in evidence – that Mrs. Murphy is not related to Mrs. Grue (sic). Garda Donnelly, the note maker, would have realised then that the accused could not possibly have confirmed the alleged relationship. This caused him to retrieve the notes from Garda Whelan who was the custody officer and re-write the final page, deleting the false allegation about Mrs. Murphy’s relationship with Mrs. Grue (sic). The revised note was then restored to Garda Whelan’s custody apparently without his knowledge.
Gardaí Donnelly and Fahy denied any such wrongdoing in evidence but subsequent evidence of an ESDA test carried out by Dr. French (sic), an expert in that area, established beyond doubt the falsification which had taken place. His evidence was not challenged by the prosecution expert, Detective Garda Geraldine Butler who had carried out a similar test.
It was argued when the evidence was challenged that the wrongdoing of Gardaí Donnelly and Fahy was such that it cast some doubt on the conduct of the investigation as a whole and that accordingly all interview notes were tainted and there was a real possibility that the evidence of the other interrogating officers might be unreliable. When that point was argued previously it was rejected by the court.
Since then further testimony has been given but there is no evidence that the error made about Mrs. Murphy’s relationship with Ms. Grue (sic) and its wrongful inclusion in the original interview note was ever divulged by Gardaí Donnelly or Fahy to any other member of the investigation team either at a case conference or otherwise. It is more likely that Garda Donnelly having discovered the error would not wish to admit to serious misconduct and that he rectified it without the knowledge of other officers except his partner, Garda Fahy, who was required to sign the re-written final page of the notes.
The court is not aware of any evidence or circumstance which should cause it to alter its original ruling on this matter as to the effect of Garda Donnelly’s wrongdoing vis-à-vis the other interrogators. If the wrongdoing had been that of a senior officer of which his juniors may have been aware, there would be a substantial case to be made that his wrongdoing at or near the top may have percolated down and a reasonable possibility would therefore arise that it could have tainted the conduct of other officers who formed part of the interrogation team.
In the absence of evidence connecting other officers with Garda Donnelly’s wrongdoing there is nothing to establish that it might have percolated upwards or outwards and may have tainted the activities of other interrogators. That submission is rejected.”
It is quite clear from the foregoing quotation that the Special Criminal Court itself could see that a significant alteration had been made to the interview notes and effectively postulated a range of possibilities as to what might have happened. It must be said that there was no evidence in the case to support the finding which the court made, albeit as a matter of inference and likelihood, that Garda Donnelly somehow himself discovered the error and, in collusion with Garda Fahy, re-wrote the page, deleting the erroneous section about Mrs. Murphy’s relationship with Ms. Grew. Equally, there is absolutely no evidence to support the conclusion arrived at by the Special Criminal Court that “the revised note was then restored to Garda Whelan’s custody apparently without his knowledge”.
The court has been urged by Mr. O’Higgins to follow the approach which has adopted both in England and in Northern Ireland in relation to the alteration by police of interview notes in criminal trials of this kind. In this regard the court has been referred to judgments in a number of cases which are usefully summarised in the judgment of the Court of Appeal, Criminal Division, in Northern Ireland in R. v. Latimer, Hegan, Bell and Allen (delivered on 29th July, 1992) (otherwise known as the “UDR Four case”). In the course of his judgment in Latimer, Hutton LCJ (as he then was) considered the judgments of the Court of Appeal in England in R. v. Armstrong, Richardson, Hill and Conlon (the Guildford Four case), Court of Appeal (Crim. Div) 19th October, 1989, R. v. McIlkenny & Ors (the Birmingham Six case) (1991) 93 CR App R 287 and R. v. Silcott, Raghip and Braithwaite Court of Appeal (Crim Div.), 5th December, 1991 (the Broadwater Farm case).
Mr. O’Higgins submitted that these cases, both individually and collectively, demonstrate that courts of appeal in England and Northern Ireland have not hesitated to intervene to quash convictions where evidence subsequently came to light that police interview notes of suspects had been altered, tampered with or re-written. In R. v. Latimer convictions were set aside even though there was no ESDA evidence that the police fabricated or concocted confessions which they falsely attributed to the suspect, there being evidence that police officers gave untruthful evidence in the witness box when they said that the notes presented to the court were the notes written in the course of the interviews and that no notes had been re-written.
In that case there was evidence that there were up to 18 instances where notes of interviews taken by police officers had subsequently been re-written and that the notes were not all, as was claimed at the trial, made contemporaneously at the time of the interviews.
In R. v. Silcott, Braithwaite and Raghip, the Court of Appeal (Criminal Division), 5th December, 1991, Farquharson LJ, stated (at p. 22):-“The Crown has to depend upon the honesty and integrity of officers in a case and especially of the officer in charge, whose judgment and decisions on all aspects has to be relied upon by lawyers, the trial judge and the jury.”
In considering the impact of a revelation of this nature upon the proceedings, Farquharson LJ went on to say the following:-“We take all these matters into account but in our judgment the real test is what the trial judge would have done had he been aware of the alleged conduct of the officer in charge of the inquiry in relation to the Silcott interview.
We are confident that he would have withdrawn the case of Raghip from the jury. It follows inevitably that on this ground alone the conviction of Raghip was unsafe and unsatisfactory and his appeal is likewise allowed”.
In that case the police notes relied upon by the police at the trial recorded Silcott as having made remarks in an interview which were capable of being regarded as confessions of involvement in the murder of Constable Blakelock. However, an ESDA examination after the trial disclosed that the original relevant page of the notes of the interview did not contain the remarks capable of constituting confessions which were written in the page of the notes relied on at the trial. In other words the police had re-written that page and had included in the re-written page damaging remarks which Silcott had not made.
However, this court must bear in mind that there is no automatic rule as to the effect of police officers found to be lying in the witness box in respect of some matter which arises during the course of a criminal trial. As was noted by Hutton L.C.J. (as he then was) in Latimer (at p. 20):-“As we state in a later part of the judgment there can be no automatic rule as to the effect of police officers lying in the witness box as to some issue which has arisen in the trial. The fact that police officers have lied cannot mean that an accused is automatically entitled to a direction, irrespective of the nature of the case and the other evidence in the case against him. It would be quite wrong for a court to seek to punish or discipline the police for lying in a trial by acquitting, or quashing the conviction of, the accused, who is clearly proved to be guilty. The way to punish police officers if they commit perjury in a trial is to prosecute them for perjury or a conspiracy, cf Lord Diplock in R. v. Sang (1980) A.C. 2002 at 436 F – G. Viewing the matter at this stage in the light of the ESDA findings before us, and bearing in mind that there is no indication from those findings that the police falsely inserted into the notes any confessions which the appellants had not made or any suggestions made by the police which the appellants had not accepted, we are satisfied that, notwithstanding the ESDA findings Latimer was not entitled to a direction and clearly had a case to answer”.
The court would wish to lay due emphasis however on the fact that the difficulty in the instant case arose during the course of the trial itself. It did not, as in the English cases, remain to be discovered only many years later following a process of conviction and appeal court hearings. The Special Criminal Court here assessed the development in the course of the evidence, heard submissions and made certain rulings and findings in relation thereto which, prosecuting counsel submits, resulted ultimately in a conviction which is both safe and satisfactory. While the court must in the course of this appeal review the entire case in the light of the principles laid down in D.P.P. v. Madden [1977] I.R. 336, a more immediate concern is to answer the question whether or not the court correctly declined to direct an acquittal at the end of the prosecution case when the problems concerning Gardaí Donnelly and Fahy, their altered notes and dishonest testimony (as so found by court) had been identified.
We are satisfied that the alteration to the notes of one of the interviews in this case was of a nature as to raise an issue or question as to the extent to which other officers might or might not have been involved to some degree in collusion, at least to the extent of correcting the initial error and facilitating the filing of an amended third page in the material section of notes we have identified. This is not to say that any conspiracy or significant wrongdoing which involved other members of the investigation team did in fact take place or that any one particular scenario of what may have happened is more probable than another.
The test at this point of the case for the court was to determine whether, having excised the evidence which had been shown to be tainted, the case was still one in which a notional reasonable jury properly charged could convict. A direction should be granted in a case where the court determines that no reasonable jury properly charged could convict. The classic statement of how a court should approach an application of no case to answer is that given by Lord Lane C.J. in R. v. Galbraith [1981] 1 W.L.R. 1039 (at 1042) which has been quoted with approval on numerous occasions by the Court of Criminal Appeal:-“How then should the judge approach a submission of ‘no case’?
(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
(a) where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”
It does appear to this court that evidence was available, by inference at least, to enable the court to consider and evaluate the issue whether or not the contamination of the garda evidence went beyond officers Donnelly and Daly.
The court could have had regard not to just the absence of any positive evidence to that effect, but also to the very discontinuity between successive interviews of the accused, a fact and feature of this case which was emphasised time after time in a different context by the defence during the trial. Quite a number of the interviews with the accused commenced as though the preceding interview had never taken place. This may be seen as being inconsistent with the notion of conspiracies or deceitful efforts to dovetail fabricated confessions. Rather it is capable of being seen as pointing strongly towards an opposite inference. This court is not of course expressing any view as to the weight to be attached to such factors beyond noting that they were present.
The court could thus have properly determined at the direction stage that there was evidence from which it might later decide that no collusive or improper effort to falsify interviews had occurred having regard to all of the interview notes and the form in which they exist in this case. It was open to the court in our view to rule as it did that there should be no direction, but at the very least the circumstances of this case demanded that the court remind and warn itself at all times thereafter that, having excised the tainted evidence, the surviving garda evidence would have to be evaluated in the most critical and careful manner because of the matters which had come to light. In any trial with a jury a very strong warning to this affect would have had to be given. Whether the weight ultimately attached by the court to the ‘discontinuities’ between the admissions would, when taken in conjunction with the absence of any positive evidence of a more widespread complicity on the part of the investigation team in any wrongdoing, have been such as to enable the court be satisfied beyond reasonable doubt about the integrity of the police interviews is another matter. Our concern is more with the approach adopted by the court of trial to the evidence and the self-directions which appear from the reasoning in the judgment.
We do not consider that the court of trial brought to the issue of the possible contamination of evidence or to the evaluation of the surviving garda evidence that degree of extra critical analysis which was surely warranted having regard to the development which had occurred in relation to Gardaí Donnelly and Fahy. Alternatively, if the court was taking on board such concerns, the requirement to expressly adopt a critical approach on this account and to state that it was so doing does not appear on the face of the judgment. In particular, the court failed to assess, though requested to do so by the defence, the impact on the credibility of Detective Garda Hanley’s evidence of criticisms made of him in the course of the judgment of the Special Criminal Court in the then recent case of D.P.P. v. Gilligan, Special Criminal Court, Unreported, 5th March, 2001, and to place that in the balance when assessing the police evidence as a whole. Instead the court simply made findings as matters of probability about the police evidence which were based on speculation and not on evidence. For example, the suggestion that Garda Donnelly retrieved his notes from Custody Officer Whelan, re-wrote the final page, deleting the false allegation about Mrs. Murphy’s relationship with Ms. Grew, and then restored the revised note to Garda Whelan’s custody, all without the latter’s knowledge, is speculation only. We believe the court of trial misdirected itself by having regard to possible explanations for which there was no evidence in support and for failing to give due consideration to other evidence and circumstances which might have provided a proper foundation for the conclusion arrived at by the court. By favouring one scenario for which there was no evidence, the court’s approach was the very opposite of the more critical approach which the particular circumstances of this case demanded. The court feels compelled for this reason to set aside the conviction as unsafe.
(c) Previous Convictions
It is undeniable that the court of trial had regard to the accused’s previous convictions, although the accused had not himself given evidence or put his own ‘good character’ in issue. The case clearly did not come within any of the exceptions detailed in s.1(f) of the Criminal Justice (Evidence) Act, 1924, and Mr. Charleton, Senior Counsel for the State, has not pointed to any common law jurisprudence which would justify the leading of evidence of previous convictions to establish that such convictions are either corroborative of an alleged admission or probative of the guilt of the accused on facts such as those proved in the instant case.
In fact, the prosecution was at pains throughout the trial not to lead evidence from the interviews with the accused which might be construed as either prejudicial to or in any way compromising of the accused’s presumption of innocence.
As Halsbury’s Laws of England (4th ed, 1990) makes clear (at Vol 11 (2) par 1074):-
“As a general rule the jury should not be permitted to know of an accused’s bad character. Thus the prosecution is debarred from tendering evidence to show that the accused is of bad character, or is guilty of criminal acts other than the offence charged, or has a propensity to commit criminal acts of the same nature as the offence charged, merely for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. “
Nonetheless, the Special Criminal Court in the course of delivering judgment stated as follows (at pp. 40-41):-“The court is satisfied that the following facts which have been proved in evidence beyond a reasonable doubt are collectively corroborative of the accused’s confessions of guilt regarding his part in the conspiracy to plant and detonate the Omagh car bomb …
7. The accused is a republican terrorist of long standing having been convicted of serious offences of that nature in this State and in the United States of America for each of which he served prison sentences.
In the light of that background and his membership of a dissident terrorist group in Ireland which is not on ceasefire, he is person (sic) likely to be involved in terrorist activities of the sort charged against him.”
Corroboration received its classic definition in R v. Baskerville [1916] 2 K.B. 658, where it was defined by Reading LCJ as: “Independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.”
Further, in People (Attorney General) v. Williams [1940] I.R. 195 at 200, Sullivan C.J. formulated corroborative evidence as:“Independent evidence of material circumstances tending to implicate the accused in the commission of the crime with which he was charged.”
It goes without saying that a prior conviction at some point in time could not be corroborative of a confession of guilt to a later unrelated crime. Moreover the ‘fact’ of any prior convictions was not a matter which had been proved in the trial either beyond reasonable doubt or at all. In fact no such evidence had been led by the State during the trial proper.
One might begin this portion of the court’s review therefore by attempting, to identify from what source or sources the court of trial derived the particular information.
There was at the outset of this case a lengthy voir dire hearing concerning the legality of the arrest and detention of the accused. During the course of this evidence, which both prosecution and defence agree was admissible solely and exclusively for the purpose of establishing the basis for the arrest of the accused by Detective Sergeant Fallon, what was no more than hearsay evidence was given about the accused’s previous convictions and suspicions held by the arresting officer as to his membership of unlawful organisations. It did not entail any formal evidence of prior convictions. It formed part of the antecedent history of the accused to which the arresting officer could direct his mind, but it was, as stressed by Mr. O’Higgins, ‘crystal clear’ - and so noted by the court - that this material was never to be regarded as admissible against the accused once the trial proper resumed at the conclusion of the voir dire hearing.
As previously pointed out, when the trial proper did resume, the prosecution was at pains to avoid leading evidence which in any way trespassed upon or infringed that position.
Assuming the court did not derive the material from the voir dire, a careful perusal of the transcript reveals only one other possible source for the material upon which the court based its findings. That is to be found in the transcripts of days 12 and 13 of the trial when, in the course of cross-examining Dt. Garda Hanley, Mr. O’Higgins asked the following questions, on Day 12 (Q. 374):- “ Q. Would it surprise you to know that during his extensive interviews in November 1998 he was upfront and frank about the fact that he had been convicted before this court in 1976, that he had been convicted in 1982 in America and that he had returned in 1985 to Ireland and raised a family and had ceased membership of all those groups, of all republican paramilitary groups?
A. Certainly on this date in February he put himself as being a member of the Continuity Army Council.
“Q. Do despite the fact that he had given that account in November, on your account here he turned around and did a complete U-turn?
A. That’s correct, my Lord. That is what he volunteered himself being a member of it. (sic)
“Q. Even though in November he had been talkative and cooperative and answered all the questions and said he had severed his contacts in 1982 effectively. But you say he told you something completely different six months later?
A. That’s correct. He also volunteered information about his term of imprisonment to us on this occasion but he said he was a member of the Continuity Army Council.”
At a later point, on day 13, the following questions were put to the same witness in the course of cross-examination by Mr. O’Higgins (Q. 126-128):-“Q. Let’s try and look at this from a prisoner’s prospective and one who is making the confessions in the mood which you have described for us alright?
A. Yes, my Lord.
Q. One is known certainly between 1972 and 1985 had connections with unlawful organisations; isn’t that right?
A. Yes, my Lord
Q. Again on the text of the interviews as produced, has remained active within those unlawful organisations; isn’t that right?
A. By his own admissions, yes, my Lord”.
In the course of the hearing before this court, Mr. Charleton very properly conceded that a question asked by counsel cannot be regarded as evidence (D.P.P. v. Connolly [2003] 2 I.R. 1).
Even if the court could have regard to any answer given, the answer to the first sequence of questions is, at best, equivocal in relation to the existence of prior convictions. In relation to the second set of questions, the answers to same do not touch upon or prove previous convictions at all.
At no stage did the prosecution attempt to lead formal evidence of previous convictions, nor did the court of trial indicate it intended relying on same or afford to the defence any opportunity of making submissions as to the admissibility or otherwise of such material prior to delivering judgment.
To have regard to previous convictions in respect of which no admissible evidence was tendered and where no grounds for doing so were established can only be seen as a significant erosion of the presumption of innocence, whether couched in terms which go to corroboration or in terms which suggest that previous convictions are probative in some way of the guilt of an accused person in relation to a specific offence. While this was not a jury trial where the risk of prejudice would be glaringly obvious, it is impossible to avoid the conclusion that the previous convictions and bad character of the accused (as so found by the court) formed a significant element in the court’s decision to convict. We remain of this view even though the court at a later point in its judgment indicated it was satisfied to convict on the basis of the admissions of the accused alone.
There is a consistent line of authority of long-standing to the effect that a conviction is unsafe where evidence of previous convictions has been improperly introduced. See the decisions of the Court of Criminal Appeal in Attorney General v. Stephens [1934] 1 Frewen 12, The People (Attorney General) v. Havlin [1952] 1 Frewen 132; People (Attorney General) v. Goulding [1964] 1 Frewen 292, The People (Attorney General) v. Mohangi [1964] 1 Frewen 297 and The People (D.P.P.) v. Cull [1980] 2 Frewen 36. Further, the Court of Criminal Appeal in Attorney General v. Doyle [1943] 1 Frewen 39 determined that a trial in the Special Criminal Court was rendered unsatisfactory by the fact that prosecuting counsel had put questions which had adduced evidence that the accused had previous convictions, even though such questions had been put in the voir dire.
As Fennelly J. stated when delivering the judgment of the Court of Criminal Appeal in D.P.P. v. Ferris, Unreported, 10th June, 2002 (at p. 7):-“The common law has acted on one fundamental principle of proof since early modern times and since the abandonment of the primitive methods of proof of Saxon times. This rule has operated for centuries and is that the only evidence which is admissible at a criminal trial whether for or against the guilt of the accused is evidence which is relevant. This means evidence which tends to prove or disprove whether the accused committed the act with which he is charged. Evidence of character is, in general, not admissible.”
This court is driven to the inescapable conclusion that the court of trial fell into error in relying upon either the material contained in the voir dire or in counsel’s questions to admit as probative evidence which was manifestly inadmissible.
There can be no doubt but that the passage of legislation would be required to alter what must be seen as a basic principle of our existing criminal justice system not to have regard to such material when assessing guilt, save for certain specific statutory and common law exceptions which do not arise in the present case. There was no suggestion at any point in the judgment of the Special Criminal Court that the evidence of previous convictions fell into any of these excepted categories.
This court is therefore of the view that the conviction of the accused is unsafe and unsatisfactory for this reason also.
(d) Telephone Records
The fact that a recording is produced mechanically without human intervention makes no difference to its general admissibility in evidence.
Authority for this proposition can be found in the well known decision of The Statue of Liberty; The Sapporo Maru M/S (owners) v. Steam Tanker Statue of Liberty (Owners) [1968] 1 W.L.R. 739.
In that action concerning a collision between two ships, the plaintiff sought to admit in evidence a film of radar echoes recorded by a shore radio station. The defendants argued that evidence produced mechanically and without human intervention was inadmissible hearsay. Rejecting this submission Sir Jocelyn Simon P. stated at p. 740:
“If tape recordings are admissible, it seems that a photograph of radar reception is equally admissible – or indeed, any other type of photograph. It would be an absurd distinction that a photograph should be admissible if the camera were operated manually by a photographer but not if it were operated by a trip or clock mechanism. Similarly if evidence of weather conditions were relevant, the law would affront common sense if it were to say that those could be proved by a person who looked at a barometer from time to time, but not by producing a barograph record. So too with other types of dial recordings. Again, cards from clocking-in-and-out machines are frequently admitted in accident cases.”
Adopting this approach, the court considers that evidence of this type comes precisely within the category envisaged by s.5(1) of the Criminal Evidence Act, 1992.
This section provides that information contained in a document shall be admissible in any criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the information –
(a) Was compiled in the ordinary course of a business,
(b) Was supplied by a person (whether or not he so compiled it and is identifiable) who had, or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
(c) In the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.”
This is of course subject to the proviso contained in sub-s.(2) of s.5 which provides: “Subsection 1 shall apply whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person (whether or not he is identifiable) through whom it was supplied received it in the ordinary course of a business.”
This Court does not accept the submission that the statutory usage of the phrase “shall be admissible” renders such material any the less admissible at common law.
In R. v. Wood [1982] 767 CR App. R 23 at p. 26, CA Lord Lane C.J. stated: “Witnesses and especially expert witnesses frequently and properly give factual evidence of the results of a physical exercise which involves the use of some equipment, device or machine. Take a weighing machine; the witness steps on the machine and reads a weight of the dial, receives a ticket printed with the weight, or even hears a recorded voice saying it. None of this involves hearsay evidence. The witness may have to be cross-examined as to whether he kept one foot on the ground; the accuracy of the machine may have to be investigated. But this does not alter the character of the evidence which is being given. Other examples may readily be imagined such as a witness giving evidence that a certain event occurred at a certain time because he consulted his solicitor on it; a motorist giving evidence that according to the speedometer of his car he was travelling at a certain speed or a forensic scientist testifying that certain of his findings involved the usage of an electronic calculator.”
In R. v Wood [1982] 767 Cr. App. Rep. 23 the Court of Appeal held that evidence was properly allowed of computer results. The computer was used as a calculator, a tool which did not contribute to its own knowledge but merely carried out a sophisticated calculation which could not have been done manually. Lord Lane C.J. was accordingly of the opinion that the computer printout was not hearsay, but more properly to be treated as a piece of real evidence, the actual proof and relevance of which depended upon the evidence of others.
Similar considerations applied in the case of Castle v. Cross [1985] 1 All E.R. 87, where the Divisional Court held that intoximeter evidence was admissible on the basis that it was a tool, albeit a sophisticated one, and that in the absence of any evidence that it was defective, the printout, the product of a mechanical device, fell into the category of real evidence.
This Court is of the view that these principles apply, not only where the device in question processes information supplied to it, as in R. v. Wood and Castle v. Cross, but also where the device itself gathers information. Thus in R. v. Spiby [1990] 91 Criminal Appeals Reports 186, the printout from a computerised machine was used to monitor telephone calls. It automatically recorded information such as the numbers to which the calls were made and the duration of the calls. This was admitted as real evidence. It was held that where information is recorded by mechanical means without the intervention of human mind the record made by the machine is admissible.
R. v. The Governor of Brixton Prison ex p. Levin [1997] AC 741 is to similar effect. At issue there was whether the accused had used a computer terminal to gain unauthorised access to the computerised fund transfer services of a bank in order to make fraudulent transfers of funds from accounts of clients of the bank to accounts which he controlled. Each request for a transfer was processed automatically and a record of the transaction was copied to the computer’s historical records. The House of Lords held that the printout of screen displays of these records was admissible to prove the transfers of funds they recorded. Lord Hoffman stated: “they do not assert that such transfers took place. They recorded the transfers…. The evidential status of the printouts is no different from that of a photocopy of forged cheques.”
Such authorities must now be read subject to the decision in R. v. Corcoran [1993] Criminal Law Reports 48 , in which it was held by the Court of Appeal that before the judge can decide whether computer printouts are admissible, whether as real evidence or as hearsay, it is necessary to call appropriate authoritative evidence to describe the function and operation of the computer.
A submission was made regarding the interpretation of s.13(2) of the Interception of Postal Package and Telecommunications (Messages) Regulation Act, 1993. The point made by the appellant here is that the Act does not expressly make telephone records which have been obtained under the Act admissible in criminal or any proceedings. Contrast is drawn with other sections of the Act which allow such evidence obtained under the Act, or things done under the Act, to be admissible: e.g. ss.10(4) and 10(5) of the Act of 1993. It was submitted that the absence of such a provision in s.13 indicates a lack of intention on the part of the Oireachtas to make evidence obtained on foot of that section admissible.
Under s.13(2) of the Act of 1993 the following subsections are inserted after sub-s.(2) of s. 98 of the Act of 1983: “2(a) A person employed by the company who discloses to any person any information concerning the use made of telecommunication services provided for any other person by the company shall be guilty of an offence unless the disclosure is made – (a) at the request of or with the consent of that other person,
(b) for the prevention or detection of crime or for the purpose of any criminal proceedings,
(c) in the interest of the security of the State,
(d) in the pursuance of an order of a court,
(e) for the purposes of civil proceedings in any court, or
(f) to another person to whom he is required, in the course of his duty as such employee to make such disclosure.
2(b) A request by a member of the Garda Síochána to a person employed by the company to make a disclosure in accordance with the provisions of subs. 2(a) shall be in writing and be signed by a member of the Garda Síochána not below the rank of Chief Superintendent.
This provision effects a number of technical amendments to s. 98 of the Postal and Telecommunications Service Act, 1983, by defining the circumstances in which the monitoring by Bord Telecom of the use made by a particular telephone (a practice known as “metering”) may be disclosed. It should be noted that sub-s.2(b) permits a disclosure, “for the prevention or detection of crime or for the purpose of any criminal proceedings”, and “(c) in the interests or the security of the State”…
It is the view of the Court that the submission made on behalf of the appellant is misconceived, and that the use of the phrase “for the purpose of any criminal proceedings” is entirely apposite for the purposes which arose in the trial in the Special Criminal Court.
The accused also submits that the records were admitted in breach of s.98(1) of the Postal and Telecommunication Services Act, 1983 which is in the following terms:- “98.—(1) A person who—(a) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or(c) does anything that will enable him or another person to intercept,
telecommunication messages being transmitted by the company or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence.”
However subs. 2 provides:
“ (2) Subsection (1) shall not apply to any person who is acting— . . .
(iii) under other lawful authority.”
Provided therefore it is established to the satisfaction of the trial court that the interception is being carried out under lawful authority such evidence is in the view of this Court admissible.
It is submitted on behalf of the appellant that the Criminal Evidence Act, 1992 does not apply by reason of the provisions of s.5(3) and 7 of that Act.
However, as has been outlined above, sub-s.(5)(3)(c) precisely envisages the admissibility of such evidence in:
(i) Criminal investigation,
(ii) Investigation or enquiry carried out pursuant to or under any enactment,
(iii) Civil or criminal proceedings.
Such evidence therefore is admissible provided the same is effected in accordance with the provisions of s. 7 of the Criminal Evidence Act, 1992, which provides safeguards to ensure that the admissibility of documentary evidence does not contravene the constitutional guarantee of basic fairness of procedures of an accused person.
The appellant contends that the Interception of Postal Package and Telecommunication Messages (Regulations) Act, 1993, does not apply to Eircell, the company which was the source of the evidence emanating from this jurisdiction. Reliance was placed on the fact that s.98(2)(a) of the Postal and Telecommunication Services Act, 1983 applies to “the Company” which is in turn defined in s.2(1) as the company referred to in s.10(1)(b). This in turn refers to Bord Telecom Éireann. It is said that this definition does not include Eircell, notwithstanding that Eircell is a subsidiary of Bord Telecom Éireann.
A number of instances have been identified where the separate legal personality of a company has been disregarded.
These include cases -
(1) Where the separate legal personality of the company may be disregarded merely by looking at its controlling members in order to characterise it, i.e. to attribute to it some characteristics such as residence, negligence or mens rea which cannot comfortably be associated with a purely metaphysical entity having no physical manifestation.
(2) Where such a company may be regarded as a mere constituent of a larger legal entity, such as a group of companies. In such cases the legal existence of the company is not ignored but its identity is subsumed in and by a larger entity. This ‘category of disregard’ is sometimes employed for a group of corporate entities regarded as a ‘single economic unit’.
Whilst the broader debate on the circumstances in which the veil may be pierced remains a fraught one, it is clear on the basis of the authorities that parent and subsidiary companies can be treated as a single entity where necessary in the context of statutory or contractual interpretation. Examples of the application of this approach to interpretation in the British courts include Scottish Co-operative Wholesale Society Ltd. v. Meyer [1959] A.C. 324, DHN Food Distributors Ltd. v. Tower Hamlets LBC [1976] 1 W.L.R. 852 and Revlon Inc. v. Cripp & Lee Ltd. [1980] F.S.R. 85. The decision of Murphy J. in the High Court in LAC Minerals v. Chevron Corporation of Ireland [1995] 1 I.L.R.M. 161 also supports the contention that it is legitimate for the court to take account of the economic reality of the parent-subsidiary relationship in aid of interpretation, and that in the appropriate circumstances companies thus related can be treated as a single entity for this purpose.
The authorities which have been cited above clearly indicate that it is legitimate in certain circumstances to treat a group of companies as a single entity when interpreting a statute, as the Court is required to do in this case. It appears to the Court that the principles outlined above apply to the relationship between Bord Telecom Éireann and Eircell.
The Court therefore considers that the objections made to the admissibility of telephone records in this case are ill-founded.
The appellant further contends that such records as were adduced and admitted were an invasion of the appellant’s right of privacy. However, as has been held in a number of cases, the right to privacy is not absolute. It may be superseded by the public interest (see Desmond v. Glackin (No. 2) [1993] 3 I.R. 67), and also may be curtailed by the exigencies of the common good; (see Kennedy v. Ireland [1987] I.R. 587 at 592). Authors Hogan and Whyte, (Kelly on the Constitution, 4th Edition, p. 1441 at fn 254) also specifically draw attention to the right of the authorities legitimately to intercept telephone conversations and postal communications pursuant to the Interception of Postal Packets and Telecommunication Messages (Regulation) Act, 1993.
Finally, the appellant asserts that the admission of such evidence was in contravention of the judgment of the Court of Human Rights in Malone v. The United Kingdom 1985, 7 EHRR 14, now stated to be part of Irish law by virtue of the European Convention on Human Rights Act, 2003.
In particular it is urged that such interception is prima facie a breach of the right to privacy guaranteed by Article 8 of the European Convention on Human Rights which said right requires certain safeguards. These safeguards may principally be found in “legal rules concerning the scope and manner of exercise of the discretion enjoyed by the public authority” in ordering the release of such information. But Sections 8 and 9 of the 1993 Act provide precisely such safeguards as to the scope and manner of exercise of a discretion. In particular they:
(a) Entitle a person who believes that his communications have been improperly intercepted to have his complaint investigated by a complaints referee who is empowered if he/she upholds the complaint to quash the authorisation and make a recommendation for the award of compensation, and
(b) Provides for ongoing review of the operation of the legislation by a serving High Court judge to ascertain whether the provisions have been complied with. This judge may investigate any case in which an authorisation has been given and may also direct the Minister for Justice to cancel such an authorisation.
(c) Such remedies provided by the 1993 Act are without prejudice to the individual’s right to pursue a constitutional action.
(e) The evidence of Mr. Morgan
The evidence given by Terence Patrick Morgan including the sequence of that evidence and the circumstances in which Mr. Morgan retracted evidence previously given by him are fully set out earlier in the course of the judgment. Under this ground the appellant argues that the court erred in accepting the earlier evidence of Mr. Morgan which confirmed that the accused had borrowed his mobile phone on Friday 14th August, 1998, notwithstanding the later evidence given by him, when recalled on 11th January, 2002, to the effect that he had left his mobile phone in an open glove compartment in his van on the work site on 14th August.
It seems clear to this court that the question of the credibility of the evidence given by Mr. Morgan, whether in its entirety or in respect of either of the conflicting accounts given by him, was a matter entirely within the competence of the trial court which had the opportunity of hearing and observing Mr. Morgan while he was giving evidence. While the obvious contradiction between the two accounts given by Mr. Morgan is a matter which was, quite properly, canvassed by the defence at the trial, it does not seem to this court that it would be appropriate for it to seek to ‘second-guess’ the assessment of the credibility of Mr. Morgan. The grounds advanced by the appellant to suggest that the court should decline to accept the trial court’s assessment of Mr. Morgan’s credibility would involve this court in an impermissible enquiry into the assessment made. It was open to the trial court to decide as it did that the evidence given by Mr. Morgan when he was first before the court was truthful. On that basis the court rejects this ground of appeal.
(f) Corroboration
There was much debate both at the court of trial and in this appeal in relation to the extent to which certain categories of evidence should be regarded as corroborative. It was submitted that the court of trial mischaracterised as corroborative certain evidence which was claimed by the defence to be merely supportive. Before addressing this issue it is important to point out that, as a matter of law, the distinction which can properly be drawn between evidence which is in the legal sense corroborative on the one hand or merely supportive on the other hand arises only in a limited number of cases. In the vast majority of circumstances the distinction between corroborative and supportive evidence is of little substance. It is only in the limited category of cases where either:-
(a) Corroboration is required as a matter of law; or
(b) There is established either in case law or as a matter of statute an obligation to warn a jury as to the dangers of convicting without corroboration,
that the technical requirements for evidence to qualify as being corroborative in the formal sense are relevant.
In that context the only issue in this case which required the trial court to have regard to whether there was corroboration stems from the provisions of s.10(1) of the Criminal Procedure Act, 1993, which requires the court to have regard to corroboration in cases involving an alleged statement of admission on the part of the accused. In that context it should be noted that the above section does not require corroboration as a matter of law but would, in the case of a trial by jury, have given rise to an obligation on a judge, in the absence of corroboration, to advise the jury to have due regard to the absence of corroboration. However, it should also be noted that s.10(2) expressly absolves the judge from any obligation to use a particular form of words in giving such advice to the jury.
Applying by analogy the obligation placed upon a judge conducting a jury trial to the circumstances of a non-jury trial such as this, it seems clear that the only obligation upon the trial court in this case was to have regard to the fact that there was potentially a danger in convicting the accused on the basis of his admissions in circumstances where there was no corroboration of same. It is clear that if the accused had been tried before a jury then the trial judge would have been under no obligation to give the advice required by s.10(1) of the 1993 Act in the event that there was any corroboration within the proper legal definition thereof. Provided there was any such corroboration, then the question whether any of the other evidence which might or might not technically qualify as corroboration but which might nonetheless offer support to the prosecution case would be a matter for the jury. Therefore, even if not all of the conclusions of a trial judge conducting a trial with a jury as to what amounted to corroboration were correct a conviction would nonetheless stand in the absence of the advice required by s.10 having been given to the jury provided that there was some corroborative evidence.
As to the test by which it may be determined whether evidence is properly corroborative the prosecution have accepted that corroborative evidence must come from an independent source, that is to say a source outside the witness himself. The prosecution also accepted that such evidence must also implicate the defendant in the offence in a material particular. Reliance was placed upon a passage from Criminal Evidence, 2nd edition, by Richard May, where it is explained in a footnote at p. 330:-“‘Material Particular’ simply means a material fact i.e. a fact which in the circumstances of the case and the issues raised in it is material to the guilt or innocence of the accused of the offence charged. It does not mean that the corroborative evidence has to corroborate the whole of the evidence of the witness who requires corroboration. If this were required the evidence of the complainant or accomplice would be unnecessary. The whole case could be proved by the corroborative evidence. It is sufficient therefore if there is confirmation of a material part of the witnesses’ evidence implicating the defendant in the offence.”
The court accepts that the above passage represents the appropriate test to be applied in this jurisdiction. The court also accepts that statements made out of court which are proved to be false may be capable of amounting to corroboration. Whether such a false statement does, on the facts of any individual case, amount to corroboration will depend upon all the circumstances of the case; Credland -v- Knowler [1951] 35 Cr. App. R. 48.
Applying the above test this court is satisfied that had the trial in this case been before a jury there would have been sufficient grounds for a trial judge to have concluded that there was sufficient corroboration to avoid the necessity to give the advice required by s.10 of the 1993 Act to the jury. In those circumstances it would have been for the jury to decide whether each piece of evidence allegedly offering support to the prosecutions case did in fact do so and did so to a sufficient degree to discharge the burden of proof upon the prosecution. Whether any of the elements which might offer such support would or would not properly amount to corroboration would not then be a matter material to the jury’s consideration. In the circumstances it is not necessary to consider whether each and every one of the items relied upon by the trial court amounts to corroboration in the formal legal sense of the word. Provided that the trial court:-
(a) Was properly satisfied that there was some corroboration, or
(b) Even if there was no such corroboration properly considered the dangers of convicting in the absence of such corroboration,
the court would nonetheless have been entitled to convict on the basis of the admission alone. For this reason the court also rejects this ground of appeal.
(g) Failure to consider properly the defence case.
Under this heading the appellant has canvassed a large number of issues which, it is contended, were raised at the trial and were either not dealt with or not adequately dealt with in the course of the ruling of the court. This court was referred to the judgment of the Supreme Court in O’Mahony -v- Ballagh [2002] 2 IR 410 where Murphy J., delivering the judgment of the court, stated the test to be applied in the case of a judge of the District Court conducting the trial of a criminal offence in a summary manner in the following terms:-“I would be very far from suggesting that judges of the District Court should compose extensive judgments to meet some academic standard of excellence. In practice it would be undesirable – and perhaps impossible – to reserve decisions even for a brief period. On the other hand it does seem, and in my view this case illustrates, that every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing.”
Applying that test the Supreme Court was, on the facts of that case, satisfied that in failing to rule on the arguments made in support of an application for a non-suit meant the trial judge “fell into an unconstitutionality” in the sense in which those words were used by Henchy J. in The State (Holland) -v- Kennedy [1977] I.R. 193 at p. 201. It seems clear that a similar consideration should apply where the Special Criminal Court is delivering a reasoned judgment at the close of a trial such as that which occurred in this case.
It should, however, be noted that the failure which resulted in the quashing of the conviction in O’Mahony -v- Ballagh was a failure to give any reasons at all for a failure to accede to an application for a non-suit. The court noted at p. 415 “that at the conclusion of an important argument which involved important and alternative contentions, the judge merely commented upon the fact that the applicant was indeed drunk.”
While the opportunities available to a court such as the Special Criminal Court to deliver a reserved and reasoned judgment are more extensive than those normally available to a District Judge this court is nonetheless satisfied that it would be inappropriate, for the reasons indicated by Murphy J. in O’Mahony -v- Ballagh to require such a judgment to “meet some academic standard of excellence”. The fact that there may have been many points canvassed in the course of both the evidence and the argument designed to persuade the court to accept or reject evidence tendered by either side does not, of itself, mean that the court is required to rule in detail on each and every point so raised. Unless the judgment of the Special Criminal Court discloses a failure on the part of that court to consider the substance of the key areas argued on behalf of the accused at the trial then it is no part of the function of this court to review whether each and every element of the case made before the Special Criminal Court was commented on in detail in its determination.
While there are, doubtless, a number of matters which were addressed in the course of argument before the Special Criminal Court which are not commented on in the judgment this court is not satisfied that any of same, either taken individually or collectively amount to a failure to address the substance of the defence case.
In those circumstances this ground also fails.
(h) The Two-Month Break
Under this ground the accused complains about the fact that a gap in the conduct of the trial occurred arising on Monday 19th November, 2001 (being day 22 of the trial) which lasted until the court reconvened on Friday 11th January, 2002. The reason for the initial adjournment of the proceedings on 19th November, 2001, was the illness of one of the members of the court which resulted in the President of the Court stating that it would be unrealistic, in his opinion, to set a date earlier than the first day of the following term for a recommencement.
While there may be circumstances (particularly in cases being tried before a jury) where, in all the circumstances of the case, a trial may become so unsatisfactory as to render a verdict unsafe by virtue of a prolonged gap, this court is not satisfied that it has been established that such is the case in the present proceedings.
It must be noted that a trial before professional judges who are experienced in hearing evidence over periods of time, including in many cases trials which are for one reason or another interrupted, is necessarily less open to difficulties resulting from any interruption than jury trials. In that context it should be noted that the case of the People (Attorney General) v. McGlynn [1967] I.R. 232 concerned a jury trial, and the passages from the judgment of both Budd J. (which refers to the possibility of a jury forgetting evidence (at p. 242, 243)) and O’Dalaigh C.J. (which refers to the nature of a criminal trial by jury (at p. 239)) which are relied on, specifically refer to such trials.
While it may be desirable that trials should not be subjected to an interruption of the length which occurred in this case, this court is not satisfied that the interruption is such that, of itself, it would amount to an independent ground of appeal.
The court will therefore set aside the conviction of the accused on the two grounds successfully argued and direct a retrial.
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