Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Mark Doran

Neutral Citation: [2009] IECCA 113


Court of Criminal Appeal Record Number: 237/07

Date of Delivery: 31 July 2009

Court: Court of Criminal Appeal

Between/

Judgment of the court delivered on the 31st July 2009 by Macken, J.

This is an application for leave to appeal against conviction and, exceptionally in such cases, arises against an unusual set of factors. The applicant was convicted of membership of an unlawful organisation, that is, one styling itself the Irish Republican Army, otherwise Oglaigh na hEireann, otherwise the IRA, by the Special Criminal Court on the 14th November 2007 and was sentenced. In the usual way this judgment deals only with the application for leave to appeal against conviction.

The grounds upon which the application for leave to appeal is based, are that the trial court erred in law and/or in fact in:

(1) Going outside the scope of the evidence in applying its knowledge of and in relying upon evidence given in a separate trial which it had heard involving a named person, Patrick Dermody, who was the subject of a charge and was convicted by the court in relation to offences which occurred in the same vicinity and at about the same time as the applicant and who was alleged to have been in phone contact with the applicant.

(2) In relying upon phone records of alleged contact between the applicant and the said Patrick Dermody as evidence from which adverse inferences could be drawn when such evidence, taken at its highest, demonstrated nothing more than mere contact.

(3) In concluding that the responses of the applicant in interview to questions relating to phone contact between him and Patrick Dermody were untruthful, false and misleading, and inconsistent with any innocent explanation.

(4) In concluding that the responses of the applicant in interview to questions relating to phone contact between him and Patrick Dermody fell within the definition of answers from which inferences may be drawn due to either silence, evasion or falsity (the Section 2 ground).

(5) In concluding that the responses of the applicant in interview to questions relating to phone contact between him and Patrick Dermody were corroborative of the belief evidence of the Chief Superintendent given in the course of the trial.

“All of the enumerated grounds of appeal relate to and arise out of evidence in relation to alleged phone contacts with Patrick Dermody whose movements and activities were the subject of a previous trial and conviction by the same trial court”.

“Whilst ground (1) of the application is discrete, it has relevance and application to the remaining grounds, as it is essentially contended by the applicant that the trial court permitted its prior and peculiar knowledge of the evidence in relation to Patrick Dermody, to colour its assessment of the specific evidence presented against the applicant in respect of the offence charged and/or caused itself to go outside the scope of this evidence.

Grounds (2) – (5) inclusive concern the interpretation and application of the evidence adduced in relation to the phone records and the applicant’s responses during interview to questions about alleged phone contact with Patrick Dermody.”

The Legislation:
The relevant law relating to charges of membership of an illegal organisation is well established at this stage. Generally the evidence of the prosecution will include belief evidence of a member of the Garda Siochana of a rank not below Chief Superintendent. This belief evidence is admissible pursuant to the provisions of the Offences Against the State Act 1939 as amended by the provisions of the Offences Against the State (Amendment) Act 1998, s.3(2) of which provides:

“Where an officer of the Garda Siochana, not below the rank of chief superintendent, in giving evidence in proceedings relating to an offence under section 21 of the Offences Against the State Act, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.”

“It has been the practice apparently of the Special Criminal Court not to convict on the belief evidence alone. In my view, that practice is commendable though not absolutely required by statute. There may be exceptional cases where the Special Criminal Court in its wisdom would be entitled to convict on the belief evidence alone. Equally commendable is the practice of the Director of Public Prosecutions of which the court has been informed, not to initiate a prosecution based solely on the belief evidence. These self imposed restrictions by the Special Criminal Court and by the Director of Public Prosecutions are with a view to ensuring a fair trial.”

“Where in any proceedings against a person for an offence under section 21 of the Act of 1939 evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the Garda Siochana in relation to the offence, failed to answer any question material to the investigation of the offence, then the court … in determining whether the accused is guilty of the offence may draw such inferences on the failure as appears proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure.” (emphasis added)

The provisions of s.2 have been amended, by the addition of the following s.2(4):

“In this section

(a) …

(b) References to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the accused shall be construed accordingly.” (emphasis added)

"(b) In paragraph (a) of this subsection 'conduct' includes—

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

(ii) omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive."

Two separate search warrants were issued which authorised searches of the apartment, and the locker of the applicant at his workplace. Items were recovered from each location on the 26th October 2006. It is clear from senior counsel’s very proper opening of the case at trial that only those items recovered from the apartment were considered to be of real evidential significance. These are considered below.

The applicant was thereupon arrested under s.30 of the Offences Against the State Act 1939, as amended. Gardaí interviewed him on seven or eight separate occasions on the 26th and 27th October 2006. During the course of some of these he was asked, inter alia, about his phone or personal contact with Patrick Dermody, which he acknowledged, and was also questioned in relation to alleged association with several other named persons including those mentioned in relation to the above surveillance. He denied knowledge of them. The court was referred to the several interviews between the applicant and the gardaí as recorded in the transcript. These too are dealt with later in this judgment.

It is relevant in the context of this particular application, and the evidence adduced, to note two matters. The first is that the prosecution in this case followed on shortly after the trial of Dermody. Dermody was, according to the transcript, arrested at Garryhundon, County Carlow, following an incident and a crash on the 25th October 2006, and was found in an outhouse at about 6.40 am on the 26th October 2006, having left behind a firearm - a sawn off shotgun - and ammunition for which he was charged and pleaded guilty. He was also charged with membership of an illegal organisation, to which he pleaded not guilty, but was convicted and sentenced. The second is that the applicant was arrested on two charges: (a) possession of information in relation to the unlawful possession of a firearm at Garryhundon, County Carlow, on the 25th October 2006, and (b) membership of an unlawful organisation on the 26th October 2006. Although arrested on the two possible charges, he was not charged with any offence which concerned the above events at Garryhundon, or with the firearms charges to which Dermody pleaded guilty. It was stated by the prosecution during the trial that it was not relying on the applicant having any such connection. He was charged with the single count of membership of an illegal organisation. Having been arrested on two charges, the interviews and the applicant’s responses cover both charges, and must be read in that light. The applicant was also questioned in relation to three pieces of ammunition found on open display on a mantelpiece at the apartment where he lived, but these were subsequently accepted by the prosecution as belonging to a third party, as the applicant had contended.

The Appeal:
It is necessary in this case to cite certain parts of the judgment of the trial court, in light of the basis upon which the prosecution proceeded, and the grounds of appeal. According to the judgment “the prosecution can be generally referred to under five bullet headings: (1) The evidence of Chief Superintendent Michael Byrnes, (2) Material recovered on the search of the apartment where the accused was living, (3) Telephone records, (4) Interviews, (5) Surveillance.”

The belief of Chief Superintendent Byrnes:
The Court deals with the heading under (1) above, “The evidence of Chief Superintendent Michael Byrnes”. According to the judgment this was divided into two parts, under two separate titles “The evidence of the Chief Superintendent” and “The belief of Chief Superintendent Byrnes”. The trial court in its judgment referred to the belief evidence of Chief Superintendent Byrnes, pointing out that it had been challenged as being erroneous, and concluded as follows:

“Essentially therefore no other substantive controverting material was put to the Chief Superintendent in the course of evidence or cross examination. In the circumstances the court is justified, inter alia, having regard to the absence of any challenge to the integrity of the Chief Superintendent, that it is weighty and substantive belief evidence which in this case is substantially corroborated by other independent evidence of the type which has later been outlined.”

Because he is a member of the Garda Siochana not below the rank of Chief Superintendent, the belief evidence of this particular witness, and only of this witness, is rendered admissible by the provisions of section 3(2) of the Act of 1939, as amended. He gave evidence of being 33 and a half years as a member of the Garda Síochána, held the rank of Chief Superintendent for approximately four years, and was responsible for the Carlow/Kildare Division. He was aware of an investigation being carried on in the Carlow area into activities of an unlawful organisation, in or around the 25th and 26th October 2006, which involved personnel from his Division, and from national units attached to Garda Headquarters and to the Special Detective Unit in Dublin.

The following is his relevant belief evidence, on examination in chief by counsel for the prosecution:

Q. Now on 25th October 2006 did you become aware that a firearm and ammunition had been found at a location at Garryhundon in Carlow?

A. That is correct.

Q. That a motorcycle which been stolen in Dublin was also found there?

A. That is correct, my Lord.

Q. I think you knew on 26th October 2006 that Patrick Dermody was in custody.

A. That is correct my Lord.

Q. In Carlow Garda Station.

A. That’s correct.

Q. And I think it also came to your attention on that date that Mark Doran, the accused, of 18 Poachers Lock Leighlinbridge had been arrested by Detective Garda Matthew Phylan at 12.45 p.m. on 26th October 2006 in Tullow, Co. Carlow, on suspicion of possessing information relating to the unlawful possession of firearms on 25th October 2006 and membership of an unlawful organisation on the 26th?

A. That is correct, my Lord. It is Detective Garda Matthew Phylan of Carlow Garda Station performed the arrest.

A. …

Q. Now do you have responsibility, amongst other things, for the assessment of intelligence relating to subversive and criminal matters within the Carlow/Kildare Division?

A. That’s correct my Lords.

Q. Now do you have any particular belief in relation to the accused Mark Doran:

A. On the basis of confidential information available to me, I believe, that Mark Doran born on 10th July 1980, of 18 Poachers Lock, Leighlinbridge Co. Carlow, is within the State a member of an unlawful organisation styling itself as the Irish Republican Army, otherwise known as Oglaigh na hEireann otherwise known as the IRA, and was a member of that organisation on 26th October 2006. I do not base this belief on any matter discovered during the investigation into the activities of Mark Doran at the time on or after his arrest on 26th October 2006 or any conduct admissions statements or replies made by him during the course of that investigation or during the course of his detention.

Q. Did you base that belief on anything discovered in the course of the search of Poacher’s Lock apartment on 26th?

A. No my Lord its an independent belief held by me.

Q. And you claim that is on the basis of confidential information.

A. That is correct my Lord.

Q. Is that information from Garda sources and/or civilians, or are you in a position to say?

A. It’s a combination, my Lord.

Q. Thank you very much.

That was the extent of his evidence. It was pithy, tendered in the usual way in which such evidence is given, the Chief Superintendent confining himself in his relevant evidence to expressing his belief, and that his belief did not depend on events which occurred on the arrest of the applicant on 26th October 2006, on anything found on the searches, or on the responses given by the applicant to the gardaí during interview. He gave no other evidence.

The court now turns to the second finding of the trial court under the first above heading “The evidence of the Chief Superintendent”.

In the judgment, under this heading, the trial court found as follows:

“The Chief Superintendent Michael Byrnes has held the office of Chief Superintendent for a period of four years and is Chief Superintendent for the Carlow/Kilkenny area. He has been a member of An Garda Síochána for a period of 33 years. He was aware that on 25th and 26th October 2006 an investigation was carried out in Carlow/Kilkenny area involving members of An Garda Síochána from his own area and also from the Special Detective Unit and the Crime and Security Section of An Garda Síochána from Dublin.”

The only evidence given by a Chief Superintendent was that of Chief Superintendent Byrnes. “Chief Superintendent Michael Byrnes” is mentioned in the first line of the transcript under this heading, and the judgment refers specifically to the fact that he was a member of the Garda Síochána for a period of 33 years, the only witness who gave evidence of such service. It is clear from the transcript that this evidence, combined with his belief evidence, formed two key elements in the trial court’s judgment. In particular they found that none of the evidence just recited “was challenged or uncontroverted” and that as to his belief, that there was no “substantive controverting material” put to him. The judgment makes it clear that the learned trial judges considered that his evidence, because it was neither challenged or controverted, was of considerable significance, and combined with the belief evidence, which was in fact given by Chief Superintendent Byrnes, was corroborated or supported by other evidence.

However, this witness did not give the latter evidence ascribed to him at all, save for the introductory portion concerning his position and length of service. Detective Superintendent O’Sullivan, whose evidence has no particular statutory standing of a type which may be given by a Chief Superintendent, gave evidence that he was in court for the convictions of Patrick Dermody who had pleaded guilty to unlawful possession of firearms with intent and to unlawful possession of ammunition charges, and who was convicted by the trial court of membership of an unlawful organisation. He went on to give evidence that Dermody had apparently been seen in Dublin in the company of other men, that Dermody had brought a bike to Carlow, where he, Dermody, had stored it in a pub where the accused worked. This was apparently said in evidence in the trial against Dermody, since the witness gave no indication that he knew any of this from personal knowledge. The court notes that the judgment cites the evidence as including a statement that the bike had been “stored in a garage” in Finglas, although in fact this witness did not say this, and also cites the evidence of the ascribed witness as including that the bike was “abandoned or crashed at 9.30 in the evening” but a review of the transcript shows that this witness gave no evidence relating to the time of abandonment of the bike.

Detective Superintendent O’Sullivan gave no evidence whatsoever in relation to the applicant, or of any association between the applicant and Dermody, or of any surveillance of the applicant, and in fact gave no evidence at all in relation to him except to say that Dermody stored the motor bike at a car park of the hotel where the applicant worked. It is not clear to this court how such evidence was material to the charges against the applicant, and more importantly, how it could have been “challenged or controverted ” by him. Rather it was apparently tendered to establish the wrongdoing of Dermody, and by that means possibly to implicate the applicant in the described activities. The trial court, however, erroneously adopted this evidence, which had no particular statutory standing, having ascribed it to Chief Superintendent Byrnes. This court concludes that by eliding of Detective Superintendent O’Sullivan’s hearsay evidence, such as it was, and bearing in mind it did not concern the applicant, and in elevating it by ascribing it to that of Chief Superintendent Byrne whose belief evidence has a particular status, as well attaching to it the weight of being neither “challenged or uncontroverted”, the trial court fell into error. It cannot reasonably be excluded that this erroneously elided evidence which was of particular importance, according to the transcript, was not of significant influence on the deliberations of the trial court in reaching its conclusions as to the guilt of the applicant

Surveillance:
Although the surveillance evidence led by the prosecution was rejected by the trial court, it forms an essential element in the case made by the applicant in this application for leave. It is appropriate therefore to deal next with this evidence.

An essential element of the prosecution case was based on alleged “associations” of the applicant, within the meaning of “movements, actions, activities or associations on the part of the accused person”- being “conduct” as defined in s.4 of the Act of 1998, with named persons, Clarke, Bollard and Forsythe as well as with Dermody. The surveillance was led on the perfectly proper basis of establishing such alleged association. Evidence was given by several gardaí that surveillance took place on the 6th September 2006 and on the 18th October, 2006. The surveillance took place by tracking the first three persons, all, on the evidence, based in Dublin.

The court commences with the evidence of Detective Superintendent Diarmuid O’Sullivan. His relevant evidence is set above. It will be recalled he said Dermody came from Leighlinbridge, but he did not know where he was living at the time of his arrest, that Dermody was seen in the company of Clarke and Bollard in Santry, on the 22nd October 2006, that Dermody had been instructed by a suspected member of the IRA in the Carlow area to travel to Dublin to collect a motorbike stolen by members of the Real IRA in Dublin, that Dermody had met Clarke, Bollard, and a Ruairi Convey there and brought the bike to Carlow, that Dermody stored it in a pub in the Leighlinbridge area, the Lord Bagenal Inn, where the applicant worked, for three days. On the 25th October 2006 the bike was “seen near Carlow town, and was followed by gardaí”. The bike was abandoned or crashed and Dermody left the scene, leaving behind a knapsack with a sawn-off shotgun in it. He, Dermody, had been arrested the following morning, the 26th October 2006 at about 6.40am in a shed at the back of a house of an Alan Ryan. It was said that Ryan, “had been stopped from travelling to Dublin to collect the bike for this operation”.

That was the extent of the evidence of this witness. The only dates he mentioned the 22nd and 25th October 2006 in that evidence, were not either of the two dates relied on by the prosecution in its opening in relation to alleged surveillance of the applicant, which were the 6th September 2006 and the 18th October 2006. The relevant evidence as to these two dates can briefly be described, as follows:

(a) Detective Sergeant Lee gave evidence of surveillance on the 6th September 2006. He saw Bollard driving from Lucan to a petrol station on the Naas Road, Dublin and then towards the Red Cow Hotel where Forsythe got into the car and they travelled to Carlow, stopping in Castledermot, where Forsythe took a bag out of the car and put in on the bonnet. No further evidence was given in relation to the bag. They then travelled to Leighlinbridge. At about 9.15 p.m. he noticed both men, with a third, unidentified and undescribed male, walking from the car back towards the town, towards Poachers Lock apartments. They disappeared from view. At about 11.25 p.m. he saw a different (unidentified) car pull up outside the Poachers Lock apartments. Forsythe and Bollard got out of this car, and again disappeared from view. At 11.55 p.m. both men came up from the waterfront, walked back to Bollard’s original car, and drove back to Dublin, reaching Dublin at about 1.40 a.m.

(b) Detective Una Shanley was also on duty on the 6th September 2006 in Lucan. She saw Bollard driving an Opel car towards the Naas Road. He stopped at McDonalds. A short time later she saw Forsythe getting into the car, which drove to Castledermot. She saw these two later at Leighlinbridge in the company of, or following, a third, unidentified and undescribed, man. She followed the third man on foot and he went down towards the waterside and out of her view. Later she noted a Toyota Corolla car coming from the Dublin side of the village. She saw Bollard and Forsythe exit that car, close to the Poacher’s Lock apartments. They went out of her view. Much later again she saw Bollard and Forsythe coming from the waterside up to the road, and left in the car in which they had travelled from Dublin.

(c) On the 18th October 2006 Detective Sergeant Healy saw a black Opel car belonging to Bollard, parked at McDonald’s restaurant at the Naas Road in Dublin. He saw Bollard there accompanied by Clarke. On the same day, at 6.45 p.m. he saw Forsythe on the Naas Road, walking past McDonalds towards the Red Cow Hotel. The car drove off with the first two persons. Later he saw the same car in Carlow town at about 8 p.m. with Clarke in the passenger seat, and later again he saw it seemingly driving into the Poachers Lock apartments in Leighlinbridge, with three persons in it, one being Clarke. The other two he was unable to identify. Later, at about 9.45 pm the same car was seen by him on the Dublin side of Carlow town, and Bollard was driving the car, with Clarke and Forsythe also in it.

(d) Finally, Detective Garda Barry gave evidence of seeing Forsythe walking along the Naas Road on the same evening, the 18th October 2006, and of seeing Bollard in the same car, and also Clarke. He gave no other evidence.

Philip Forsythe had been convicted, according to the evidence, of unlawful possession of a fireman with intent to rob, unlawful possession of ammunition with intent to rob, and assault with intent to rob, and was sentenced to seven years imprisonment, but no evidence was tendered as to charges or convictions for membership of an illegal organisation in respect of any of the named persons, or even that they were, in fact, considered by the gardaí to be members of such unlawful organisations. No evidence was tendered that they were “stated to be involved in subversive activities” as the court found. The furthest the evidence went was to include these people, with others, in the group of persons being “monitored” in connection with the activities of the Real IRA, which this court fully accepts.

More importantly, there was no evidence that the applicant had any knowledge of, or association in person, by phone or otherwise, with any of the above named people, and no evidence of any contact, good bad of indifferent, between the applicant and Clarke, Bollard or Forsythe or the other person mentioned, Convey. Nor was there any indication, and no evidence to suggest that there ever had been, in the period before the 25th or 26th October 2006, or at any time, any other form of contact between the applicant and any of these persons. Three other named persons, one in Dublin, one in Carlow and one in Athy were also mentioned during the course of the seven or eight interviews, and one in the evidence of Detective Superintendent O’Sullivan. No evidence was tendered by the prosecution of association of any kind between the applicant and any of them, even accepting they were considered to be involved in subversive activities.

Counsel for the applicant contends that on a correct reading of the surveillance evidence, it was supportive of his contention that the prosecution failed to establish beyond reasonable doubt the alleged association. Counsel for the applicant argues further, correctly in this court’s view, that if there had been any evidence to support the allegation of association with any of the above persons, clear evidence would have been adduced to establish the same. Moreover, the evidence suggests surveillance, not of the applicant, but possibly of Dermody. No witness gave evidence suggesting they were carrying out surveillance of the applicant at all. Finally counsel submits, again correctly in this court’s view, that if there were any evidence to suggest any unlawful association between the applicant and Dermody in relation to the acquisition, transport and/or storage of a motorbike, this would clearly have been found during the surveillance exercise on the 22nd October 2006, in respect of which Detective Superintendent O’Sullivan gave evidence. Equally if there had been any known connection whatsoever between the applicant and Dermody in relation to the activities which occurred on the night of the 25th October 2006 when Dermody was, on the evidence, followed by gardaí in Carlow, that association would have been then uncovered, but was not.

Counsel submits rather that the prosecution introduced the evidence relating to the activities of Dermody and of the surveillance of Dermody in order to create an unjustifiable and unjustified link between Dermody’s activities and the applicant. Although the prosecution stated it was not relying on any of the events involving Dermody at Garryhundon, on the 25th October, junior counsel’s comments in summing up mentioned these very activities, specifically for the purposes of assessing the timing of telephone calls made by Dermody. This appears to have influenced the court, as it stated its judgment:

“The court notes that Patrick Dermody made an additional telephone call to the accused at 23.55 and 20 seconds on the same night. One of a series of three made between that time and 00.36 and 9 seconds very early in the morning of 26th October 2006. The significance of the timing extent and frequency of these phone calls is relevant circumstantial evidence in that they related to the period between Mr Dermody having left the crashed motor cycle on 25th October and his arrest afterwards on the morning of October 26th.”

The above evidence is referred to also for the purpose of considering and comparing the “association” alleged against the applicant, as concerns the persons “being monitored” in relation to an illegal organisation on the one hand, which this court does not fine was established, and the longstanding friendship which the applicant admitted openly he had with Dermody on the other hand. The only evidence of any association between the applicant and Dermody was in fact the evidence given by the applicant himself, and, on his evidence, did not extend to the events the subject of surveillance on any of the dates mentioned or to the events involving the above persons on the 22nd October 2006, or with the Dermody events on the 25th October 2006 at Garryhundon, County Carlow, and none of his responses could properly support any finding of such an “association”. Absent any other evidence, the Court finds that the applicant’s own evidence of his association with Dermody is consistent with the friendship he described, and is not satisfied that this evidence could be taken by the trial court, on its own, as corroborating the Chief Superintendent’s belief. The Court therefore turns to that part of the judgment covering the findings on the telephone contact upon which the trial court relied to establish such an association, and which the court found was corroborative of the Chief Superintendent’s belief.

Telephone Contact and Responses at Interview:
The trial court relied on such records or contact in two respects, one on the basis, or apparent basis, of simple contact between the applicant and Dermody, and the second on the basis of responses at interview which the trial court found were untruthful and evasive and from which it drew adverse inferences pursuant to s.2 of the Act of 1998. It is helpful firstly to set out briefly what the applicant said in relation to Dermody during the interviews which was as follows:

(a) He had known Dermody to see for about nine years;

(b) He had known him to speak to for about four years;

(c) They both lived in the same very small village which had a well known hotel/public house premises called The Lord Bagenal where the applicant worked;

(d) Dermody was or would have been at the apartment on several occasions, or at parties which his, the applicant’s sister, had at the apartment.

(e) The applicant had worked in The Lord Bagenal for at least nine years, and when off duty frequently drank at one of two pubs in the village, where other staff, and young people known to him, including Dermody, also drank;

(f) He did not know that Dermody was a member of any illegal organisation, and did not believe he was. Nor had he ever seen him on a motor bike, did not believe Dermody owned a motorbike, nor did he know anything about its storage in the car park at the Lord Bagenal Hotel, which was a wide open area. Nor did he know about any plans to have a named person shot, did not know that person, and did not know if Dermody owned a gun;

(g) He also gave answers relating to items found in his bedroom at the apartment where he resided. These latter are dealt with separately in this judgment.

It is necessary therefore to see whether, independently of the above association, consistent with an openly acknowledged friendship or good acquaintanceship, there was evidence challenging or undermining this association, led by the prosecution, and/or arising out of inferences properly drawn from the responses given, to justify the trial court rejecting his evidence entirely and finding that his responses could be accepted as corroborative of the belief evidence of the Chief Superintendent. The court turns therefore to the telephone records upon which the trial court based its findings of such an association, and its further findings of corroboration of the belief evidence of the Chief Superintendent, and of what the trial court described, in relation to events at Garryhundon, as “circumstantial evidence” arising from telephone contact.

The telephone records and the responses concerning telephone contact with Dermody:

As mentioned, telephone records were dealt with in two separate ways. First, independently, as telephone contact, per se, and secondly arising from the responses given to questions posed in the course of interviews concerning such contact..

As to the telephone records, per se, this was invoked by the trial court in its judgment by reference to Patrick Dermody’s involvement in the events at Garryhundon in County Carlow on the 25th October 2006 and his subsequent arrest on the 26th October 2006. The court stated:

“It will be recollected that the incident which precipitated the ultimate arrest of Patrick Dermody occurred on 25th October. He was ultimately arrested early in the morning of 26th October 2006 in a shed at the rear of a house owned by Mr Alan Ryan.”

“During the period of 18th to 26th October 2006 a total of 51 calls and 15 texts were made between the accused and Patrick Dermody. In particular the accused’s phone was credited with making 17 telephone calls and ten texts in that total period of communications. The evidence established that Patrick Dermody was operating three separate telephones during the relevant period. In that time he made one phone (call) to the accused on a further telephone which he owned but one other than which he normally used. It is notable that on 25th October he made a further single telephone call to the accused on a phone which he did not otherwise use. This telephone call was made in the late afternoon at 17.40 and 13 seconds. The court notes that Patrick Dermody made an additional phone call to the accused at 23.55 and 20 seconds on the same night, one of a series of three made between that time and 00.36 and 9 seconds very early in the morning of the 26th October 2006. The significance of the timing, extent and frequency of these phone calls is relevant circumstantial evidence in that they relate to the period between Mr Dermody having left the crashed motor cycle on 25th October and his arrest afterwards early on the morning of the 26th October. There is further significance in the light of the responses made by the accused in the course of interviews made after his arrest on 26th October 2006 to which reference is now made.” (emphasis added)

“There will be evidence before the court of telecommunications between the Applicant and Mr. Dermody on the 18th October 2006, the 19th, 20th, 21, 22, 23, 24, 25 and the 26th and the court will see from his answers given in the course of interrogation that he was evasive about these telephone communications.”

Mere telephone contact between the applicant and Dermody cannot, without more, constitute in the face of an openly acknowledged friendship, corroboration of the belief evidence. The position might be different the court believes if the particular telephone contact was out of the ordinary in terms of day to day exchanges between the parties claiming a friendship, but there was no evidence led of any telephone contact at any other period. Moreover, a considerable part of the trial court’s finding on telephone contact, per se, concerned evidence of the operation by Dermody of phones which he did not otherwise use, which cannot constitute evidence against the applicant. Nor is the court satisfied that the trial court was entitled to find that the “timing, extent and frequency of calls” by Dermody to the applicant as constituting “circumstantial evidence”, at least without clear reasons being ascribed for the finding but based on mere telephone contact, this is not at all evident. No legal reasoning was expressed by the trial court for this finding.

The court is satisfied that mere telephone contact of the type described has not been established by the prosecution as being such as to corroborate the belief evidence of the Chief Superintendent, having regard to the foregoing evidence, and that the learned trial judges fell into error in finding that there was circumstantial evidence to be derived from the records..

As to the second manner in which they were used, the telephone records formed one of the major planks of the prosecution case, because, it was argued that these established that the responses given by the applicant during cautioned interviews were evasive, and that the court was therefore entitled to draw inferences from them, as it did, pursuant to s.2 of the Act of 1998, to corroborate the belief evidence of the Chief Superintendent. The finding of the court was in the following terms:

“Taken individually or cumulatively the responses were, as demonstrated by evidence, evasive and untruthful and fall within the definition of answers from which inferences may be drawn either by silence or by evasion or falsity. These responses are to be seen as corroborative of the belief evidence of the Chief Superintendent. The accused did not give answers or explanations to any different or contrary effect.” (emphasis added)

It is not the case, in law, however, that inferences can be drawn from the mere fact that telephone calls are made by or between parties, even on a daily or more frequent basis. The Act of 1998 provides that inferences may be drawn from responses made to questions posed. The trial court can draw inferences, as it must in appropriate cases, from questions posed, but those inferences must have regard for and he judged on the basis of the questions actually posed and the responses actually given. This is evident from the actual wording of the Act of 1998, (as amended). Those responses to the questions posed can then be considered against factual material presented, such as a grid showing telephone or other records, and by which the responses can be assessed for evasiveness or for failure to respond. In the present case, apart from a failure to respond to one particular question, to which the court will return, the responses were said to be evasive, within the meaning of s.2(4) of the Act of 1998.

The trial court made findings on the mere existence of phone calls between the period the 18th October and the 26th October in the extract referred to above, although questions posed in interview in relation to telephone contact were confined to three dates only, the 22nd October, the 23rd October and the 25th October 2006, from the long list of dates originally invoked, and were also confined to particularly framed questions such as “Were you talking to Patrick Dermody on the phone last night?” Brief questions of particularity were put only in relation to the three dates. Those three dates were also invoked by the learned trial court in its judgment. No questions at all were posed in respect of the 18th, 19th, 20th, 21st 24th, or 26th October 2006, or any of the other dates upon which the prosecution sought to rely. In light of the decision which this court proposes to give, it is inappropriate to go into further detail of the actual content of the questions posed and the answers given.

The conclusion to be drawn from this evidence is that, apart from one telephone call on the evening of the 22nd October 2006 which appears to be referable to an event on the following evening, the inferences the court drew could only be validly drawn if the content of the questions actually posed are not considered relevant, which in the view of this court, is not permissible. The exception to the normal rules of proof provided for in s.2 must be construed appropriately, which may mean fairly strictly, given that the inferences permitted to be drawn are themselves to be used to corroborate belief evidence which, in turn, is not capable of being challenged against a claim to confidentiality invoked, as here, by all Chief Superintendents, and which this court fully accepts and affirms. Moreover, the questions were confined to three specific dates, from all of the several dates invoked originally.

Can it be said therefore that the learned trial court was correct in invoking as it did, the following facts as “circumstantial evidence”, or that they corroborated the belief evidence of the Chief Superintendent: Since, during the period 18th to 26th October 2006 a total of 51 calls and 15 texts were made between the applicant and Patrick Dermody, of which the applicant made 17, the replies given by the applicant in relation to contact made with or between acknowledged long standing friends, was such as to permit it to conclude, that whether taken “individually” or “cumulatively”, although confined to three specific dates, the responses were, as demonstrated by evidence, evasive and untruthful, and are such that inferences may be drawn from the evasion or falsity, and that they “are to be seen as corroborative of the belief evidence of the Chief Superintendent.” Finally the trial court, in dealing with the telephone calls and the inferences to be drawn, stated: “He could not have forgotten the many telephone calls with Patrick Dermody which took place within days prior to the interviews. It was not suggested he had forgotten them or that there was any innocent explanation for the false answers.”

The telephone contact, and the inferences drawn from the responses, appears to have been based on the extent of contact evidenced by the grid referred to above, rather than by being approached on the basis of the questions posed and answers actually given. No questions were put regarding contact by phone or otherwise, save the specific questions referred to above as to specific dates and specific types of contact. If wider or other questions had been put to the applicant, it is not known what answers might have been given, or whether any such answers might have been truthful, evasive, or otherwise. It is also clear that, for the most part, the gardaí interviewing the applicant were very experienced gardaí, some of them from the Garda Special Unit charged specifically with monitoring the activities of illegal organisations and possible membership thereof. The questions therefore must have been put, and are assumed by this court to have been put, with specific reference to what the gardaí were looking for in that regard, were carefully chosen, and were intentionally put. The answers must be considered in that light.

As mentioned, the prosecution, in opening the case stated they would be relying on evidence of telephone contacts on every single day during the nine day period invoked, and to the responses given to questions in respect of them. This appears to the court to be an incorrect approach having regard to section 2 itself, unless questions were posed in relation to all these dates. The learned trial court appears to have adopted the above proposed approach put forward on behalf of the prosecution in opening the case. In closing the case, counsel for the prosecution, specifically referred the court to the events at Garryhundon and to the fact that Dermody had pleaded guilty to the firearms offences and sought to tie in these with the making by Dermody of telephone calls.

The trial court fell into error in going beyond the appropriate analysis of the questions posed and any limits inherent in those, and the answers given, and in finding corroboration in the simple number of telephone contacts between the parties. The trial court, while looking at the telephone records produced and checking the responses, erroneously went far beyond the questions posed, as is evident from the extracts cited. The finding “He could not have forgotten the many telephone calls with Patrick Dermody which took place within days prior to the interviews” was an also an erroneous finding in law, there being no evidence at all as to what the applicant might have said in relation to phone calls or text messages alleged to have taken place on the 18th, 19th, 20th, 21st , 24th or 26th October 2006 and nothing can properly be deduced from such mere contact.

The materials found at Poachers Lock:
To understand the findings of the trial court on the matters found at the applicant’s apartment, it is necessary to detail them briefly. All were found openly strewn, according to the garda evidence, in the bedroom, and not in any way hidden. The warrant for the search, both of the apartment and of the applicant’s locker at the Lord Bagenal, was based on information or knowledge of the gardaí, as stated in the evidence of Detective Sergeant Egan:

“… an incident had occurred in the Garryhundon area of Carlow involving a member of the Real IRA during which a firearm was recovered and a motorcycle and the following morning, the 26th October, Patrick Dermody had been arrested and taken to Carlow Station where he was detained under section 30 of the Offences against the State Act.”

“I believed that there was information in relation to the scheduled offence under part 5 of the Act, that being, unlawful possession of a firearm to be found at 18 Poacher’s Lock, Leighlinbridge, Carlow; and that Mark Doran’s locker in the Lord Bagenal, …” (emphasis added)

(a) A green military style jumper, black combat-style trousers; a black polo shirt an a military-type belt, a pair of black sunglasses and a black beret;

(b) two mobile phones, one a Nokia and one a Sagem;

(c) a number of Easter Lily badges, being over 100;

(d) five books of raffle tickets for 2IRPWA, in aid of the republican prisoners’ dependents, gala Christmas draw”;

(e) 160 copies of a newspaper called Sovereign Nation, for various dates, February/March 2006, April/May 2006 and October/November 2006 – being the newspaper of the 32-County Sovereignty movement;

(f) a national flag;

(g) some photographs, showing a number of people wearing a type of army uniform, carrying flags, one of a young male in a uniform addressing a crowd, and another of a number of people carrying flags, in military uniform;

(h) several documents being a media pack of the 32-county Sovereignty movement, Irish Democratic Framework for Unity (an introduction), a second one for March 2001, being a submission by the latter movement to the United Nations; four copies of the constitution of na Fianna Éireann; and finally Preparing for Irish Democracy by the 32-County Sovereignty movement. Also Fianna Éireann information, published by the Irish Freedom Press, and a newspaper cutting of the 13th February, 2006, on “The Real IRA’s youth wing try to recruit 11 year-olds.” and a Paper, the Irish Times of 28th March the 1916 Rising.

(i) a book called Profile of the Criminal Mind, The Armed Struggle, A History of the IRA, The History of a Nation, and DVDs Land of Freedom, the Battle of Algiers and two on Europe’s Secret Armies, and two bodhrans, one marked from the republican wing with signatures on the back., Dessie McCabe, Paul McCarthy, Gearoid Mooney, D. Bray, Alan Hickey, Tomas Barry, Malachy McGuire, Kieran Rafferty and Seamus O Donovan.

(j) a sports scanner box, empty;

(k) nokia mobile phone (a different one); other than Nokia phone taken from him on arrest.

(l) finally, a series of documents in pockets, not in a particular order, but all concerning army rules and manoeuvres, weaponry, field craft and such information.

The explanations given by the applicant were not challenged in the normal sense, by any evidence to the contrary. Rather, it was submitted by counsel that the responses given by the applicant were correctly to be inferred as being of a nature as to constitute corroboration of the evidence of the Chief Superintendent’s belief. The trial court stated: “When taken in conjunction with the independent evidence regarding the telephone contacts between himself and Patrick Dermody and the untruthful responses at interview, the Court considers that there is substantial corroborative evidence to the belief of the Chief Superintendent which corroborative evidence is independent of any basis of the belief of that witness.”

The items found following the searches are clearly troubling material, and important in the overall evidence in a case such as this. Having regard however, to the decision of the court, and the order it proposes to make, it would be inappropriate to make any other findings in relation either to these materials, or, as has been said, the telephone contacts, or on any other aspect of the evidence.

Conclusion
Having regard to the findings set out above, the court is not satisfied that it has been established that the applicant was guilty of the charge against him. This court will, in the circumstances, treat this application for leave as the hearing of the appeal, will set aside the conviction of the applicant and direct a new trial.