Judgment
Title: | Director of Public Prosecutions -v- Gilligan |
Neutral Citation: | [2005] IESC 78 |
Supreme Court Record Number: | 154/04 |
Court of Criminal Appeal Record Number: | 2000 71 |
Date of Delivery: | 11/23/2005 |
Court: | Supreme Court |
Composition of Court: | Denham J., Mc Guinness J., Geoghegan J., Fennelly J., Macken J. |
Judgment by: | Denham J. |
Status: | Approved |
Details: | Dismiss the appeal of the applicant insofar as it relates to his convictions |
| Judgments by | Link to Judgment | Concurring | Denham J. | | Mc Guinness J., Geoghegan J., Fennelly J., Macken J. | |
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THE SUPREME COURT
Appeal No. 154/2004
Denham J.
McGuinness J.
Geoghegan J.
Fennelly J.
Macken J.
Between/ THE PEOPLE at the suit of THE DIRECTOR OF PUBLIC PROSECUTIONS
and
JOHN GILLIGAN
Applicant/Appellant
Judgment delivered on the 23rd day of November 2005 by Denham J
1. Issue.
At issue on this appeal is the use of evidence in a trial from persons who were in a Witness Protection Programme. Is such evidence consistent with the rights of an accused? Is it consistent with constitutional due process? Is corroboration required? If corroboration is required what is the test?
2. Certified Questions
On the 2nd day of February, 2004 (order perfected on the 11th day of March, 2004) the Court of Criminal Appeal certified, pursuant to s.29 of the Courts of Justice Act, 1924, that its decision on the 8th day of August, 2003, refusing leave to appeal against a conviction of the Special Criminal Court on the 15th day of March, 2001 on charges of possession of a controlled drug for the purpose of selling or otherwise supplying to another and unlawful importation of a controlled drug, involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on that decision. The points of law certified were:
(i) In what circumstances and to what extent is evidence which may have been obtained from witnesses under a state Witness Protection Programme inadmissible and/or inconsistent with trial in due course of law as guaranteed by Article 38.1 of the Constitution?
(ii) Is corroboration in the sense described in R v Baskerville [1916] 2KB 658 required in respect of the testimony of accomplice witnesses who have participated in a state Witness Protection Programme? If not what is the appropriate test in relation to such witnesses?
3. Grounds of appeal
In accordance with the jurisprudence of this Court, an appeal under s.29 of the Courts of Justice Act, 1924 operates as a full appeal from the decision of the Court of Criminal Appeal. In addition to grounds based on the two certified points of law, a full set of grounds of appeal was lodged with this Court, comprising the same grounds of appeal as were argued before the Court of Criminal Appeal.
4. The Applicant
This appeal is brought by John Gilligan, the applicant/appellant, hereinafter referred to as “the applicant”.
5. The Trial Court
Arising from the certified questions in this case and the general grounds of appeal, it is necessary to consider the judgment of the trial court in some detail. The trial court in these proceedings was the Special Criminal Court. That court made determinations of fact and law, gave verdicts of guilty and not guilty, and imposed sentence. Unlike a trial before the Central Criminal Court or the Circuit (Criminal) Court there was no jury to determine the facts. The judges of the Special Criminal Court found the facts in this trial. As a consequence, we have the benefit of a detailed judgment setting out the facts found by the trial court, unlike a trial with a jury where the jury indicates a verdict only. The judgment of the Special Criminal Court was delivered on the 15th day of March, 2001. The Special Criminal Court is referred to hereafter as “the trial court.”
5.1 Indictment
The applicant was before the trial court on an indictment with 16 counts, being the murder of the journalist Veronica Guerin on the 26th day of June, 1996, and 15 other drug and arms related offences. The trial court found the applicant guilty of the drugs charges, not guilty of the charge of murder and not guilty of the firearms charges. As there is no appeal from the verdicts of not guilty, the only verdicts in issue on this appeal are those relating to the drugs charges. However, it was a significant factor in the submissions on behalf of the applicant that the trial court, having applied the law correctly on the murder and firearms charges, erred in its application of the law in relation to the drugs charges. Thus the entire of the judgment of the trial court is relevant to this appeal.
5.2 Murder
The trial court held that on the 26th day of June, 1996 Veronica Guerin was brutally murdered as she sat in her car waiting for the traffic lights to change at the junction of the Naas Road with Boot Road near Clondalkin, Dublin. A motorcycle, on which there was a rider and a pillion passenger, drew alongside the stationary car in which Veronica Guerin was sitting. The pillion passenger broke the window of the driver’s door and then fired a number of bullets at point blank range into the car. Veronica Guerin was struck by six bullets, as a result of which she suffered severe injuries and died almost instantaneously.
5.3 Murder Charge
The applicant was charged with Veronica Guerin’s murder and it was the State’s case that it was he who determined that she was to die, that he planned her death, and that the perpetrators of the crime were acting under his control when she died. The trial court followed the law stated in Ellis v O’Dea [1991] 1.I.R. 251 that when two or more persons are engaged in a joint venture constituting a criminal offence each is responsible for the acts of the other.
5.4 Three Witnesses
The trial court pointed out that three witnesses were called to give evidence on the indictment and that the guilt or innocence of the applicant would depend on whether or not the evidence of these three witnesses found favour with the court. These witnesses were John Dunne, Charles Bowden and Russell Warren. The trial court noted that each of the three witnesses was, on his evidence, an accomplice of the applicant, and the trial court recognised the danger of convicting on the uncorroborated evidence of an accomplice. The trial court pointed out that the reliability and credibility of the three witnesses was challenged by the applicant on a number of further grounds, including that: (a) each had pleaded guilty in court to a variety of offences, including drug related offences, committed in association with the applicant; (b) each was treated extremely leniently by the courts, presumably because of representations from the prosecution as to their assistance to the State; (c) each of the three men and their families were in a Witness Protection Programme as a consequence of which they were financially dependent on the State for their future and it was submitted each man had tailored his evidence to please the authorities so as to obtain a better future for themselves and their families. In addition, in relation to Charles Bowden and Russell Warren, counsel on behalf of the applicant had suggested that the two men had been granted immunity from prosecution for the murder of Veronica Guerin. It was submitted that this was a favour which was granted to them in consideration of their agreeing to give evidence favourable to the prosecution in this and other related trials.
5.5 "Water under the Bridge"
The court held that this was ‘water under the bridge’. It stated:
"In the view of the Court, insofar as it is suggested that the honesty of John Dunne, Charles Bowden and Russell Warren is open to question arising from the fact that after they had agreed to give evidence on behalf of the prosecution in this and related trials they were treated leniently by the courts and, indeed, probably face less serious charges than those which might have been preferred against them had they not agreed to give such evidence, that would all now appear to the Court to be 'water under the bridge' in the sense that the DPP cannot, as it were, turn back the clock and arrange to have these men's cases reopened before the courts with a view to having more severe penalties imposed upon them and neither at this remove can the DPP prefer more serious charges against them. Accordingly, it seems to the Court that what has been done cannot be undone and, therefore, that Messrs Dunne, Bowden and Warren have nothing to gain by giving perjured evidence on behalf of the prosecution and that begs the question 'why should they bother telling lies if there was no benefit from doing so?' In the view of the Court there is no good reason why they should do so. The same considerations would appear to apply to the immunity from prosecution for the offence of murder which has been granted to Charles Bowden and Russell Warren because, in the letter granting that immunity, it is expressly stated that the favour is 'unconditional and irrevocable'. Accordingly, no matter what evidence these two men gave at what ever trials they chose to give evidence on behalf of the prosecution, including this trial, they can never be prosecuted for the murder of Veronica Guerin and therefore, is there any sense or logic in their giving perjured evidence? The Court thinks not."
I shall return to this matter later in the judgment.
5.6 Credibility of John Dunne, Charles Bowden, Russell Warren as a consequence of their participation in the Witness Protection Programme.
The trial court considered the credibility of John Dunne, Charles Bowden and Russell Warren as a consequence of their participation in the Witness Protection Programme. This issue is at the core of the appeal to this Court. The trial court considered whether one or more of them could have been apprehensive that if they did not give evidence measuring up to the expectation of the authorities either they or their families would suffer by being less well protected or provided for. The trial court held:
"On the face of it, that would not appear to be an unreasonable fear and, therefore, there would appear to be some basis for doubting the honesty of the evidence given by one or more of these men. However, although the Court accepts that during the initial stages of the Witness Protection Programme, each of these three men was less than enchanted with the information which they were receiving about the realities of the programme, insofar as it was going to affect them and their families in the future and each of them was expressing reservations on that account, the Court is satisfied that eventually a situation of some trust developed between the men and those who were responsible for organising the Witness Protection Programme and it appears to the Court that each man is now more sanguine about his future and that of his family".
The trial court was also of the opinion that the capacity of the Garda Síochána to combat organised crime is increasingly dependent upon the cooperation of criminals, and the provision of a Witness Protection Programme. The trial court held:
"Accordingly, reneging on their obligations under the Witness Protection Programme does not appear to the Court to be either a real or a sensible option for the authorities and that is a fact which should be so obvious to the participants in the Programme and, indeed, to Messrs Dunne, Bowden and Warren, that there is no incentive to them to tell lies to the court". (underlining added)
The trial court referred to R v Hester [1973] AC 295, The People (Trimbole) v Governor of Mountjoy Prison [1985] IR 550, and the submissions on behalf of the applicant. The trial court accepted that the Witness Protection Programme did include several of the aspects raised and criticised by counsel for the applicant. It noted that this was the first occasion since the foundation of the State that a Witness Protection Programme had been put into place and found that it was essential for preserving the wellbeing of persons who have engaged in organised crime and yet are prepared to give evidence against their partners in crime. The trial court held that the authorities were entitled to operate such a programme and to do so confidentially. It stated that if there was public access to details of the programme the whole purpose of the programme would be defeated. It found also that the Director of Public Prosecutions had no obligation whatsoever to explain a grant of immunity from prosecution, stating it was not necessary in the interests of justice to do so.
The trial court expressed concern that Detective Garda James B Hanley, as he conceded in evidence, kept no record whatsoever of several meetings which he had with Charles Bowden and with Russell Warren. This is an important fact because, inter alia, of the submissions on behalf of the applicant that there was a variation between statements which had been induced by Detective Garda Hanley at these meetings.
The trial court held that there was no reasonable ground upon which the Garda Síochána could have believed that either Charles Bowden or Russell Warren had a legitimate claim to any part of the monies which had been seized by the Garda Síochána in the course of the investigations, and that these monies should not have been returned to the men. The trial court stated that it could not understand how the Garda authorities had concluded that any of the monies found when they searched Russell Warren's residence (and that of his parents) were not the proceeds of crime, but rather legitimate profits from his cleaning business, and held that there was no justification for that view.
While the trial court considered it was wrong to have returned the money to the witnesses it accepted the bona fides of the members of the Garda Síochána concerned with the decision to return the money. The trial court concluded:
"Having regard to the foregoing, the conclusion of the Court is that any perceived benefits to the witnesses John Dunne, Charles Bowden and Russell Warren from giving evidence on behalf of the prosecution at this trial is more imagined than it is real and, accordingly, the Court is not persuaded that any one of these men gave perjured evidence in consideration of these perceived benefits. Neither, indeed, was the Court persuaded that it should doubt the honesty of either one of these men merely arising from the fact that each of them was told in correspondence that it was unlikely that he would be required to serve his full sentence, for the simple reason that the Court was told that virtually any prisoner who sought early release was given that assurance."
However, the trial court did express concern that both Charles Bowden and Russell Warren made formal statements to the Garda Síochána in which the applicant is implicated after they had the unrecorded meetings with Detective Garda Hanley and after monies had been returned to them by the Garda Síochána. The trial court held:
"… it is the view of the Court that in those circumstances their evidence is compromised. It does not follow, however, that the Court views the evidence of those two men as being incapable of belief in any or every respect".
The trial court set out the test it planned to apply.
5.7 Trial court test regarding the evidence of Charles Bowden and Russell Warren
The trial court held:
"… given that the Court is of the view that Charles Bowden and Russell Warren are compromised witnesses, that each one of them is an accomplice and that his evidence must be viewed in that light and that, apart altogether from those considerations, their evidence was ridiculed by the defence, who invited the court to disregard it on grounds that it was so riddled with inconsistencies and contradictions and so lacking in corroboration that its credibility was fatally flawed - particularly as both men were exposed in the witness box as perjurers and self-serving liars, the Court acknowledges that it should have grave reservations about the truthfulness about any piece of evidence which either of those men gave in the witness box. The fact of the matter is that the Court has approached their evidence in that light. Nevertheless, however unreliable their evidence may have been, the Court cannot accept that there [is] no vestige of truth contained in the evidence given by either Charles Bowden or Russell Warren. In the view of the Court, there are certain aspects of the evidence of each one of them which was creditworthy and capable of belief and while the Court was not prepared to act on any piece of evidence given by either one of those two men which stood by itself, notwithstanding that the Court may have believed that piece of evidence to be true, in the event that the Court was satisfied that there was a significant corroboration for it, the court was prepared to act on it."
5.8 Trial court test regarding the evidence of John Dunne
As to the evidence of John Dunne the trial court held:
"… Mr. Dunne's honesty, apart from his purported identification of the [applicant], does not appear to have been seriously challenged by the defence. Moreover it does not appear to the Court that he is affected by the matters which, in the view of the Court, compromises the evidence of Charles Bowden and Russell Warren. Nevertheless he is an accomplice and while the court would be entitled to act on his evidence without some corroboration, in the circumstances that it recognises the dangers of so doing, it is not disposed to do so".
5.9 Criminal Process System
While the trial court took the view that aspects of the procedures followed by the Garda Síochána, especially in relation to Charles Bowden and Russell Warren, had compromised the evidence of these two witnesses, it rejected the submission of counsel for the applicant that the procedures were so inappropriate that they compromised the entire criminal process system. The trial court held that it was improper to interview Charles Bowden and Russell Warren without keeping a record, and that it was unfitting to return monies to them while they were still assisting the Garda Síochána with their enquiries, given that there was no legitimate basis for the return of the money. These shortcomings were regretted by the trial court. It held that the shortcomings compromised the evidence of Charles Bowden and Russell Warren, but:
“… the court is not persuaded that the entire criminal process system in the country is thereby threatened. The court accepts that it has a duty to protect its own processes and it is for that reason that the court is critical of the certain aspects of the manner in which Messrs Bowden and Warren were dealt with by the Garda authority. However, in the view of the Court, it is a leap too far to suggest that the irregularities to which the Court has referred threatened the entire criminal process system.”
These findings are central to the analysis of the issues arising on this appeal.
5.10 Unlawful Importation into the state of a controlled drug, cannabis resin, between the 1st of July, 1994 and the 16th of October 1996
The applicant was charged with offences of unlawful importation into the State of a controlled drug, cannabis resin, between the 1st of July, 1994, and the 16th of October, 1996. The trial court considered whether or not the prosecution had established that there was unlawful importation of cannabis resin into the country between the relevant dates. The trial court held that there was unchallenged evidence that between the months of April 1994 and October 1996 inclusive Teca Shipping Service was instrumental in shipping goods designated as ‘spare parts’ from Holland to Cork, which goods were contained in sealed cartons initially constructed of timber and latterly of cardboard, which were transported in containers. The witnesses whose evidence established this fact, Jennifer Fitzpatrick, John O’Sullivan, Vivienne O’Byrne, Dermot Murphy and Michael Cashman, never saw the contents of the cartons and had no reason to believe they were other than ‘spare parts’. Their evidence also established that the named consignees of the cartons were mostly ‘Alcan Casings Ltd’ or ‘McCarthy Commercials Ltd’, although no such companies existed. The trial court considered that the reality was that John Dunne, who was then operations manager of Seabridge Ltd, collected the cartons, or organised that they be collected by a representative from Seabridge Ltd. The trial court was satisfied beyond any doubt that during the period April 1994 to October 1996 inclusive John Dunne, under the umbrella of Seabridge Ltd, was responsible for the importation into the State of over a hundred consignments purporting to be ‘spare parts’, a total weight of which, including the weight of the cartons in which they were transported, was approximately 20,000 kilos. The trial court found that John Dunne identified box types, labels, and the bindings of boxes, which were found by the Garda Síochána at a lock up garage at Emmet Road, Inchicore, and at Unit 1B at the Greenmount Industrial Estate, Harolds Cross, Dublin, as being similar in kind to the box types, labels, and binding used in the consignments of cartons. Further that John Dunne gave evidence that initially when these consignments of cartons carried by Teca Shipping Services arrived in Cork they were either collected by him or by someone on his behalf who would bring them to him and he would then transport them to the Ambassador Hotel, Naas, where he would hand them over to two men, one of whom was called Joe but subsequently identified by John Dunne as Brian Meehan, the second man was never identified by name by John Dunne.
5.11 Dermot Cambridge
The trial court found that Dermot Cambridge gave significant evidence, and I agree. John Dunne gave evidence that when he was on holidays the services of Dermot Cambridge (an independent courier operating in Cork City), were engaged to transport the consignments of cartons from the Cork docks to the Ambassador Hotel in Naas. Dermot Cambridge corroborated this fact. Dermot Cambridge gave evidence that when he arrived at the Ambassador Hotel, Naas, with the consignment of cartons, he handed them over to two men one of whom he identified as a man called Charles Bowden and another whom he identified as Shay Ward. The trial court regarded four other pieces of evidence of Dermot Cambridge as significant: (i) He said that on each occasion when he delivered the consignment of cartons to the Ambassador Hotel in Naas he was given a closed envelope for John Dunne. John Dunne had said he was paid £1,000 for each consignment. (ii) He said that Charles Bowden drove a blue Opel Kadett van into which the consignments of cartons was generally put but that on occasions the consignments were so large that they could not all fit in the van. On those occasions Charles Bowden would take Dermot Cambridge’s van and return sometime later without the load. Charles Bowden gave similar evidence. (iii) Dermot Cambridge gave evidence that initially when he brought consignments to the Ambassador Hotel in Naas they were in wooden boxes but that latterly they changed to cardboard boxes. (iv) Dermot Cambridge also stated that at the request of John Dunne he used to pick up boxes at the Kent railway station in Cork which were addressed to Seabridge Ltd and he would bring them to John Dunne.
5.12 John Dunne’s evidence as to the applicant’s role in the importation of cartons of cannabis.
The trial court found that the most significant aspect of John Dunne’s evidence was his evidence that it was the applicant who had requested him to make appropriate arrangements for the importation of the consignments of cartons of cannabis resin into the state. The trial court had no doubt whatsoever that John Dunne was responsible for the importation of these consignments of cartons into the state and that he disposed of them either by himself bringing them to the Ambassador Hotel in Naas or by arranging for Dermot Cambridge to do so. His evidence was corroborated in virtually every respect by the combined evidence of Messrs O’Sullivan, O’Byrne, Murphy, Cashman and Cambridge.
John Dunne gave critical evidence that he arranged the importation of the consignments at the applicant’s request. There was no corroboration of this aspect of his evidence. This evidence was challenged on the grounds that if such a request was made of John Dunne, which was not admitted, it was not made by the applicant but by another person. The trial court held:
“In that regard, Mr. Dunne gave evidence that he met the man who made those requests of him and who he identified as the accused face to face on six or seven occasions, one of which lasted upwards of 20 minutes. Accordingly, it seems to the court that if Mr. Dunne is considered to be a credible witness, then his identification of Mr. Gilligan is beyond doubt. In the view of the court, given that there is independent evidence which supports the evidence of Mr. Dunne to a considerable degree, there is every reason to believe that Mr. Dunne is, indeed, a credible witness and that, therefore there is no good reason to doubt the accuracy of his identification of the [applicant].”
5.13 Recognition not Dock Identification
The trial court held that the evidence of John Dunne was of recognition of the applicant, that it was not a dock identification. In arriving at this conclusion the trial court held.
“… the court considered Mr. Dunne’s identification not so much as a dock identification but more as a recognition of someone he had known previously. In that regard the Court has taken into account firstly, that when asked to describe the man who requested him to arrange for the importation of the said consignments, Mr. Dunne said that he was a ‘small, low sized, stocky man with basically black hair who was then 40/45 years of age’. While Mr. Gilligan is small man, stocky man, and might easily have been considered to have been about 40-45 years of age when Mr. Dunne says that he just met him some 6 years ago, he certainly does not now have black hair. However, from photographs which the Court has seen during the course of the trial, it is clear that at one stage of his life the [applicant] had black hair and, accordingly, the Court is satisfied that it could well be that some six years ago his hair could reasonably have been described as ‘basically black’. Secondly, the Court has taken into account the fact that if the [applicant] is convicted of the several offences of unlawful importation of controlled drugs with which he is charged, then John Dunne would be an accomplice of his and, accordingly, the Court has scrutinized Mr. Dunne’s evidence with that in mind but, yet, accepts his identification of the [applicant].”
5.14 Boxes
The evidence as to the boxes, given to the trial court, was of critical importance. The evidence was that members of the Garda Síochána found boxes at a lock up garage at Emmet Road, Inchicore and at Unit 1B at the Greenmount Industrial Estate, Harold’s Cross. There was unchallenged evidence from Derek Behan that he looked after a lock up garage at the rear of No. 90 Emmet Road, Inchicore. He said that in the month of October 1994 that lock up was rented to a man who gave his name as Andrew Bowden. During the time that the man named Andrew Bowden occupied the lock up he (Derek Behan) had visited the premises and saw wooden boxes (which were lined with polystyrene and spray foam) stacked up to the ceiling. He agreed that there were quite a number of the boxes and packaging left behind when the man named Andrew Bowden left and he, Derek Behan, had pointed out the boxes to the Gardaí. He gave evidence that the man who called himself Andrew Bowden was the same person as the man shown in photograph No.8 in exhibit 76, who is Charles Bowden. Derek Behan’s evidence was not challenged and the trial court did not doubt it.
Nor did the trial court doubt the evidence of Lucy Devine and Paul Byrne who said that in the month of December 1994 Unit 3E of the Kylemore Industrial Estate was rented to a man who gave his name as Paul Conroy. Both witnesses described this man, a description which satisfied the trial court that the man was Charles Bowden. Paul Byrne could not say when the man who called himself Paul Conroy left, as he left without warning. Paul Byrne had to break into the premises which he found empty except for some empty boxes which had styrofoam packaging, which he cleared out.
The trial court also heard evidence from Thomas Harrington, who owned Unit 1B of the Greenmount Industrial Estate, that on the 10th of November, 1995 he leased that unit to a man who gave his name as Paul Conroy, who paid a deposit of £500 and agreed a rent of £500 per month and who gave Thomas Harrington £1000 in cash on the 11th of November, 1995. Thomas Harrington identified the man who called himself Paul Conroy as being Charles Bowden, on being shown an album of photographs.
5.15 Cannabis Resin on premises at Greenmount Industrial Estate
On the 6th day of October, 1996, Inspector Jeremiah O’Connell of the Garda Síochána obtained a search warrant for premises at the Greenmount Industrial Estate. On searching the premises boxes or cartons, both constructed of timber and cardboard, one of which cardboard boxes was lined with foam and contained 9 ounce bars of cannabis resin, were found. Detective Sergeant Patrick Ennis, a forensic ballistic expert, gave evidence that there was quite an amount of boxes and packaging, 26 boxes, each box had an inside compartment surrounded by polystyrene sheeting and compressed aerosol foam. He calculated that each box could hold approximately 150 slabs of cannabis resin, each weighing approximately 250 grams, therefore 26 cardboard boxes could accommodate a total of approximately 975 kg.
Dr. Daniel O’Driscoll, a forensic scientist, examined the 26 boxes found in Greenmount and gave evidence that he found debris in 25 of the cardboard boxes and that the debris of 22 of the 25 boxes contained trace amounts of cannabis resin. There were also some bags found on the premises which contained bars of cannabis resin.
Detective Sergeant Ennis also gave evidence of finding on the premises two camouflaged pouches designed to hold a machine pistol and a silencer and he said that these pouches were similar to pouches found in a Jewish cemetery on the Old Court Road.
5.16 Cannabis Resin at a lock up garage at Emmet Road
On 19th day of March, 1997 Inspector Jeremiah O’Connell obtained a search warrant for the lock up garage at Emmet Road, where a number of broken cardboard boxes were found with foam attached to the inside and which were identified to the Garda Síochána by Derek Behan as the boxes described by him.
5.17 Significant Evidence
The trial court held that the significance of the evidence was that Charles Bowden, who was identified as the lessee of the lock up garage at Emmet Road, Unit 3B at the Kylemore Industrial Estate, and Unit 1B at the Greenmount Industrial Estate, successively from the month of October 1994, gave evidence that both the cardboard and wooden boxes which were found on these premises by the Garda Síochána and described by Paul Byrne, had been included in consignments which he had collected at the Ambassador Hotel, Naas, from either John Dunne or Dermot Cambridge. Charles Bowden gave evidence that all of the boxes had contained quantities of cannabis resin and that on occasion there were quantities of cocaine and weapons and ammunition, and pouches for weapons. Charles Bowden gave evidence that after he collected these consignments from the Ambassador Hotel it was his responsibility to open the boxes, to section orders for drugs which had been given to him by the man named Brian Meehan, and that he would then deliver the drugs. When the consignments contained weapons he stated that it was his responsibility to have them cleaned and oiled, and having done so he had them hidden in a grave in the Jewish graveyard at Old Court Road.
The trial court addressed the challenge to this evidence and held:
“In this regard, virtually every aspect of Mr. Bowden’s evidence was challenged by the defence on the grounds that he was an inveterate liar who was incapable of speaking the truth. However, given that there was independent evidence that it was Mr. Bowden who had leased the said premises at the Emmet Road, at the Kylemore Industrial Estate and at the Greenmount Industrial Estate, that the boxes found in those units by the Garda Síochána were identified by Mr. Michael Cashman, by Dermot Cambridge and by Mr. John Dunne as similar to those included in the consignments of what were described as spare parts imported into the country by Teca Shipping Services, that Mr. Dermot Cambridge identified Mr. Bowden as one of the persons to whom he delivered those consignments at the Ambassador Hotel, Naas and that quantities of cannabis resin were found in at least one of the boxes and debris of cannabis resin in 22 of the boxes when the Garda Síochána raided the Greenmount Industrial Estate on the 26th of October 1996, the Court is satisfied that the evidence of Charles Bowden insofar as he asserts that when he opened those cartons having collected them from the Ambassador Hotel in Naas, they contained quantities of drugs, was truthful. Moreover, given that on the 8th of October, 1997 Mr. Bowden pleaded guilty in the Circuit Court to offences of possession of cannabis resin for the purpose of sale, the Court has little doubt Mr. Bowden’s description of what he did with the drugs when he opened the boxes was also true.”
In view of this evidence the trial court concluded that a link was established, between the request which the applicant made of John Dunne to arrange for the importation of consignments of cartons into the country and the cannabis resin found in the cartons. The trial court held that it was satisfied beyond reasonable doubt that the consignments of cartons, which, at the request of the applicant, John Dunne arranged to have imported into the country, contained cannabis resin. The trial court held also that it was satisfied that the applicant agreed to and did pay John Dunne £1000 in respect of the importation of each of the consignments. The trial court had no doubt that the applicant was aware that these consignments contained quantities of cannabis resin.
5.18 John Dunne’s Evidence Analysed
In arriving at the above conclusions the trial court analysed the evidence of John Dunne carefully and considered several factors critical, being John Dunne’s concession that he believed he was importing contraband, his plea of guilty, and persuasive evidence of John Dunne’s guilty knowledge. The trial court did consider the defence’s case that the cartons contained tobacco, but in light of the forensic evidence rejected it and held that it had no difficulty in concluding beyond any doubt that the cartons did not contain tobacco. The trial court held that it was:
“Satisfied that the accused, John Gilligan, was the prime mover in the importation of cannabis resin into this country through the medium of Teca Shipping Services from early in the year 1994 until the Garda Síochána raided Unit 1B at Greenmount Industrial Estate on 6th of October, 1996”.
5.19 Charles Bowden’s Evidence Analysed
The trial court gave a clear and express analysis of its view of the evidence of Charles Bowden. While the trial court accepted some of his evidence it did not accept that he was truthful in other aspects. It stated that it was influenced by the evidence of Charles Bowden to the extent indicated, but:
“It does not follow that the Court was satisfied that insofar as other aspects of his evidence was concerned, Charles Bowden was a truthful witness. In that regard, it is the view of the Court that under cross-examination he was exposed as a self-serving liar in a variety of different ways… so much so that the Court was compelled to conclude that in the interests of Justice it would be unsafe to rely on any evidence which Charles Bowden gave unless it was supported by circumstantial evidence or by independent testimony.”
The trial court pointed out that the case against the applicant in relation to the drugs charges was dependent on the evidence of Charles Bowden. Charles Bowden’s evidence was that after he had collected cartons containing quantities of cannabis resin at the Ambassador Hotel in Naas he would bring them to whichever lock up he was then using as a base for the distribution of the drugs. The trial court accepted that when Charles Bowden opened the cartons he found quantities of drugs. The trial court, referring to the independent evidence that Charles Bowden leased three lock up premises (the garage at Emmet Street, the Units at Kylemore Industrial Estate and the Greenmount Industrial Estate), accepted that Charles Bowden used those premises for his drug trafficking.
5.20 “A Gang”
The trial court accepted Charles Bowden’s evidence, and independent evidence, that Charles Bowden, Paul Ward, Brian Meehan, Shay Ward, Peter Mitchell and the applicant were all well known to each other and were accustomed to fraternise with each other. The Court referred to specific evidence including: (i) the evidence of Garda Moran that on the 1st of October 1996 he saw Charles Bowden, Shay Ward, Peter Mitchell and Brian Meehan having lunch together at a restaurant and that afterwards Charles Bowden and Shay Ward went into a shop next door where they purchased a red yard brush and rolls of black refuse sacks; (ii) the video evidence of the wedding in St Lucia which the applicant, Brian Meehan, Paul Ward and Peter Mitchell attended; (iii) in August 1994 the Garda Síochána stopped a car driven by Brian Meehan in which Peter Mitchell was a passenger and in which the Garda Síochána found a sum in excess of £46,000 which the applicant subsequently claimed belonged to him (which he had given to his "trusted" friend Brian Meehan) and which sum was returned to the applicant by the District Court; (iv) in May 1995 the Garda Síochána found Peter Mitchell and Brian Meehan in the possession of high powered motorcycles at the rear of Paul Ward's residence; (v) in October 1996 the Garda Síochána found Brian Meehan in a car driven by Paul Ward, and Dermot Cambridge gave evidence that he met Charles Bowden in the company of Shay Ward; (vi) an abundance of evidence of telephone calls passing between the mobile phones belonging to or under the control of Charles Bowden, Brian Meehan and the applicant.
The trial court accepted that there was no direct evidence as to who was making the calls but held that their -
"multiplicity was such that in the view of the court it would defy the laws of logic and coincidence were it a fact that the majority of those calls had not been exchanged by the actual owners of those mobile phones or the persons who, according to the evidence, habitually had control of them".
In light of the evidence the trial court concluded that the association of Charles Bowden, Paul Ward, Brian Meehan, Shay Ward, Peter Mitchell and the applicant was such that it was reasonable for the prosecution to refer to them as "a gang".
The trial court was satisfied that it was a gang, the principal activity of which was drug trafficking. The trial court pointed out that Charles Bowden had said so, but it sought further evidence because of reservations as to his truthfulness. As a result of independent evidence of the association of these men, and independent evidence linking the men with drug trafficking (largely as a result of the raid of Unit 1B of the Greenmount Industrial Estate and the drugs, weighing and cutting equipment, and lists of initials with weights after their names, found) the trial court was satisfied that it confirmed Charles Bowden's evidence. It was noted that Brian Meehan's fingerprints were found on some of the lists and that a similar list was found by the Garda Síochána when they searched Brian Meehan's house in September, 1996. The trial court also referred to the brush found at the Greenmount Unit which was similar to the brush purchased by Charles Bowden and Shay Ward at the shop beside the restaurant on the 1st October, 1996; to a slip of paper found on Paul Ward when he was stopped and searched by the Garda Síochána in October, 1996 which slip of paper had entries very similar to the list found at the unit; and the trial court referred to the evidence of Russell Warren which it found, considered in context, together with other information, enabled the court to conclude that the applicant directly or vicariously engaged in the sale and supply of cannabis resin. The trial court was satisfied that the applicant was the prime mover in the importation of cannabis resin into the country. The trial court held that it was reasonable to infer from the evidence (and not relying on hearsay) that the applicant was the largest beneficiary of the drugs trafficking. While the trial court held that this would suggest that he was the supreme authority amongst the gang, the trial court held that the evidence fell short of establishing that the applicant played an active role in the day to day activities of the gang.
5.21 Evidence of Russell Warren
The trial court held that Russell Warren was a self-confessed perjurer. Further, that he did not care who he hurt if by doing so there was some benefit to himself. The trial court found him to be evasive in his answering, and that his evidence was riddled with inconsistencies and contradictions not only in this trial but when compared to the evidence he gave at the trial of Brian Meehan in June, 1999. Further the trial court pointed out that if the applicant was convicted of the drug trafficking offences before the court, Russell Warren would be an accomplice of his.
The trial court held:
"In all these circumstances it has to be stated that the court viewed Mr Russell Warren's evidence with scepticism. Indeed, it was not disposed to act on any evidence which he gave unless it was strongly supported by independent testimony or circumstantial evidence."
The trial court noted respects in which Russell Warren's evidence was corroborated: (i) the letter from the applicant to him while Russell Warren was in prison in Arbour Hill; (ii) in the letters in addition to writing on his own behalf the applicant purported to write on behalf of Brian Meehan and Paul Ward, which was also indicative of the group, of the gang; (iii) the many records of telephone calls passing between the mobile phones used by Russell Warren and the applicant; (iv) the video evidence of the applicant strolling down Main Street in Lucan in the company of Russell Warren. In the view of the trial court those factors provided eloquent evidence of the close association between the applicant and Russell Warren. The court considered what could be the basis for the relationship – family, social or legitimate-business. While accepting that the applicant had no obligation to explain, it was the view of the trial court that in the absence of an explanation for the association, the court was entitled to look to other evidence for elucidation as to why the applicant and Russell Warren were associates.
The trial court concluded:
"In the light of Russell Warren's proven association with John Gilligan, his account of the reasons for that association and his account of the source of the money found by the Garda Síochána on the 30th September, 1996, and in the absence of any other evidence either to account for that money or otherwise account for the association between Mr. Warren and Mr. Gilligan, the court is quite satisfied to accept Mr Warren's evidence in that regard, notwithstanding its view that, generally speaking, Mr Warren is a person in respect of whose evidence little reliance can usually be placed."
5.22 Firearms Charges
The applicant was also charged with possession or control of firearms and ammunition with intent to endanger life, and the possession and control of firearms and ammunition with the intent to enable another person by means thereof to endanger life. Charles Bowden gave evidence that on a number of occasions the cartons contained, in addition to cannabis resin, quantities of weapons and ammunition. He said they were secreted in a grave belonging to a lady named Miriam Norcot in the Jewish cemetery at Old Court Road. On being informed of this by Charles Bowden, members of the Garda Síochána visited the said grave and found a quantity of weapons and ammunition. The trial court found that Charles Bowden told the applicant that "there is something in the boxes" but did not specify what. The trial court held that the only evidence of the guns and ammunition was given by Charles Bowden. The prosecution sought to argue that corroboration could be obtained in the fact that some of the cartons were heavier than others. However, the trial court held that there could be many reasons for some cartons being heavier than others, including the fact that they had more cannabis resin. It was also argued by the prosecution that corroboration could be accepted in the fact that when the Garda Síochána searched the Greenmount Industrial Estate premises on the 6th and 7th October, they found a camouflage pouch for a pistol and a camouflage pouch for a silencer which were similar to the two pouches found in the grave at the Jewish cemetery. But the trial court held:
"However, the court has a problem with the evidence of certain members of the Garda Síochána with regard to the findings of the said pouches at the Greenmount Industrial Estate"
Reference was made to evidence that the Garda Síochána said that there was a detailed search of the premises on the 6th, yet the pouches were not discovered until the 7th, nor did two named members of the Garda Síochána note the finding of the pouches in their Garda notebooks, nor was either pouch photographed in situ although the vast majority of items considered to be significant were so photographed. Indeed the photograph of a box in which the two pouches were allegedly found was not included in the original album of photographs of the contents of Unit 1B at the Greenmount Industrial Estate and it was only produced after Detective Sergeant Ennis had commenced his evidence, and then because Detective Sergeant Ennis said a colleague had requested him to refer to it. The trial court referred to other features which it found curious, including the apparent loss of a cellophane wrapping originally on the gun identified and which may have been used for containing cannabis resin, the lack of an explanation for its absence, the fact that Charles Bowden gave evidence of spilling oil on the pouch and yet no oil was on the pouch produced in court, and the absence of evidence as to the pouches in statements. Thus, on these charges, the trial court held:
"In all those circumstances, while it may well be that those two pouches were found by the Garda Síochána during the course of searching Unit 1B at the Greenmount Industrial Estate, the Court cannot but have a doubt in that regard. Accordingly, as the accused is, at law, entitled to the benefit of every doubt, the Court is not persuaded that there is any evidence which is corroborative of the evidence of Charles Bowden with regard to the source of the guns and ammunition that was found in the Jewish Cemetery at the Old Court Road. That being so and given that Mr Bowden is an accomplice of the accused and that, in any event, his evidence is suspect for the reasons detailed above, the Court is not satisfied that the prosecution has established a case beyond all reasonable doubt against the accused in respect of the several offences of possession of arms and ammunition which have been preferred against him."
While there is, and can be, no appeal against this finding of the trial court, counsel on behalf of the applicant compared this analysis by the trial court to that on the drug trafficking charges and submitted that while this analysis was correct the trial court's analysis on the drug trafficking offences was in error.
5.23 Approach to Murder Charge
The trial court considered the evidence which the prosecution submitted established the complicity of the applicant in the murder of Veronica Guerin. The trial court was persuaded beyond any doubt, by the evidence of Felix McEnroe S.C., that, on the 5th September, 1995 in the course of a telephone call to her which Felix McEnroe S.C. overheard, the applicant threatened Veronica Guerin that if she wrote about him he would kidnap her son and sexually abuse him and shoot her. The applicant's words to Veronica Guerin included: "I will fucking kill you." The trial court had no doubt that the applicant used those words. The trial court also accepted the evidence of Elizabeth Allen that in an interview with the applicant on the 1st day of July 1996 he admitted that he had threatened Veronica Guerin and members of her family, and that he said that he was angry and that he did not mean them, and that he said that he had nothing to do with the death of Veronica Guerin.
While the trial court accepted that on the 25th June 1996, the day before Veronica Guerin’s murder, Detective Sergeant Keane and Detective Sergeant Dominic Hayes met the applicant outside Kilcock District Court and had a conversation with him, the trial court did not accept the evidence of the two gardai as to the contents of the conversation as neither member of the Garda Síochána made a contemporaneous note of the conversation, neither recorded it in writing for some time afterwards, and Sergeant Keane’s statement of evidence with regard to that conversation was not included in the book of evidence served on the applicant.
However, the trial court noted the threats implicit in the letters written by the applicant to Russell Warren while Russell Warren was a prisoner in Arbour Hill. The trial court also noted that before her death Veronica Guerin had made a complaint to the Garda Síochána as a result of which a prosecution for assault was commenced against the applicant, which prosecution could not proceed because of her murder. As to this the trial court stated:
“The suggested implications of that fact insofar as the allegation of murder against the [applicant] is concerned are noted by the court.”
The trial court considered the evidence and stated:
“While evidence that the late Veronica Guerin’s life was threatened by the [applicant] and evidence that the [applicant] had also threatened a man, Russell Warren, whom he perceived as someone who was a threat to him and evidence that the [applicant] was prosecuted by Veronica Guerin, who was subsequently murdered, all give rise to the suspicion that the [applicant] had some hand, act or part in the murder, it is the view of the Court that that evidence amounts to no more than suspicion and suspicion is not a ground upon which a man may be convicted of any criminal offence, much less murder.”
The trial court noted evidence which it considered could equally point a finger of suspicion of complicity in the death of Veronica Guerin at John Traynor. The trial court referred to evidence of Charles Bowden which, it was suggested, would implicate the applicant in the murder, but did not accept it to prove that fact. The evidence of Charles Bowden was that at the request of Brian Meehan he loaded the gun which apparently was the gun used to murder Veronica Guerin and that he did so in the presence of Brian Meehan, Shay Ward and Peter Mitchell, each of whom were associates of the applicant. The trial court refused to infer from the facts that the applicant was a party to this crime of murder. It was the view of the trial court that that would be “guilt by association”, a concept not recognised in our jurisprudence.
The trial court was satisfied that the only evidence upon which the applicant could be convicted of the murder of Veronica Guerin was the evidence of Russell Warren. Of his evidence the trial court held:
“However, as it has been established to the satisfaction of the court not only that Russell Warren is an accomplice of the [applicant] so that his evidence must be viewed in that light, but also that his evidence is so suspect for a variety of other reasons that the interests of justice demands that it ought not to be relied upon except insofar as it is corroborated by persuasive independent evidence.”
Russell Warren gave evidence that he stole a motor cycle and told the applicant, who said he might need it. At the applicant’s request Russell Warren kept the motor cycle. Furthermore the applicant arranged to have it test driven by Brian Meehan and after that, at the request of the applicant, Russell Warren made it road worthy. The trial court found that Russell Warren described the events which occurred on the day of Veronica Guerin’s murder as follows. At the request of the applicant and Brian Meehan, he went to Naas to look out for Veronica Guerin’s car, which he had been told would be near the courthouse, so that he could tell the applicant and Brian Meehan of the direction it travelled after it left the courthouse. Russell Warren said that throughout the morning he had regular telephone contact with the applicant and Brian Meehan. He said that he spotted the car, and told the applicant and Brian Meehan that it was travelling in the direction of Dublin, that at Brian Meehan’s request he pursued the car, and called the applicant and Brian Meehan regularly to tell them where the car was. He said that at the traffic lights at the junction of Naas Road and Boot Road he saw the pillion passenger on the motorcycle being driven by Brian Meehan shoot the occupant of that car several times. Minutes after the event he said that he telephoned the applicant to advise him of what had happened. He gave evidence that the applicant asked, inter alia, “Did they get away?”. When Russell Warren told him they had, the applicant had retorted “Are they dead?” Russell Warren said he replied “Well, they shot somebody five times. What’s going to happen?”. Russell Warren gave evidence that the applicant said “The same thing will happen to you and your mate if you say anything about it. I will contact you later.”. All of this was strongly challenged on behalf of the applicant, on the grounds that it was a tissue of lies.
A few weeks after the murder of Veronica Guerin Russell Warren made a statement of his movements at the time of Veronica Guerin’s murder and supplemented that statement from time to time. The trial court noted that it was not until a year after Veronica Guerin’s death that he told the Garda Síochána for the first time that he had witnessed the murder, and in no statement did he suggest that it was the applicant who requested him to go to Naas. Further, the trial court pointed out that the admission was made at about the time Russell Warren received a payment of money from Garda Hanley. The trial court held that there was no corroboration of Russell Warren’s evidence of the complicity of the applicant in the death of Veronica Guerin. The trial court pointed out that a number of witnesses had given evidence which it said would appear to cast doubt on what Russell Warren said. The trial court referred to a number of inconsistencies. In light of the inconsistencies, and the fact that Russell Warren gave no indication that he had witnessed the murder until nearly a year after the event, the trial court was concerned that, notwithstanding his evidence, Russell Warren had not been present and had not witnessed the murder of Veronica Guerin.
However, the trial court had heard other relevant evidence which it considered, including evidence of records of telephone calls. The trial court referred to the fact that Veronica Guerin died at 12.54 pm on the 26th of June 1996 and that the trial court had evidence, which it did not doubt, that at 12.57 pm on that date (i.e. three minutes after Veronica Guerin’s death) a telephone call was made from a mobile phone habitually used by Russell Warren to a mobile phone habitually used by the applicant. The trial court stated that the evidence of that call would appear to afford some confirmation of the evidence of Russell Warren that immediately after witnessing the death of Veronica Guerin he had telephoned the applicant. The trial court pointed out that such evidence did not corroborate the contents of the alleged conversation. However, it would suggest that despite the inconsistencies in Russell Warren’s account of the killing, that he was at the scene at the material time. However, the trial court held that the fact of the telephone call did not establish that the applicant had any hand, act or part in the killing, and that if the applicant was to be considered guilty the trial court would have to be convinced of the truth of Russell Warren’s description of the events which preceded the killing, and it was not so convinced. The trial court stated that Russell Warren’s evidence was evasive and inconsistent, that he contradicted himself, and he had contradicted evidence which he had given previously at the trial of Brian Meehan. The trial court analysed the evidence as to telephone calls and was not convinced that the records of the telephone calls were sufficiently corroborative of Russell Warren’s evidence. As there was no evidence to corroborate Russell Warren’s evidence of what had occurred on the days prior to and on the day of the murder of Veronica Guerin, the trial court held that it could not but have a doubt about all of these matters. The trial court stated that it had grave suspicions that the applicant was complicit in the murder of Veronica Guerin but that it had not been persuaded beyond all reasonable doubt by the evidence adduced by the prosecution, accordingly the verdict was not guilty.
5.24 Verdict of Trial Court
The trial court found the applicant guilty of the drugs charges, not guilty of the murder charge and not guilty of the firearms charges. As there is no appeal from the verdicts of not guilty the only verdicts in issue on appeal (before the Court of Criminal Appeal and this Court) are those relating to the drugs charges. However, it was a factor in the applicant’s submissions that the trial court, having applied the law correctly on the charges of murder and firearms, erred in its application of the law to the drugs charges. Thus while the charges of murder and firearms are not in issue on the appeal, the findings of the trial court are relevant as it was part of the submissions on behalf of the applicant that the trial court had applied the law correctly in relation to the murder and firearms charges but that it had erred in its application of the law in relation to the drugs charges.
6. Court of Criminal Appeal
The applicant, having been refused leave to appeal by the trial court, sought leave to appeal against his conviction (and sentence) from the Court of Criminal Appeal. The request for leave to appeal related to the applicant’s conviction by the Special Criminal Appeal on the 15th March 2001 on charges of unlawful importation of a controlled drug contrary to s.21(2) and s.27 of the Misuse of Drugs Act 1977 as amended by s.6 of the Misuse of Drugs Act 1984 (counts 2, 3, 4, 5 and 6 on bail number SP21/98) and possession of a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s.5 of the Misuse of Drugs Act 1977 and contrary to s.15 and s.27 of the Misuse of Drugs Act 1977 as amended by s.6 of the Misuse of Drugs Act 1984 (counts 7, 8, 9, 10, 11 and 12 on the said Bill). The Court of Criminal Appeal granted leave to argue the application for leave to appeal on the basis of amended grounds of appeal. It heard the application on the 2nd, 3rd, 4th, 8th, 9th and 10th day of July 2003, and, in a reserved judgment delivered on the 8th day of August 2003, refused the application for leave to appeal against conviction. Thereafter the Court of Criminal Appeal certified that its decision of the 8th day of August 2003 involves points of law of exceptional public importance and that it was desirable in the public interest that an appeal be taken to this Court on the two questions certified and set out at the commencement of this judgment.
7. Appeal to Supreme Court
Two questions were certified by the Court of Criminal Appeal enabling an appeal to be taken to the Supreme Court. Consistent with the Court’s jurisprudence, the applicant, as already mentioned, lodged a full set of grounds of appeal. These grounds are identical to the grounds argued before the Court of Criminal Appeal and this Court was referred to the detailed written submissions filed before the Court of Criminal Appeal. As to these general grounds of appeal, it was submitted by counsel for the applicant that particular stress be laid on the extradition issue, the question of the identification of the applicant, the warning issue, and the submission that the testimony of John Dunne was not confirmed or corroborated.
8. State Witness Protection Programme
The first certified question concerns the circumstances and extent to which evidence obtained from witnesses in a State Witness Protection Programme may be inadmissible and/or inconsistent with trial in due process of law as guaranteed by Article 38.1 of the Constitution. This is a novel issue as, prior to the events the subject of this (and related) trials, there has been no case law in Ireland regarding evidence of witnesses in a State Witness Protection Programme.
Counsel on behalf of the applicant drew the Court’s attention to the dangers of relying on evidence from witnesses in a Witness Protection Programme and referred to a number of reports such as the Gifford Report (NI); the Cobden Trust, 1984; the Report of the Kaufman Commission on Proceedings involving Guy Paul Morin (Canada); the Report of the Sophonow Inquiry (Canada); the Report of the Ryan Commission on Capital Punishment (US, April 15 2002) and submitted that the underlying factor in each of the reports was that they were commissioned as a result of a miscarriage of justice and it was submitted that each report recommends that the use of compromised witnesses be completely abandoned or substantially altered. Thus, the primary issue on the appeal is whether the use of evidence of witnesses in a Witness Protection Programme should be allowed, or, if it is admissible, the terms for its use.
On behalf of the applicant it was submitted that the Witness Protection Programme lacked accountability and transparency for a number of reasons. These included: (i) The evidence of John Dunne, Russell Warren and Charles Bowden was vital to the prosecution of a number of persons, yet this was not addressed. (ii) The witnesses received benefits from the authorities by way of monies purportedly belonging to them but which may have been the proceeds of crime. (iii) Immunity from prosecution was granted to witnesses and there was no explanation given. (iv) Some of the witnesses were never charged with a variety of serious offences where there was evidence against them and no explanation was given. (v) The witnesses were interviewed by members of the Garda Síochána with no record being kept of the content of the interview. (vi) The witnesses received concessions, such as temporary release. (vii) It was submitted to the Special Criminal Court that the witnesses, especially Russell Warren and Charles Bowden, had a perception, despite contrary indications in correspondence, that they would never be considered for early release unless and until they gave evidence on behalf of the prosecution. (viii) Generally, it was submitted that the witnesses believed their situation to be performance related, that they were to give evidence to secure a conviction of the applicant. (ix) It was submitted that the effect of the Witness Protection Programme was such as to create a perception in the minds of the witnesses John Dunne, Charles Bowden and Russell Warren (and especially Russell Warren and Charles Bowden) which affected their capacity to give unprejudiced evidence. Arising from these submissions and others it was submitted that the evidence should be rejected entirely.
On behalf of the Director of Public Prosecutions it was submitted that the circumstances in which evidence which may have been obtained from witnesses under a State Witness Protection Programme is admissible are the same circumstances in which any other type of evidence may be inadmissible, that there are not two codes of evidence – one for witnesses in a Witness Protection Programme and one for other witnesses. It was submitted that if the probative value of the evidence outweighs its prejudicial value and no other exclusionary rule applies, then the evidence should be admitted so that the trier of fact may determine what weight to attach to it. It was submitted that such evidence is not inconsistent with trial in due course of law.
8.1 Role of the Court
It is the duty of the Court to protect constitutional rights, including the right of due process, of fair trial. It is a duty which applies in all cases, in routine criminal cases and in major trials where the prosecution is presenting a case of gangland violence, drug trafficking, murder, the obtaining of large sums of money, and associated offences.
A decision to establish a Witness Protection Programme may be taken by the Executive and/or the Legislative organs of State. However, it is the duty of the Judicial branch of government to protect the constitutional right of fair trial, the right to due process. In carrying out this duty the court may have to balance competing rights, to consider the rights of different persons and groups of persons and of the community. It is necessary to analyse the situation to see if there has been an unfair process, or a breach of the constitutional rights of any person.
8.2 Constitutional Root
The constitutional root of the applicant’s case, and of the issues before the Court, is Article 38.1 of the Constitution of Ireland which provides:
“No person shall be tried on any criminal charge save in due course of law.”
The applicant is entitled to a trial in due course of law. He has a right to a fair trial. The constitutional requirement is that there be fundamental fairness, that essential standards be observed. This approach is well established in our law. In People (DPP) v Breathnach [1981] 2 Frewen 43 the issue was the status of a statement, but the underlying principle is addressed:
“Because our system of law is accusatorial and not inquisitorial, and because (as has been stated in a number of decisions of this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the Judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded if, by reason of the manner or of the circumstances in which it was obtained, it falls below the required standards of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as the recognition that the minimum of essential standards must be observed in the administration of justice. Whether the objection to the statement be on constitutional or other grounds, the crucial test is whether it was obtained in compliance with basic or fundamental fairness, and the trial judge will have a discretion to exclude it ‘where it appears to him that the public policy, based on a balancing of public interest, requires such exclusion’ – per Kingsmill Moore J. at p. 161 of the report of O’Brien’s case.”
Further, the courts have an express duty to protect persons from invasions of their constitutional rights. In Trimbole v Governor of Mountjoy Prison [1985] IR 550 at p. 573 general principles were deduced by Finlay C.J. as follows:-
“The courts have not only an inherent jurisdiction but a positive duty:
i To protect persons against the invasion of their constitutional rights;
ii if invasion has occurred, to restore as far as possible the person so damaged to the position in which he would be if his rights had not been invaded;
iii to ensure as far as possible that persons acting on behalf of the Executive who consciously and deliberately violate the constitutional right of citizens do not for themselves or their supporters obtain the planned results of that invasion.
. . .
The jurisdiction and direct duty arising from the Constitution and the position of the Courts created by it is in some way similar to, though more ample and dominant than what I am satisfied was an inherent jurisdiction recognised by the common law courts to prevent an abuse of its own process.”
The right of the applicant to due process, and the duty of the Court to protect such a due process and guard against abuse, are fundamental pillars of the Constitution. In the abstract such principles are clear. In their application a court has to consider the facts of each case.
The right of the applicant to due process is a clear mandate of the Constitution. Unlike other articles it is short and pithy, but that does not detract from its importance. Rather it means that there are no qualifying phrases to this important right. It is a right inherent in the concept of justice, which is at the core of the constitution. In State (Healy) v. Donoghue [1976] I.R. 325 O’Higgins C.J. stated at p. 348:
“. . . the concept of justice, which is specifically referred to in the preamble in relation to the freedom and dignity of the individual, appears again in the provisions of Article 34 which deals with the Courts. It is justice which is to be administered in the Courts and this concept of justice must import not only fairness, and fair procedures, but also regard to the dignity of the individual. No court under the Constitution has jurisdiction to act contrary to justice. . . .
(Article 38.1) must be considered in conjunction with Article 34; with Article 34.1.1, under which the State guarantees in its laws to “respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”; and with subs. 2 of the same section under which “the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen”. Being so considered, it is clear that the words ‘due course of law’ in Article 38 make it mandatory that every criminal trial shall be conducted in accordance with concepts of justice, that the procedures applied shall be fair, and that the person accused shall be afforded every opportunity to defend himself. If this were not so, the dignity of the individual would be ignored and the State would have failed to vindicate his personal rights.”
While applying these principles to protect the rights of an accused the court will also have regard to the right of the People that offences be prosecuted. This may require the court to balance competing rights. On a hierarchy of constitutional rights, the applicant’s right to a fair trial is superior to the community’s right to have the matter prosecuted: Z v. D.P.P. [1994] 2 I.R. 476. In balancing competing positions the test is whether there is a real or serious risk of an unfair trial for the accused: D. v. D.P.P. [1994] 2 I.R. 465. The right of the People is also part of the equation. This incorporates the right to have an accused prosecuted; the right to have a fair trial system in the community; and to guard against unfair trials which may lead to miscarriages of justice. The position of victims (and their families) should not be excluded from this equation either.
Thus in these few words of Article 38.1 is the root of our justice system, of a fair trial system.
8.3 Comparable jurisprudence
Counsel for the applicant referred to the fact that Witness Protection Programmes have existed in other common law countries for many years and drew attention to serious miscarriages of justice which have occurred. It was not contested that this and related cases were the first occasions on which such a programme was introduced in Ireland. While a case was argued that evidence should not be admitted from a person in such a programme, the core of the case made on behalf of the applicant was not that such a programme could not be introduced, but that the programme established in relation to this case resulted in unfair procedures. Thus it is necessary to consider the appropriate approach to be taken by a court to evidence given by a person in a Witness Protection Programme under the Irish Constitution and the law.
8.4 Warning
In contemplating the position of evidence from persons in a Witness Protection Programme the law relating to the testimony of an accomplice is a useful analogy. The evidence of an accomplice is admissible and may ground a conviction even if there is no corroborating evidence. However, it has been well settled in Irish common law that there should be a warning given to the jury on the dangers of convicting on such evidence absent corroborating evidence. This was stated clearly by Butler J. in Dental Board v. O’Callaghan [1969] I.R. 181 at 183 where he said:
" “There is no rule of law to the effect that the uncorroborated evidence of an accomplice must be rejected. The rule is that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is dangerous to convict on the evidence of an accomplice unless it is corroborated; but having borne that in mind and having given due weight to the warning, if the evidence is none the less so clearly acceptable that the tribunal is satisfied beyond doubt of the guilt of the accused to the extent that the danger which is generally inherent in acting on the evidence of an accomplice is not present in a case, then the tribunal may act upon the evidence and convict.”
The warning is mandatory, but, that having been given, corroboration is not. The trier of fact, having considered the circumstances and the warning, may determine that the evidence is credible and accept such testimony. Alternatively, it is open, in all the circumstances, to require that there be independent evidence to support the testimony of such a witness. Such a determination will depend on the facts and circumstances of the case.
The rationale behind the common law rule requiring a warning before acting upon the uncorroborated evidence of an accomplice applies equally to the evidence of a person in, or who is going to join, a Witness Protection Programme. There is a danger that the witness may not tell the truth in the hope of receiving benefits. In relation to the Witness Protection Programme this applies also to expectations the witness may have into the future for him or herself and their family. Thus there is the danger that the witness may seek to obtain additional benefits by his or her evidence. There are dangers especially where there has been a grant of immunity, and/or the prosecution has supported the giving of a light sentence. These and other factors may arise in relation to a witness in a Witness Protection Programme.
I am satisfied that to ensure a fair trial the same approach should be taken to evidence given by a witness in a Witness Protection Programme as to evidence given by an accomplice. Thus, to adapt the exposition of Butler J. set out above, there is no rule of law to the effect that the uncorroborated evidence of a person in or going into a Witness Protection Programme must be rejected. The rule should be that the trier of fact must clearly bear in mind and be warned that it is dangerous to convict on the evidence of such a witness unless it is corroborated; but having borne that in mind and having given due weight to the warning, if the evidence is none the less so clearly acceptable that the trier of fact is satisfied beyond reasonable doubt of the guilt of the accused to the extent that the danger which is generally inherent in acting on the evidence of a witness in a Witness Protection Programme is not present in the case, then the trier of fact may act upon the evidence and convict.
8.5 Corroboration
In R V. Baskerville [1916] 2 K.B. 658 Lord Reading defined corroboration as follows:
“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.”
A somewhat similar approach was taken in Ireland in The People (Attorney General v Levison [1932] I.R. 158. In that case the Court of Criminal Appeal held that even assuming there was no corroboration of B.K.’s evidence, the jury were entitled to act on the uncorroborated evidence of an accomplice as they had been duly warned by the trial judge, and, as the evidence was sufficient to support their finding, their verdict could not be set aside, and leave to appeal way refused. O’Byrne J. at p. 165 pointed out that:
“What constitutes corroboration must depend on the facts and circumstance of each particular case, on the defence set up by the accused, and on the nature of the question to be determined by the jury.”
He went on to define corroboration as:
“Accordingly as it seems to us evidence of any material circumstance tending to connect the accused with the crime and to implicate him in it would appear to us to be corroboration in the circumstances of this case.”
Thus there are three strands to corroborative evidence. First, that it tends to implicate the accused in the commission of the offence. It renders it more probable that the accused committed the crime.
Secondly, it should be independent of the evidence which makes corroboration desirable. However, as Lord Reid said in D.P.P. v Kilbourne [1973] AC 729 at p. 750:
“There is nothing technical in the idea of corroboration. When in ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it.”
Thus the nature of corroborative evidence depends on the facts and circumstances of the case and the defence of an accused. Corroborative evidence establishes a link which tends to prove that the accused person committed the offence. Corroboration may be found in a simple fact. For example, in the People (AG) v William O’Sullivan [1930] IR 552, a case of sodomy, corroborative evidence was the evidence of boxes found in a room. Kennedy C.J., delivering the judgment of the Court of Criminal Appeal, said the following at p. 557:
“The whole story told by the boy from the meeting with the accused up to the point of entering the unoccupied house, and as to some of the incidents within the house (e.g. the going upstairs and coming down with the lighted candle), and as to the sending out of the boy crying into the street again, have been corroborated in a remarkable manner by the evidence and statement of the accused himself. There is, moreover, one further item of evidence corroborative of the boy’s story which goes nearer to the actual crime. I refer to the boy’s story of boxes of ointment and the corroboration by the boxes found by the guard in the appellant’s rooms, and afterwards identified by the boy. The state of distress of the boy as he came away from the house, as proved by the civic guard and admissible as part of the res gestae, is (but his complaint is not) further evidence in corroboration. There is, in our opinion, a body of circumstantial evidence of a material character, in addition to the evidence of the accused and his surrounding circumstances, which supports the whole story of the boy (including the commission of the offence) and directly implicates the accused.”
The evidence of the boxes was a material link in the case. It was independent evidence implicating the accused in the commission of the crime. While it might have been possible for the boy to know of the boxes from a previous innocent visit, taken in the context of all the circumstances of the case this evidence was corroborative of the case put forward by the prosecution.
The nature of the defence may be critical in determining what is corroborative evidence. If, for example, the defence is that a person was not at a premises then evidence by that person as to the interior of the premises may be corroborative, as, there being no suggestion that the person had been there for another reason, it tends to link the accused to the crime.
Thirdly, it should be credible. It should be supporting evidence which has a degree of credibility. In D.P.P. v Hester [1973] A.C. 296 at 315 Lord Morris of Borth-y-Gest stated:
“The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible.”
This is a matter of common sense. Corroboration arises where the evidence to be corroborated has a degree of credibility. However, corroboration is not a two stage process. It is not a process in which there is first a determination as to whether a witness is credible, and, if he is credible, then the issue of corroboration is addressed. I would distinguish any two step approach based on an interpretation of D.P.P. v Hester [1973] A.C. 296.
The evidence of a witness, which is the subject of a warning, should be considered in light of all the evidence of the case. It should be considered to see how it fits in with all the evidence of the case. The evidence of a witness, such as an accomplice, does not need to be considered separately and categorised prior to an analysis of corroboration. I would also adopt the approach taken by Lord Bridge of Harwich in Attorney General of Hong Kong v Wong Muk Ping [1987] 1 AC 501 where he stated at page 512:
“Where the prosecution relies on the evidence of an accomplice and where … the independent evidence capable of providing corroboration is not by itself sufficient to establish guilt, it will have become obvious to the jury in the course of the trial that the credibility of the accomplice is at the heart of the matter and that they can only convict if they believe him. The accomplice will inevitably have been cross-examined to suggest that his evidence is untrue. The jury will have been duly warned of the dangers of relying on his evidence without corroboration. Their Lordships can see no sense in the proposition that the jury should be invited, in effect, to reject his evidence without first considering what, if any, support it derives from other evidence capable of providing corroboration.”
The nature of corroborative evidence was described succinctly by Maguire J. in The People (Attorney General) v Trayers [1956] I.R. 110 at page 114:
“In this connection, the judge should explain to the jury what is meant by corroboration, namely, ‘independent evidence of material circumstances tending to implicate the accused in the commission of the crime with which he was charged’ (per Sullivan C.J. in Attorney General v Williams [1940] IR 195 at page 200).”
I would adopt and apply this definition.
8.6 Circumstantial evidence
Circumstantial evidence may be corroborative evidence. Thus in The People (A.G.) v William Sullivan, referred to previously, the court was of the opinion, having considered the evidence, that there was a body of circumstantial evidence of a material kind which supported the boy’s story, including the commission of the offence, and which directly implicated the accused. Thus, corroboration may be obtained in a body of circumstantial evidence, more than one piece of circumstantial evidence, which has a cumulative effect and establishes corroboration. Not every piece of the independent circumstantial evidence may implicate an accused with the offence, but the collection of circumstantial evidence as a whole tends to implicate the accused.
8.7 Multiple Factors
In some cases, as here, there are multiple factors relevant to a witness and the issue of corroboration. In this case, in several instances, witnesses were both in a Witness Protection Programme and were accomplices. While the law as to corroboration remains the same, such multiple factors will be relevant to the judge delivering the warning, the jury, and to a court which is itself a trier of fact. The likelihood of the trier of fact requiring corroboration will rise as the factors multiply.
In this case the trial court dealt expressly with the circumstances, including that witnesses were both accomplices and in a Witness Protection Programme. While the trier of fact may convict, after the appropriate warning, on the evidence of such a witness, it is open to the trier of fact to require corroboration of the witness’s evidence, as did the trial court in this case.
These multiple factors go to the issues of credibility and to the weight to be attached to the evidence. Thus they should be assessed in light of all the circumstances of the case. However, it is open to the trier of fact to determine that inspite of these multiple factors the credibility of a witness is such that corroboration is not required and that significant weight may be given to his evidence.
The multiple factors are matters for the trial court to assess and determine having heard all the evidence in the case, both in the giving of the appropriate warning by the trial judge and in the determining of the facts of the case by the jury, or the court.
In this case it is clear from the judgment that the trial court was aware of the dangers of convicting on evidence from a person who was both in a Witness Protection Programme and who was an accomplice. The trial Court referred repeatedly to compromising facts and regarded the evidence cautiously. It took a different view in its assessment of different witnesses. This illustrates that the application of the law as to corroboration is quintessentially a matter for the trier of fact after the appropriate warning is given.
8.8 A Witness Protection Programme - its dangers and its benefits
While a Witness Protection Programme is a new feature in Ireland it has been introduced elsewhere. It has been part of the response to the changing nature of crime. The situations which have given rise to such a programme are not unique to Ireland, they include organized crime, gang warfare, drug trafficking and significant funds entering the criminal world by criminal activities such as selling drugs illegally. It has been determined in other jurisdictions that it was necessary to protect witnesses who give evidence of such activities. It is not unusual that a witness in a Witness Protection Programme be both a member of the programme and an accomplice. Counsel for the applicant did not argue seriously that there could not be a Witness Protection Programme, quite correctly in my view, but rather made submissions on the way that the programme applicable to this case was organized and applied.
The Witness Protection Programme in relation to the events in issue was the first such progamme in the State and there is no doubt that it was not well organised or executed. It had deficiencies. However, the fact that it was not organized as counsel for the applicant submitted it should be, the fact that it was not a perfect programme, is not immediately fatal. It is necessary to consider the facts and circumstances to determine whether it undermined due process and rendered the trial unfair.
The witness in a Witness Protection Programme receives benefits. A Witness Protection Programme protects witnesses. There are benefits to both the prosecution and the witness. The essence of the programme is protection, and in the protection the witness will receive benefits from the State.
Consequently there are good reasons why the evidence of a witness in a Witness Protection Programme should be considered with caution by the courts. There may be the danger that the witness fabricate evidence to his advantage. He may seek favour to improve his conditions by giving prejudicial evidence against other persons.
There were a number of aspects relevant to the Witness Protection Programme raised by the applicant and considered by the trial court.
“Water under the bridge”
The trial court referred to some matters being ‘water under the bridge’, see paragraphs 5.4 and 5.5 above. The trial court was correct that trials may not be reopened, that immunity had been granted irrevocably. As such the three witnesses had nothing to gain or lose on these issues. The trial court held that what was done could not be undone and that the witnesses had nothing to gain by giving perjured evidence.
While it is correct that the witnesses will not be in danger on the matters stated, there are other areas of benefit to the witnesses. The circumstances are such that their evidence should be treated with caution and not with any assurance that they would not give prejudiced evidence. If this determination of the trial court stood alone it could have consequences. However, it is qualified by the cautious approach which the trial court in fact took to the evidence of these witnesses. In light of the ultimate approach taken by the trial court to the evidence of these three witnesses, the ‘water under the bridge’ determination was not significant. In light of the approach to the evidence subsequently taken by the trial court this error had no significant consequences. Indeed, it was somewhat inconsistent with the tests later set and applied by the trial court for the admissibility of evidence and the weight of evidence.
Early release
There was also an issue raised on the matter of temporary release. Michael O’Neill, an official in the Department of Justice was tendered as a witness by the prosecution. He gave evidence of a meeting in Arbour Hill Prison (Day 34, 22nd February). The purpose of the meeting was to discuss three items: temporary release, TV’s in the prison cells and education. The meeting was with the governor, chief officer, two members of the Garda Síochána and Michael O’Neill. It was in a context where Charles Bowden and Russell Warren were agitating for early release from prison. There was a point made at the meeting that Charles Bowden was obsessed with his family’s safety and was not focussed on the trial (the D.P.P. v Ward trial) in which he was to give evidence shortly thereafter. Temporary releases were discussed as a solution. The conclusion of the meeting was that both prisoners would be granted an a.m./p.m. temporary release within the next few days so that they could meet with their families and satisfy themselves as to their family’s safety. It was then suggested or agreed that Michael O’Neill would put forward to the Minister a programme of six a.m./p.m. temporary releases over the next twelve months. There were also discussions about overnight temporary releases. Michael O’Neill wrote in a memorandum:
“The question of an overnight TR was also discussed and this was not ruled out by the Garda. The granting of an overnight would only be considered for a very special occasion and would be dependent on his/their performance in court.”
On his return to the Department Michael O’Neill gave the memo to the Assistant Secretary who went to the Minister with it. The words “and would be dependent on his/their performance in court” were deleted. Michael O’Neill made a recommendation and the recommendation was approved by the Minister, with the said deletion.
This was part of the evidence upon which the applicant sought to exclude Charles Bowden and Russell Warren’s evidence as being so suspect as to be inadmissible. However, it has to be considered in context. That context was that there was a meeting where three issues were raised and arising therefrom draft recommendations brought to the Department. The words referred to in the legal submissions were deleted and so while they were part of a proposal they were not part of a decision by the Department. While it does display an inappropriate approach by personnel at the meeting the decision taken did not.
Benefits – more perceived than real
The trial court held that benefits to the three witness John Dunne, Charles Bowden and Russell Warren from giving evidence on behalf of the prosecution at the trial was more imagined than real. On that basis the court was not persuaded that the witnesses gave perjured evidence in consideration of those perceived benefits. The Court of Criminal Appeal held that the trial court erred in its comment that the benefits were more perceived than real. It held that the point which should have been considered was whether if they were perceived as benefits, irrespective of whether that perception was correct, whether that influenced the witnesses to give false evidence. The Court of Criminal Appeal pointed out that it was the perception not the reality which would affect the mind of the witnesses. The Court of Criminal Appeal went on to hold that the error of the trial court was not such as to undermine the judgment given the reasoned and clear analysis and decision as to the test to be applied to the evidence of each of the three witnesses. I would uphold the determination of the Court of Criminal Appeal on this issue.
However, there were matters for concern. For example, the return of money to the witnesses in the manner in which it was done. This was addressed and considered by the trial court and was a factor in their analysis. This may be seen in the clear finding of the trial court:
“This court was also satisfied that there was no reasonable ground upon which the Garda Síochána could have believed that either Charles Bowden or Russell Warren had a legitimate claim to any portion of the monies which had been seized by the Garda Síochána in the course of their investigation and, therefore, those monies should not have been returned to those men and, in particular, monies should not have been returned to Russell Warren in installments, as it was. Apart from any other considerations, the evidence of Mr. Horan, Mr. Warren’s accountant, to the effect that Mr. Warren’s profit [in] his industrial cleaning business for the year ending December 1995 was only £7,386 and Mr. Horan said that there was no evidence that he had received any earnings from his business since 5 March 1996. In those circumstances, the Court cannot understand how the Garda authorities concluded that any of the monies found when they searched Mr. Warren’s residence and that of his parents in September 1996 were not the proceeds of crime but rather legitimate profits from his cleaning business, and therefore, money which he was entitled to have returned to him. As has already been indicated, it is the view of the Court that there was no justification whatsoever for that view.”
The trial court accepted that if it was a situation of dire need it would be different, but that that was not the position. However, the trial court was prepared to accept the bona fides of the members of the Garda Síochána in the matter.
Given these clear findings of fact by the trial court, and the conclusions reached, I would not intervene. As the trier of fact was the trial court and not a jury we have the benefit of its analysis of the facts. While the trial court fell into error in a limited area by holding that any perceived benefits to the witnesses were more imagined than real, for the reason given earlier, essentially the subsequent approach by the trial court to the evidence of the witnesses in issue, I would dismiss the appeal on these grounds.
Submissions were made on behalf of the applicant as to the necessity for rules and a structure, for the management of a Witness Protection Programme. The establishment of a Witness Protection Programme is a matter for the Executive and/or the Legislature. It falls to the Courts to ensure fair procedures.
It was submitted that before a witness was admitted to a programme the management of the programme must set or invalidate the quality of the witness. In this submission there is the sense of a pre-trial decision by persons other than a court. While the Director of Public Prosecution has the duties of a prosecutor, and as such must assess the case prior to a prosecution, the ultimate decisions as to the reliability and credibility of a witness rest with the court. It is not for another body to determine whether a witness is rehabilitated and a truthful witness.
It was submitted that the rules of the programme should include a statement of the advantages to the witness, which might include granting of formal immunity (no informal immunity should be granted – it was submitted), release from prison, temporary releases, the level of protection and relocation, and payments. While in principle such an open approach to the benefits would appear to have merit, and is a matter for the Executive, in considering the issue of fair procedures there is at least one relevant consideration. The essence of such a programme is protection, it is to protect a witness, and his or her family, whether it be from one person or a group of persons. In such circumstances it may be necessary to keep much of this information confidential, to protect the witness. However, the issue of immunity is one which, in general, should be made known. In this case, from the run of the case and the terms of the judgment, it is clear that the trial court was aware of the position of the witnesses.
Counsel submitted that the conditions were not fixed at the outset and that this rendered the process unfair. It does appear that the programme developed over time. This (and related) cases were the first where a Witness Protection Programme had been used and it was not introduced in a carefully planned form. While issues, such as temporary release, were raised during the programme, the serious harm contended for, for example as by the deleted words on the memorandum of the proposal made by Michael O’Neill, were not proved to the satisfaction of the trial court.
There is no doubt that the payment of money, being the proceeds of crime, should not be made to an accomplice who is expected to give evidence. The trial court held clearly against such a practice. In considering this matter the trial court held that it did not find that there had been a lack of bona fides by the members of the Garda Síochána. There is no issue in this case of the Executive consciously and deliberately violating constitutional rights. Thus the modern case law commencing with The People (at the suit of the Attorney General) v. O’Brien [1965] I.R. 142 does not arise.
It was submitted that when a witness in a Witness Protection Programme gives evidence in a number of trials it is incumbent on the Director of Public Prosecutions to review the evidence, decide if he can be relied upon, and, if there is disparity between the evidence given in one trial as against another, it was submitted that it was unfair for the State to lead such evidence. First, it must be recollected that the Director of Public Prosecutions is independent in making the decisions as to whether a prosecution should be brought. Secondly, in general the decision of the Director is not reviewable in the absence of malice: State (McCormack) v. Curran [1987] I.L.R.M. 225. In addition, an analogy may be drawn to a situation where there are conflicting statements. Once all the statements are available to the defence it will have the opportunity to raise the inconsistencies and the court will have the knowledge to arrive at a view on reliability and credibility of a witness. So too in a situation where a witness gives diverse evidence in different trials, once that fact is known to the defence, who may use it appropriately, the process is fair.
Counsel submitted that there were on-going inducements in response to the demands of Charles Bowden and Russell Warren which gave rise to an unfairness in the trial which should have given rise to an exclusion of the evidence of Charles Bowden and Russell Warren. I have addressed specific issues of benefits in the course of this judgment already. As to the totality of the situation, that is a matter quintessentially for the trial court. It is true that a trial court could fall into error and be subject to appeal on this matter. However, in this case, where there are extensive and clear findings by the trial court on the facts, and a principled approach to the evidence, by which much was excluded, on the basis of a cautious approach to the evidence of persons in a Witness Protection Programme, where corroborative evidence was generally sought of all the evidence which was relied upon, it would not be appropriate to exclude the evidence of the witnesses.
The trial court understood the critical nature of the evidence of the three witnesses. The trial court expressed an awareness that the evidence of Charles Bowden, Russell Warren and John Dunne was essential to the prosecution case. Further, the trial court was aware of the compromising facts relating to each witness. Against that background the trial court analysed the evidence and took a careful and cautious approach.
The trial court specifically addressed the issue that witnesses were returned money purportedly belonging to them which may have been the proceeds of crime. The trial court was critical about certain actions and inactions of some members of the Garda Síochána, and it clearly had to the forefront of its considerations that conduct of the Gardaí. Indeed, such conduct was expressed to be the reason why some evidence was not admitted by the trial court.
I would affirm the findings of the trial court and the decision that while aspects of the procedures followed by the Garda Síochána compromised the evidence of Charles Bowden and Russell Warren they were not such as to compromise the entire criminal process system. These shortcomings were regretted by the trial court, and I would endorse that view. Such infirmities (for example, the failure to keep a record by the Garda Síochána and returning monies with no legitimate basis) should not arise and in other circumstances may prove fatal.
In this case there was a robust defence by counsel on behalf of the applicant. Counsel on behalf of the applicant vigorously cross examined the witnesses for the prosecution. Consequently, the trial court had the benefit of this rigorous testing of the evidence of witnesses which enabled it to form a clear view of their credibility. In light of the run of the trial, and the time given to questioning the credibility of key State witnesses, including Charles Bowden and Russell Warren, the trial court was in a strong position to assess the witnesses. This was so not only because of the evidence given, but, more importantly, because of the many days of evidence given by witnesses in cross-examination, during which the Court could assess the demeanour and manner of the giving of oral evidence and so assess the credibility of the witnesses.
The nature of the key witnesses, persons who were accomplices and who were in a Witness Protection Programme, meant that any court considering such evidence would approach it with caution. Further, the trial court set out in detail the principles which it applied.
The Court of Criminal Appeal held:
“This court is satisfied that the principles on which the Special Criminal Court is seen to have relied are clearly stated in the judgment in such a way that they are open to examination and challenge. The decision might perhaps be criticised on the basis that it did not deal with every individual piece of evidence which was before the court. However, this court does not feel that that approach would be justified. It must be remembered that this was a hearing before a non-jury court which had a dual function of stating the law and of determining facts. The decision in the present case set out the relevant legal principles clearly and in some detail, as it was bound to do, and indeed the applicant does not seriously contest the legal principles set out. In relation to its other function, as a fact finding tribunal, the position is somewhat different. If this had been a trial before a jury, this court would have no indication of how the jury reached its verdict or of what witnesses it considered to be reliable and credible. In the present case the court was looking at the evidence of witnesses which it had before it for considerable periods of time, it was able to examine the demeanour of those witnesses and to estimate their reliability based on their own evidence and on the surrounding evidence. This is what the court did, and expressed its views of the reliability of witnesses with some clarity. The court then made findings of fact on a number of matters relying both on its assessment of the witnesses and on the surrounding facts which were proved by others. We will deal later in this judgment with the question of corroboration, but it is sufficient to say at this stage that we are satisfied that the decision of the trial court was set out in sufficient detail for it to be properly considered by this court”
I would endorse this approach. The trial court did set out clearly the principles upon which it relied. As to the facts it found, as was pointed out, and indeed stressed, the witnesses were before the court giving oral evidence for a considerable length of time, and on contested issues the witnesses were subjected to a rigorous cross examination. Thus the trial court had ample opportunity to consider their evidence and demeanour and to assess their reliability, which it did and expressed its views on the credibility of the witnesses very clearly.
In this case the trial court laid down the specific tests it would apply to the three key witnesses, see paragraphs 5.7 and 5.8 above. The trial court believed that pieces of the evidence of Charles Bowden and Russell Warren were true but it decided that it would act upon it only if there was corroboration. Thus, the warning having been given even though it was open to the trial court to act upon evidence of the witnesses which it believed to be true the trial court decided that it would only so do if there was corroboration. This was a cautious and careful approach by a trial court. In applying this test the trial court made reference to corroborating facts in relation to the relevant issues, as may be seen in the judgment of the trial court and as referred to herein. In some instances the corroboration was by way of cumulative circumstantial evidence. In particular this may be seen of the independent evidence of the search at the Greenmount lock-up. Thus, in relation to the drugs charges, there was evidence upon which the trial court was entitled to reach the decision which it did. There was corroborative and circumstantial evidence. For example, the evidence which was admitted in relation to the Greenmount lock-up included evidence as to boxes with cannabis resin debris. The evidence supported the view that the boxes had been used for cannabis resin. The defence postulated that there was an illegal trade in tobacco, but called no evidence of this and did not press it on cross examination. There was no evidence to ground this submission upon which the trial court did, or could, rely. There was considerable evidence by Dr. O’Driscoll of the Forensic Science Laboratory as to the weight of the boxes. Michael Cashman (Day 26, p. 11) gave evidence that the boxes imported through Seabridge weighed 25 kilograms. Dr. O’Driscoll did tests to compare weights. Dr. O’Driscoll gave evidence that if he took a box and put in a Volvo compressor it weighed 15.39 kilograms. If he put tobacco in the box it weighed 8.5 kilograms. One of the boxes found in the Greenmount lock up could contain 98 bars of cannabis resin. Dr. O’Driscoll packed this number into a box and found that it weighted 27.87 kilograms. The cannabis weighed 24.38 kilograms. He also took a similar box and put cigarettes in it and it weighted 7.97 kilograms. As the evidence relating to the items at the Greenmount lock up was independent of the evidence to be corroborated, material, and tended to implicate the applicant in the chain of the crime, it was entitled to be considered as corroborative. The trial court used as corroborative evidence that which was independent, material, which tended to implicate the applicant, and which it determined to be credible.
As to John Dunne, the trial court found that his honesty was not challenged, except on his critical evidence identifying the applicant. While the trial court accepted that he was an accomplice it did find that other factors which compromised the evidence of Charles Bowden and Russell Warren did not apply to him. While acknowledging that it could act on his evidence without corroboration the trial court was not disposed to do so. So once again, the trial court while entitled in law to accept the evidence, after a warning, and to act upon it, took a cautious approach to preserve a fair trial. The evidence was sufficient to support the findings of the trial court and I would not intervene in its analysis or determination on this evidence.
As to the issue of the identification/recognition of the applicant by John Dunne see paragraph 11.2.
The testimony of a person in receipt of a benefit from the State, such as a Witness Protection Programme, should be viewed with caution. Such evidence is not inadmissible but the reality of benefit for the witness requires a cautious approach and may reduce the weight which may be attached to such the evidence. Such evidence is comparable to the evidence of an accomplice as, both an accomplice and a person receiving benefit from a Witness Protection Programme have a potential motive to perjure himself. It appears to me that the appropriate approach for a court to take to such evidence includes: (a) The testimony from persons receiving a benefit should be viewed with caution; (b) while such evidence is not inadmissible it should be scrutinized carefully; (c) the credibility of such a witness should be analysed in light of all the evidence in the case; (d) all the facts and factors of the case should be analysed to determine the weight, if any, to be given to the evidence; (e) The trial judge should give a warning to a jury of the dangers of relying on such evidence without corroboration. (f) Once the warning is given, however, the trier of fact may determine the appropriate weight to be attached to such evidence and may convict in the absence of corroborative evidence. (g) Corroborative evidence may include circumstantial evidence, as considered previously in this judgment.
The trial court in a careful and cautious approach to the evidence did in essence apply such an analysis.
The applicant in a gang and a prime mover
The trial court was satisfied that the applicant was part of a gang. The trial court was also satisfied that it was a gang the principal activity of which was drug trafficking. See 5.20 above.
The Court of Criminal Appeal referred to three pieces of evidence which it stated was the basis upon which the trial court held that the applicant, Charles Bowden, Paul Ward, Brian Meehan, Shay Ward and Peter Mitchell were a gang. The Court of Criminal Appeal held that any inferences from the three pieces of evidence it referred to could only lead to a conclusion that they knew each other and that the further evidence relating to the Unit in Greenmount Industrial Estate does not associate the applicant with the activities.
In this analysis of the judgment of the trial court I am satisfied that the Court of Criminal Appeal erred. The trial court specifically stated that it felt it was unnecessary to review in detail all the independent evidence which it heard, which it stated it had no reason to doubt, and which pointed to the fact that Charles Bowden, Paul Ward, Brian Meehan, Shay Ward, Peter Mitchell and the applicant were well known to each other and fraternised with each other. It did refer to some evidence, see the judgment of the trial court, see paragraph 5.19 and 5.20 above. It concluded that in all the circumstances it had no difficulty in coming to the conclusion that it was reasonable to describe the group of six men as a gang. Further, it was satisfied that the evidence led inexorably to the conclusion that it was engaged in drug trafficking.
There was evidence before the trial court upon which it was open to it to come to this conclusion. The evidence was given to the court orally over a 44 day trial. It may be that an appellate court would come to a different conclusion. But it is not for an appellate court to take such a step. There was evidence to support the findings of the trial court.
As to the question whether the applicant was the leader of the gang, the trial court had no doubt but that he was “the prime mover” insofar as the importation was concerned. Furthermore, the trial court held that it was a reasonable inference on the evidence as to the distribution of the proceeds of the sale of the cannabis resin which the applicant was responsible for importing that he was “the largest beneficiary.” The trial court held that this would suggest that he was “the supreme authority” among the members of the gang. The trial court added that the evidence fell short of establishing that the applicant played an active role in the day to day activities of the gang.
I am satisfied that there was evidence upon which the trial court could reach these conclusions. It was open to the trial court to make such determinations – it was within its jurisdiction. I would not intervene in such a determination of fact grounded upon evidence, including extended oral evidence, which was opened before the trial court.
Consequently I would respectfully disagree with the approach of the Court of Criminal Appeal when it said that the evidence might lead to a suspicion that the applicant was the leader, but held that they were equally consistent with the applicant simply being the person who imported the drugs and supplied them to the gang. The Court of Criminal Appeal also stated that the money found in the car could simply have been money which was paid to the applicant for drugs, and that the letters (which the Court of Criminal Appeal agreed were threatening) were equally open to the explanation that they were written to protect his business of importing drugs and supplying them to Charles Bowden or to the gang, rather than evidence of his being part of the gang. These issues of fact are matters quintessentially for the trier of fact, usually a jury, in this case the trial court. I would not intervene in the careful analysis of the evidence by the trial court and the finding of fact that the applicant was the leader of the gang. Much of the evidence on which this finding was based was on oral evidence given before the trial court. The inferences drawn were open to the trial court. The role of the appellate court is not to impose its own view of the evidence, but rather, if the findings of fact made by the trier of fact are supported by credible evidence, an appellate court is bound by those findings. It is open to a court of appeal to review inferences, but in a situation, as here, where much of the evidence was oral and the inferences arose from oral evidence, where the demeanour of the witness may be a critical factor to the determination, I would be slow to intervene in such a situation.
Consequently, I would not take the same approach as taken by the Court of Criminal Appeal. Rather, on the evidence and the determinations I would affirm the findings of the trial court, that the applicant was a member of the gang, was “the prime mover” in the importation of the drugs, was the largest beneficiary, and while the evidence did not establish that he played an active role in the day to day activities of the gang, he was “the supreme authority”.
9. Opinion on the murder charge
In assessing the findings in relation to the murder charge the Court of Criminal Appeal reviewed the evidence and the findings of the trial court including that to infer guilt to the applicant would be to decide guilt by association. The Court of Criminal Appeal held:
“This approach to evidence of association in relation to the murder charge differs totally from that in relation to the charge of possession for sale or supply of drugs. It certainly seems to this court quite inconsistent that evidence of association should be used to convict on one charge and rejected on another.”
I would endorse this opinion on inconsistency. In relation to the murder charge, which is not before this Court as there is no appeal from an acquittal, but which was referred to by counsel, I would endorse a different approach to the evidence as to threats to Veronica Guerin by the applicant. The trial court was cautious in its approach to this evidence. The trial court held that evidence that the late Veronica Guerin’s life was threatened by the applicant, and evidence that the applicant had also threatened Russell Warren (whom the applicant perceived as a threat to himself), and evidence that the applicant was the defendant in an action brought arising out of an assault on Veronica Guerin, who was subsequently murdered, all gave rise to the suspicion that the applicant had some hand, act or part in the murder of Veronica Guerin. However, the trial court went on to hold that the evidence amounted to no more than suspicion and that suspicion is not a ground upon which a man may be convicted of murder.
The trial court accepted the evidence of Felix MacEnroe S.C. of the threat made by the applicant to Veronica Guerin to kill her. This evidence indicated a motive for the applicant. The presence of a motive for the commission of a crime is a relevant fact and it may be an important consideration to be taken into account by a trier of fact, usually a jury. In People (Director of Public Prosecutions) v. Nevin [2003] 3 IR 321 it was held by the Court of Criminal Appeal that evidence of attempts to persuade witnesses to kill the deceased together with evidence of how the murder should be perpetrated, comprised evidence of extreme hostility and ill will on the part of the accused to the deceased and was accordingly admissible at her trial. I would endorse that approach. The evidence in this case also shows extreme hostility and ill will on the part of the applicant. (It is also consistent with evidence establishing that there was a gang of which the applicant held a significant role, as set out previously in this judgment.) The evidence (a) of the applicant threatening Veronica Guerin, and (b) of the applicant attempting to manipulate Russell Warren is relevant. (c) The evidence of the pending case against the applicant of assault on Veronica Guerin was also circumstantial evidence which was relevant to the charge of murder. It appears to me that the approach in People (Director of Public Prosecutions) v. Nevin is more appropriate than that adopted by the trial court.
11 Appeal on other grounds
In addition to the two certified points of law the applicant filed grounds of appeal, which were the same grounds of appeal argued before the Court of Criminal Appeal. The written submissions which had been filed in relation to those grounds in that Court were adopted for this appeal. Counsel for the applicant indicated that they prioritised several of those grounds.
11.1 Extradition
The applicant submitted that the trial was rendered unfair and unsatisfactory by the refusal of the trial court to direct the Director of Public Prosecutions to disclose correspondence and documentation on a file relating to the extradition of the applicant from the United Kingdom. An application was made on behalf of the applicant prior to the commencement of the trial for the disclosure of documents, which, it was argued, were relevant to the lawfulness of his presence before the trial court. It was submitted that the applicant could not be tried by the trial court if he was not lawfully before the court. Counsel set out for the trial court what had happened in the Courts of the United Kingdom (Day 1, 4th December, 2000). The issue raised was the submission that the applicant was not lawfully before the court and that there was an abuse of process in the rendition of the applicant to Ireland. This matter was opened fully to the trial court by counsel for the applicant and counsel for the Director of Public Prosecutions. In effect the applicant sought an enquiry as to whether or not the applicant was lawfully before the court, to go behind the warrants before the court. The trial court held, on the 6th December 2000:
“In the opinion of the court, while it is not persuaded that it is empowered to direct that the enquiry sought on behalf of Mr. Gilligan be undertaken because of the absence of any specific statutory power on that behalf, neither does it accept that Mr. Gilligan’s rights are in any way diminished or fettered by the fact that he is to be tried in this court rather than before the ordinary courts.
In that regard, the fact that Mr. Gilligan is being tried in the Special Criminal Court does not diminish or deprive him of any rights which he might have had had he been returned for trial before the ordinary courts. However it does mean that the venue in which he may assert those rights is not the court of trial because the court of trial is precluded by the absence of statutory power to grant certain reliefs. The appropriate venue in which to ventilate and to seek to vindicate any such rights which are not within the power of the Special Criminal Court to grant is the High Court, which has been available to Mr. Gilligan at all material times had he chosen to avail of it. And it is still available to him.
. . .
Certainly Mr. Gilligan is entitled to justice and in particular he is entitled to have his alleged grievances investigated by a court of competent jurisdiction, whereas we have already indicated not by this court. This court in the hierarchy of courts in this country is an inferior court, as has been recognised from its inception, and we do not accept that by refusing Mr. Gilligan to undertake the inquiry which he seeks we are depriving him of justice for the simple reason that it is still within his entitlement . . as it has been since he was invited to do so by the divisional court in the United Kingdom and by the House of Lords and since he was extradited to this country earlier this year . . to apply to the High Court for the reliefs which he seeks.
. . .
Accordingly, while trial by the Special Criminal Court requires that a person seeking relief which it is not within the power of that court to grant must do so in the High Court, this Court is satisfied that such a person’s rights are in no way diminished on that account.
In the circumstances that the court is satisfied that it has no power to grant an order of habeas corpus or to direct the inquiry sought on Mr. Gilligan’s behalf, it is not we think necessary to review or adjudicate on the several submissions made by counsel with regard to (a) the onus of proof in the event that the inquiry sought were undertaken; (b) the right of the court to consider the circumstances leading to the extradition of the person who was brought before the court pursuant to a warrant of the court; (c) allegations with regard to the conduct of the State vis-à-vis the witnesses, Charles Bowen, Russell Warren and John Dunne.”
The Court of Criminal Appeal dismissed this ground of appeal. In its judgment it referred to matters somewhat wider than the net issue before the trial court. I take the view that it is not appropriate to consider matters other than the issue of the jurisdiction of the trial court to hold the enquiry sought.
I would not intervene with the decision of the trial court on this issue. In reaching this decision I have borne in mind the fact that the applicant appealed issues of the alleged abuse of process to the High Court and House of Lords in England; that the application in issue was made to the trial court on the opening day of the trial; that the issue was whether he was properly before the court, not his guilt or innocence; that the application was not an application for habeas corpus, judicial review, or a plenary hearing to the High Court; that the documentation before the court was lawful on its face; and that the applicant had and has an entitlement to bring applications to the High Court of Ireland. This is a discrete legal decision on the determination of the trial court as to its jurisdiction to hold the enquiry sought and on that point of law I have no hesitation in upholding the judgment of the trial court and I would dismiss this ground of appeal.
11.2 Recognition
On behalf of the applicant it was submitted that the identification of the applicant by John Dunne was a dock identification. On the grounds of appeal, to the Court of Criminal Appeal, and to this Court, it was submitted that the trial court admitted evidence of “dock identification” and it was submitted that it was inappropriate to admit such evidence. Further it was submitted that the evidence was neither corroborated nor confirmed and that The People (Attorney General) v. Casey (No. 2) [1963] I.R. 33 was misapplied.
I would affirm the finding of the trial court and the Court of Criminal Appeal on this ground. The trial court was entitled to regard John Dunne’s identification as a recognition rather than a dock identification. The trial court clearly scrutinized John Dunne’s evidence as he was an accomplice, yet, having heard his oral evidence and considered photographs, and weighing the evidence, the trial court regarded it, and was entitled to regard it, as a recognition case, given the evidence before the trial court. The circumstances were that the applicant was returned to this jurisdiction on foot of rendition proceedings, and it was then the obligation of the Director of Public Prosecutions to prosecute him. Counsel referred to People (D.P.P.) v. O’Reilly [1990] 2 I.R. 415; People (D.P.P.) v. McDermott [1991] 1 I.R. 395 and The People (D.P.P.) v. Cooney [1997] 3 I.R. 205 and the President of the trial court informed counsel that each member of the court had read the judgments.
I am satisfied that it was open to the prosecution to provide such recognition evidence in this case. Because of the circumstances of the case, including the prior rendition of the applicant, an identification parade was not possible. However, it was open to the prosecution to provide evidence of identity in court. The evidence in this case was not a dock identification. John Dunne gave evidence of meeting the applicant previously on at least five occasions. The evidence was that John Dunne was in the company of the applicant on at least one of the occasions for up to 20 minutes. The fact that the meetings were several years earlier does not prevent their admission as evidence of recognition, although it may be a factor to weigh in considering the evidence.
I am satisfied that the situation in this case was one of recognition, not a dock identification. I would apply also the words of O’Flaherty J. in The People v. O’Reilly [1990] 2 IR 415 at 420 where he pointed out that the holding of an identification parade would probably be a redundant exercise if the witness knows the suspect previously. I am satisfied that the trial court did not err in admitting the evidence of identification and that it was entitled to weigh such evidence and to rely upon it.
11.3 Warning
In this case the issue of the warning to be given on the dangers of convicting on uncorroborated evidence was argued in the trial court. As the trial court was the trier of fact, there being no jury, once the trial court indicated that it had read the relevant case law (as it did) I am satisfied that there was no necessity for the trial court to state expressly that it was warning itself of the dangers of so convicting. The President of the trial court stated that the members of the trial court had read the relevant judgments. It was inferred throughout the judgment, in its method of analysing, and by accepting or rejecting evidence, that the trial court was manifestly aware of the dangers of relying on such evidence where it was uncorroborated. The very tests established by the trial court as to the evidence of the three witnesses indicated this. So an express warning to itself would have been tautologous once it was clear that the trial court was aware of the dangers of convicting on the uncorroborated evidence of a witness. Consequently, I would dismiss the appeal insofar as it raised this issue.
11.4 Testimony of John Dunne
On behalf of the applicant it was submitted that the testimony of John Dunne was not confirmed or corroborated and should not have been admitted or relied upon. On this issue the trial court expressed its view of the evidence of John Dunne clearly, having heard his evidence, and provided a method to approach his evidence. See paragraph 5.12 above. The evidence of John Dunne was critical as it was his evidence that the applicant had requested him to make arrangements for the importation of the consignments. John Dunne gave evidence on Tuesday 16th January 2001, Day 11 and on Wednesday 17th January 2001, Day 12. He gave direct evidence, evidence on cross examination, re-examination, and was further cross examined. The trial court had the benefit of seeing and hearing the witness being rigorously tested by counsel as to his evidence. Testing in this type of adversarial situation enables the court determine the facts. The trial court heard the evidence of John Dunne and was in a position to see and consider his demeanour. The trial court treated John Dunne as a witness who was an accomplice of the applicant. Having heard the evidence, the trial court carefully put his evidence in a different category to that of Charles Bowden and Russell Warren. It was open to the trial court to take such an approach to the evidence. There was evidence to support the findings of the trial court. I am satisfied that great care was taken by the trial court to consider the evidence, determine its admissibility, and weigh it in a fair manner. Consequently I would dismiss this ground of appeal also.
11.5 Jurisdiction
The jurisdiction of the trial court was raised also, on behalf of the applicant, in that it was a ground, inter alia, of appeal, that the trial court erred in finding that there was no requirement to prove that the Director of Public Prosecutions had issued a certificate in respect of the non-scheduled offences tried in the trial. On 1st March, 2001, Day 38 of the trial, it was stated by counsel for the applicant that there was no evidence that the Director of Public Prosecutions had certified Count No. 1 as being a non scheduled offence, a fatal flaw, it was submitted. However, on 4th December, 2000, Day 1, counsel for the Director of Public Prosecutions had confirmed to the court that on the 28th August 1997 Eammon M. Barnes, then Director of Public Prosecutions, intending to have the applicant charged with the offences set out in the schedule to a document which he then signed, which were not scheduled offences under the Offences Against the State Act, 1939, certified that the ordinary courts were, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the applicant on the charges and he directed that, in lieu of being charged with the offences before a Judge of the District Court, he be brought before the Special Criminal Court established by the Government on 30th May 1972 and there charged with the offences. Counsel so informed the trial court, pursuant to s.4 of the Prosecution of Offences Act, 1974, which section provides that the fact that a function of the Director of Public Prosecutions has been performed by him may be established without further proof in any proceedings by a statement of that fact made in writing and signed by the Director or orally to the court by a person appearing on behalf of or prosecuting on behalf of the Director of Public Prosecutions. I am satisfied that the information given to the trial court on Day 1 by counsel for the prosecution was in accordance with s. 4 of the Prosecution of Offences Act, 1974, as recorded on the transcript. I would dismiss this ground of appeal also.
11.6 Additional point from the applicant
The applicant instructed his solicitors to make the following additional point by way of submission to the Court. It was submitted that the effect of the Court of Criminal Appeal’s judgment is to confirm that Charles Bowden and Russell Warren were not being relied upon to provide direct evidence of the applicant’s involvement in any material part of the offences of which he has been convicted. It was submitted that there is no direct evidence from Charles Bowden or Russell Warren that they were asserting that they had had sight of the contents of the boxes which John Dunne was found to have been involved in importing. It was submitted that it was the prosecutor’s case that the evidence of Charles Bowden in particular was required to confirm the direct evidence in this regard. It was submitted that Charles Bowden gave no direct evidence of having had sight of the contents of these boxes at all. On this basis alone the applicant submitted that the Court of Criminal Appeal’s judgment upholding the convictions is unsafe as is the judgment of the trial court.
First, I refer to the findings of the trial court as to ‘A Gang’, set out in paragraph 5.20 above. Secondly, I refer to my determination that the applicant was the prime mover, see paragraph 9 above. Thirdly, in answering the questions as to whether it was a gang whose principal activities involved drug trafficking, the trial court referred to the fact that Charles Bowden said so. The trial Court pointed out that it had reservations about Charles Bowden’s truthfulness. However, because there was independent evidence to support it, the trial court had no doubt that he was speaking the truth because there was persuasive evidence which associated the gang with drug trafficking activities. The trial court referred to the findings of the Garda Síochána at Unit 1B of the Greenmount Industrial Estate and held it provided convincing evidence to corroborate the evidence of Charles Bowden that the unit was used as a base for drug trafficking. The trial court referred to evidence comprising slabs of cannabis resin, traces of cannabis resin in the boxes found in the unit, and cutting equipment and weighing scales which were consistent with the activity of portioning and weighing quantities of cannabis resin; and the trial court held that the lists of initials confirmed Charles Bowden’s evidence that lists of customers were kept. Further factors found by the trial court are set out in paragraph 5.20 above.
The evidence of Charles Bowden, and the corroborating evidence, was admissible, and was weighed by the trial court, and it was within their jurisdiction to find as they did on the evidence before them. I would affirm the decision of the trial court on this aspect of the trial. Consequently, I would dismiss this point raised by the applicant on the submissions.
11.7 I have considered carefully the other grounds of appeal before the Court of Criminal Appeal and this Court. Subject to the determinations in this judgment I am not satisfied that there was any error by the trial court such as to ground a successful appeal. I would dismiss the other grounds of appeal raised on behalf of the applicant also.
12 Right to every man’s evidence
The applicant sought to exclude the evidence of Charles Bowden, Russell Warren, and to a lesser extent John Dunne, on the basis that they were in or would be in a Witness Protection Programme and were accomplices. It has long been settled law that, subject to the appropriate warning, the evidence of an accomplice may be relied upon by a trier of fact. I am satisfied that the same approach should be taken to a witness who is or will be in a Witness Protection Programme. This approach is subject to the trial judge’s control of the trial court and the right and duty of the trial judge to make decisions to achieve a fair trial. This requires constant vigilance as matters may change in the course of a trial.
The trial court had the duty to find facts in this case, to be satisfied beyond all reasonable doubt of the guilt of the applicant, or, if not, to find the applicant not guilty.
While counsel on behalf of the applicant sought to exclude the three key witnesses for the prosecution the trial court is entitled to every man’s evidence, and on the evidence to determine what is admissible or relevant, and to weigh that evidence. Walsh J. giving the judgment of the Court of Criminal Appeal in The People (D.P.P.) v. J. T. [1988] 3 Frewen 141 at 160, stated:
“Attention should also be drawn to the fact that the administration of justice itself requires that the public has a right to every man’s evidence except for those persons who are privileged in that respect by the provisions of the Constitution . . .
The exercise of the judicial power carries with it the power to compel the attendance of witnesses, the production of evidence and, a fortiori, the answering of questions by the witnesses. This is the ultimate safeguard of justice in the State, whether it be in pursuit of the guilty or in vindication of the innocent.”
I would adopt this approach. The administration of justice requires that the public has a right to every man’s evidence except for that evidence which is excluded by law or the Constitution.
For all the reasons given in this judgment I am satisfied that the evidence of Charles Bowden and Russell Warren was not excluded by law or under the Constitution. Once admitted the issue of credibility was addressed by the trial court, as was the issue of the weight of the evidence, and I would not intervene in that decision of the trial court.
Conclusion
In an ideal world there would be no need for witnesses who were in a Witness Protection Programme or who were accomplices of an accused. The development of a Witness Protection Programme is a reflection of a need arising in our times. It is a consequence of a society where there are gangs, drug trafficking, violence and death, and very significant sums of money being made from criminal activity. Many cases, such as this, could not be brought unless there was evidence from an accomplice or a person in a Witness Protection Programme. Of course, the fact that a prosecution could not proceed without evidence of a witness in a Witness Protection Programme is not determinative.
It is for the Executive or the Legislature to establish a Witness Protection Programme. The Director of Public Prosecutions having made the choice to use such a witness, it is for the courts to ensure that there is a fair trial.
There is no reason in law why the State could not establish a Witness Protection Programme. However, the terms of the Witness Protection Programme should be set out clearly for any participant. There should not be variations which may be, or be perceived to be, related to the giving of evidence. As the essence of such a programme is to protect the witness it may be conducted confidentially. Given that any such programme is to protect the witness so too by its very nature does a Witness Protection Programme give benefit to the witness and to his or her family. Such benefit has to be a factor for the trial court to consider and to distinguished from corrupt or abusive activities, including bribery. In analysing the facts of the case, the activities of members of the Garda Síochána in relation to such a Witness Protection Programme are relevant and fall to be scrutinized carefully.
There are no special rules of evidence relating to witnesses in a State Witness Protection Programme. The ordinary rules as to the admissibility of evidence apply. There is no rule excluding such evidence. The facts and circumstances have to be considered in each case. Such evidence is admissible but should be excluded if the circumstances fall below the fundamental standard of fairness. An analogy maybe drawn with evidence from an accomplice.
A warning should be given to the jury of the dangers of convicting a person on such evidence if it is not corroborated. Once the warning is given, however, it is open to the trial court to convict on the evidence of a person in a Witness Protection Programme without corroboration. It is also open to a court to determine that in all the circumstances of the case it would be appropriate to have corroborating or circumstantial evidence to support such evidence. Such an approach is cautious but it reflects concern for due process, for the presumption of innocence, and for a fair trial.
Given what happened at this trial, as set out in the transcript, and the terms of the judgment, it is quite clear that the trial court read and considered the law relating to a warning in such circumstances, and that it was aware of the dangers of convicting on such evidence without corroboration. The trial court referred at length to the circumstances of the case and the compromising factors. While it was open to the trial court to convict the applicant on the evidence of witnesses in the Witness Protection Programme without corroboration, the trial court determined that they would take a cautious approach. This was consistent with the community’s requirement of constitutional due process for all, and to guard against potential miscarriage of justice.
In conclusion, evidence may be obtained from witnesses in a State Witness Protection Programme, but such evidence is subject to the law and the Constitution. A warning should be given to the jury of the dangers of convicting on such evidence without corroboration, the terms of such a warning are suggested in paragraph 8.4 above. Once such a warning is given it is open to the trier of fact to make a finding of fact with or without corroborative evidence. Corroborative evidence should tend to implicate the accused in the commission of the offence, it should be independent of the evidence which makes corroboration desirable (though there may be exceptions arising from the circumstances of a case), and it should be credible.
For all the reasons given I would dismiss the appeal of the applicant insofar as it relates to his convictions.