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Judgment
Title:
Director of Public Prosecutions -v- Devlin
Neutral Citation:
[2012] IECCA 70
Court of Criminal Appeal Record Number:
194/11
Date of Delivery:
07/06/2012
Court:
Court of Criminal Appeal
Composition of Court:
Fennelly J., Moriarty J., Gilligan J.
Judgment by:
Fennelly J.
Status:
Approved
Result:
Allow Appeal Set Aside Conviction
Judgments by
Link to Judgment
Fennelly J.



COURT OF CRIMINAL APPEAL


CCA Record No: 194/11

Fennelly J.
Moriarty J.
Gilligan J.



BETWEEN:


THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)


RESPONDENT
V


SAMUEL DEVLIN
APPELLANT

Judgment of the Court of Criminal Appeal delivered the 6th day of July 2012 by Mr Justice Fennelly

1. The Appellant was convicted on 7th July 2011 by the Special Criminal Court of the offence of possession of an explosive substance (a “pipe bomb”) in such circumstances as to give rise to a reasonable suspicion that it was not in his possession for a lawful object contrary to s. 4 of the Explosive Substances Act, 1883 as amended by s. 15(4) of the Offences against the State (Amendment) Act, 1998. He was sentenced to a term of seven and a half years imprisonment dating from 15th October 2010, the date of his arrest.

2. He appeals to the Court against his conviction. Leave to appeal is no longer required.

3. On 15th October 2010, members of the Garda Síochána from the Special Detective Unit at Harcourt Square, Dublin were conducting an investigation into the activities of members of the IRA operating in the Waterford area. Detective Sergeant James Blackwell was in charge of a surveillance operation which led to the present prosecution. The basic facts are that the appellant was collected by a certain Sean Ryan outside Heuston Station, Dublin and driven directly to Waterford. They stopped at a filling station. The appellant was observed opening the boot of the car and looking inside. The gardaí approached and saw a rucksack, which contained a pipe bomb, inside the boot. Sean Ryan comes from Waterford. He was independently prosecuted and convicted, having pleaded guilty on arraignment.

4. All the events took place on 15th October 2010. The story begins at Heuston Station. At 5:30 pm, the appellant was seen by several members of the garda surveillance team on foot outside the main entrance to the Station. He walked in the direction of a taxi rank. A motor car, a silver Hyundai Atos registration number 06 D 45708, driven by Sean Ryan, was parked between the entrance to the station and the taxi rank. The appellant got into the passenger seat. The car drove initially toward the city, but turned back over the river along Victoria Quay and back out towards the west and ultimately the south.

5. The car was followed by no less than three unmarked garda cars. Apart from one petrol stop, it drove directly to Waterford. The appellant was at all times a passenger.

6. The car stopped for about fifteen to twenty minutes at a housing estate called May Park Village in Waterford. Although it was observed unoccupied at some point during that stop, there was no evidence of the occupants leaving or re-entering the car. It was driven out with the same two persons in it. It was driven along the Cork-Dunmore East Road for about five or six miles and turned left on to the Kilmeaden Road. It pulled into the Top filling station.

7. Detective Sergeant Blackwell saw the appellant getting out of the passenger side of the car. He went to the boot, which he opened. The Detective Sergeant decided to move in. Sean Ryan got out of the driver’s side at that point and stood there. Detective Sergeant Blackwell saw the appellant looking into the boot. He “was at something in the boot.” Detective Garda Karina Ryan also saw the appellant get out of the car and go to the boot. He pushed up the boot lid. She did not see him doing anything, but she also said that he “was at something in the boot.” She identified herself as a member of the Garda Síochána told him that she believed he was a member of the IRA. She asked him what he was doing at the boot and he would not answer. Detective Garda Alice Tierney said that she heard her asking this twice without answer.

8. Detective Garda Tierney arrived in another garda car when the boot was already open. Inside the boot, where it would clasp down, was a black rucksack. In her direct evidence, she said that the rucksack was open and that she looked into it. She saw what she believed to be a pipe bomb. She showed this to Detective Sergeant Blackwell and another member.

9. In cross-examination, Detective Garda Tierney was asked whether it was after she had searched in the rucksack that she found the pipe bomb. She answered:

      “No, the rucksack was open. It was a zip---well I think it was a zip it was open, and I just parted the sleeves, I looked in and what I saw inside I believed to be a pipe bomb.”
10. She agreed that she had “parted the two leaves at the top” of the rucksack. It was put to her that it was after she had done that and parted the two leaves at the top of the rucksack that she could “see that there was something in it that [she] believed was a pipe bomb.” So far as she could see there was nothing else in the bag.

11. The gardaí kept away from the car once the pipe bomb had been discovered. Lieutenant Clodagh McConnell, a qualified Explosive Ordinance Officer attached to Collins Barracks, Dublin was called to the scene. She arrived there with her team and examined the explosive device with the assistance of a military robot with a camera attached. Her opinion, given in evidence, was that it had all the components of a viable improvised explosive device. Those components included powder which tested positive for nitrates, nitro-esters and nitromethanes, packed tightly in the pipe bomb as well a clock and a flash bulb with two connecting wires to act as a detonator. The evidence of Lieutenant McConnell was that, if the device had functioned as intended, it would “serve [sic] considerable damage to anything in close proximity” and even its components could have “caused shrapnel and could have caused damage to person or even property.” The device was rendered safe and destroyed in a controlled explosion.

12. The evidence as to the nature of the device was not contested. It should be noted that part of it was wrapped in black insulation tape.

13. The following items were found, on search, to be on the person or in the clothing of the appellant:

      -a pair of black woollen gloves;

      -a partially used roll of black insulation tape;

      -a box cutter knife.

14. The appellant was arrested pursuant to s. 30 of the Offences against the State Act, 1939 and taken to Waterford Garda Station. He was informed that he was being arrested for membership of an unlawful organisation and for possession of explosive substances. He was there questioned after caution. Evidence was given of five interviews. Four of these took place from just before 9 am to almost 9 pm on 16th October. A fifth took place commencing at 9:39 on the following morning.

15. In the first interview, the appellant was asked where he had been the day before. His answer was:

      “I am not and have never been a member of any illegal organisation. I wasn’t and never have been in possession of any explosive substance or explosive material.”
16. He said that he did not want to answer any questions other than relating to the subject matter of his arrest. He confirmed that he was aware that the reason for his arrest was for membership of an unlawful organisation and possession of explosives, adding “both of which I deny.” In answer to further questions, he said repeatedly: “I refer to my previous answer.”

17. The appellant repeated his initial answers with only minor variations. For example he repeatedly said: “I was not and never have been in possession of explosives yesterday or any other time.”

18. In the second and third interviews, the appellant also repeated almost verbatim and subject to minor variations and on many occasions the very first answer quoted above. He was asked a number of specific questions. Asked if he had been aware that there was an explosive device in the car he said: “No.” He said that he was not aware even at the time of his questioning that there had been such a device. Asked whether he would have got into the vehicle if he had known of its presence, he said: “Definitely not.” He denied that he had any knowledge or qualification regarding explosives.

19. The gardaí prepared and arranged subsequent interviews in order to be in a position to refer to their contents at the trial of the appellant pursuant to the provisions of sections 18, 19 and 19A of the Criminal Justice Act, 1984 as inserted respectively by sections 28, 29 and 30 of the Criminal Justice Act, 2007. The object of those provisions is to permit evidence to be given at the trial of a person of, respectively, his failure or refusal to account, during garda interviews, for any “object substance or mark, or any mark on such object” (s. 18), “presence at a particular place” (s. 19) or failure “to mention any fact relied on in his… defence” (s. 19A). It was accepted at the hearing of the appeal that only s. 18 is material in this case. The appellant was invited to account for certain objects found on his person or, in the case of the pipe bomb, allegedly in his possession. No real question arose concerning his presence at any particular place and, in any event, the Special Criminal Court did not rely on that provision in its judgment. Section 19A relates only to matters which may be raised in defence, which did not occur in this case.

20. Since there is no criticism of the compliance by the gardaí with the provisions of that legislation, it is sufficient to make brief reference to those matters. Firstly, arrangements were made in advance of the interviews for the appellant to consult a solicitor in order to comply with the requirement that the accused person be “afforded a reasonable opportunity to consult a solicitor before” any failure or refusal to give an account of any of the matters mentioned in the sections. Secondly, the gardaí complied with the requirement of sections 18 and 19 that the accused person be “told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter……might be.”

21. In the context of s. 18 he was asked to account for the presence of a viable device at the Top Garage and was told that the gardaí regarded that object as evidence of his unlawful possession of it. He answered on three occasions: “I refer you to my earlier answers.”

22. He was similarly asked to account for the presence on his person, respectively, and by separate questions of the black gloves, the box cutting knife and the insulating tape. In the case of both the box cutting knife and the insulating tape he said that each item in question had been in his jacket from the last time he had worn it. In respect of each of the three items, he also said: “I refer you to my earlier answers.”

23. During closing submissions, counsel for the prosecution said that the black gloves did not form part of the prosecution case against the appellant. Counsel relied in particular on his failure to account for his presence at the location and his failure to account for the presence of the bomb within the boot of the car.

24. The Special Criminal Court delivered its judgment finding the appellant guilty on 7th July 2011. In respect of the questions addressed to the appellant in his garda interviews, the court said that he had responded in a formulaic manner. It said in particular:

      “He did not account for his presence in the car nor why he was present in the car at the Top garage. To this, and a number of other questions, the answer he gave was "I refer you to my earlier answers." He gave no other account. The accused was given the opportunity of accounting for the explosive device in a rucksack on a number of occasions but, that Court is satisfied, failed to give any adequate account."
25. The court does not appear, in this passage, to have taken account of the appellant’s specific denial that he was aware that there was any explosive device in the car or of his statement that he would definitely not have got into the vehicle if he had known of its presence. Those answers were given in the earlier interview, prior to the Garda introduction of sections 18 and 19 of the Criminal Justice Act, 1984 (As amended). However, his invitation in the later interviews to the gardaí that they refer to his earlier answers must in context, be taken as referring to the answer is just mentioned.

26. Later in its judgment, the court cited the well-known passage from the judgement of Davitt P in Minister for Posts and Telegraphs v Campbell [1966] I.R. 69 at page 73:

      “In my opinion a person cannot, in the context of a criminal case, be properly said to keep or have possession of an article unless he has control of it either personally or by someone else. He cannot be said to have actual possession of it unless he personally can exercise physical control over it; and he cannot be said to have constructive possession of it unless it is in the actual possession of some other person over whom he has control so that it would be available to him if and when he wanted it. Normally speaking, a person can properly be said to be in possession of the contents of his own dwelling-house, but only if he is aware of what it contains. He cannot properly be said to be in control or possession of something of whose existence and presence he has no knowledge.”
27. The crucial finding of the Special Criminal Court was as follows:
      “The Court has had regard to the following issues in its consideration. First, the presence of the accused in the car, second, the contents of the rucksack in the boot of the car in which, as the Court is satisfied, was an explosive device, that is to say an improvised explosive device or, put simply, a pipe bomb. Third, the fact that when the accused was apprehended he was seen by members of An Garda Síochána with his hands in the boot of the car at the Top petrol station. Seen in isolation, these might not be sufficient to satisfy the requirements of proof beyond a reasonable doubt. However the Court attaches particular significance to the items in evidence which were found on the accused, specifically the box cutting knife, the insulating tape and the gloves. Each of these items is, in the view of the Court, capable of being seen as corroboration that the accused had knowledge of and was in actual possession of the pipe bomb. There is further corroboration, however, in this connection the formulaic answers of the accused to the questions which were put to him and from which inferences may be drawn are particularly important. These items establish an evidential chain linking the bomb to the accused. The failure to account for having these items on his person, when taken together with the other facts is, in the view of the Court, consistent only with it, that is to say that the accused had actual knowledge of what was in the bag and had knowing possession of it. Clearly a box cutting knife could be used for the purpose of cutting insulating tape. The insulating tape was to be found not only on the accused’s person but on the pipe bomb. Perhaps taken individually, one or more of these facts might be capable of an innocent explanation. However, taken collectively the facts are, in the view of the Court, all coercive evidence as to the guilt of the accused. In the circumstances therefore, the Court must find the accused guilty of the charge. At all stages, there Court had reminded itself of the presumption of innocence and the necessity that each aspect of the prosecution case be proved beyond a reasonable doubt. That Court considered whether there may be any other innocent explanation for the conduct and activity of the accused. It is unable to conclude that any such innocent explanation is available having regard to the totality of evidence and each part of it, all of which has been proved beyond reasonable doubt."
Submissions on appeal

28. While a large number of grounds of appeal have been advanced, they may be effectively summarised as follows:

      1. The court was in error in finding that it had been proved that the appellant to have had the pipe bomb in his possession in accordance with the standard laid down in Minister for Posts and Telegraphs v Campbell, cited above. At the hearing of the appeal, counsel drew particular attention to the answer given by Detective Garda Tierney in cross-examination, which showed that the pipe bomb was not visible unless the sleeves of the rucksack were turned back.

      2. The court was in error in holding that inferences should be drawn from the failure of the appellant to account for the presence of the pipe bomb in the boot of the car when he had repeatedly throughout the course of the interviews denied knowledge of the pipe bomb.

      3. The court was in error in placing reliance on the failure of the appellant to account for the presence on his person respectively of the black woollen gloves, the box cutting knife and the insulating tape. The prosecution did not rely on the first. There was no evidence to link either the second or the third item with the pipe bomb. In particular, there was no evidence that the insulating tape found in the pocket of the accused and that found on the pipe bomb were even of the same type. These items were not, in any event, capable of constituting corroboration in the sense mentioned in the decision of the Supreme Court in Director of Public Prosecutions v Gilligan [2006] 1 IR 107.

29. The respondent submits that the general evidence and the circumstances of this case were such as to have permitted the trial court to find as a fact that the appellant had been in possession of the pipe bomb at the Top garage, but acknowledges that the court stated that these circumstances might not taken in isolation be sufficient to prove the case beyond reasonable doubt. The prosecution then submits that that the trial court acted appropriately in drawing inferences of guilt from the manner in which the appellant answered the questions put to him in the garda interviews. It is submitted, in particular, that the appellant failed to answer many of the questions relating to the pipe bomb while being interviewed.

The Decision of the Court

30. It was the function of the Special Criminal Court to decide whether the evidence which it heard was sufficiently strong to satisfy it beyond reasonable doubt of the guilt of the appellant. Where there is sufficient evidence, in the case of jury trial, to go to a jury and, in a case before the Special Criminal Court, to resist an application for a direction that there is no case to answer, the ultimate verdict on that evidence is exclusively a matter for the court of trial. Where there is a jury, this Court is limited to considering the application of this principle in the light of the simple and unexplained guilty verdict. In the case of the Special Criminal Court, on the other hand, this Court must examine the decision in the light of the reasons given by the court of trial for its finding of guilt. If that reasoning is defective in any way, such as not to sustain the finding of guilt, it is not open to this court to substitute its own finding on a different or alternative analysis of the facts. If it considers that the reasons given by the court of trial for a finding of guilt beyond reasonable doubt are insufficient, this Court cannot re-evaluate the evidence and bring in a finding based on an alternative interpretation.

31. The decision of the Special Criminal Court in this case, as the respondent acknowledges, falls into two parts. The first part consists of the evaluation of the evidence of the Garda surveillance operation, i.e., the Garda observations of the behaviour of the appellant on the afternoon and evening of 15th October 2010. The entire circumstances surrounding the appellant’s being driven from Dublin to Waterford on that day but most especially the observations of the gardaí of what he did at the boot of the car at the Top garage had to be considered. They had to be sufficient, either on their own, or in combination with the evidence from the interviews, to satisfy the court beyond reasonable doubt that the appellant had the pipe bomb in his possession. The second part of the decision concerns the inferences drawn from the answers of the appellant.

32. The Special Criminal Court was clearly of the view that the first part of the case was not sufficient, “seen in isolation,” to satisfy it beyond reasonable doubt of the guilt of the appellant. In addition, it is notable that the court made only the briefest of reference to the most crucial part of the Garda evidence. It recalled that the appellant had been “seen by members of the Garda Síochána with his hands in the boot of the car…” It did not address the crucially important distinction between the direct evidence of Detective Garda Tierney, from which it would have appeared that it was possible to see the pipe bomb merely on looking into the boot of the car, and her concession in cross-examination that she had to part the sleeves of the rucksack before she could do so. It is not clear, therefore, to this Court what precise view the Special Criminal Court took on this point. While it would have been possible for the court to draw conclusions from the evidence that the appellant was “at something” in the boot, the court did not do so. Taking the view most favourable to the appellant, this Court has to assume that the Court accepted that the pipe bomb could not be seen without parting the sleeves of the rucksack and that, therefore, it was not visible to the appellant when he opened the boot lid. Furthermore, the Court made no reference to the refusal of the appellant on two occasions, at the scene, to answer questions from Garda Karina Ryan as to what he had been doing at the rear of the car.

33. Thus the court found that the appellant had his hands in the boot of the car, but did not find that he was handling the rucksack or pipe bomb, that the pipe bomb was visible. In short, it did not find that he knew the pipe bomb was there.

34. It follows that the conclusion of the Special Criminal Court was vitally dependent upon the view it took of the answers given by the appellant during the Garda interviews. Sect 18 of the Act of 1984 as inserted by the Act of 2007 provides, omitting parts not material to the present appeal, as follows:

      18.— (1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused—

      (a) at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the offence, or……

      was requested by the member to account for any object, substance or mark, or any mark on any such object, that was—

      (i) on his or her person,

      (ii) in or on his or her clothing or footwear,

      (iii) otherwise in his or her possession, or

      (iv) in any place in which he or she was during any specified period,

      and which the member reasonably believes may be attributable to the participation of the accused in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, charged or informed, as the case may be, then, the court, in determining whether a charge should be dismissed under Part IA of the Criminal Procedure Act 1967 or whether there is a case to answer and the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge) may draw such inferences from the failure or refusal as appear proper; and the failure or refusal may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure or refusal is material.

      (2) A person shall not be convicted of an offence solely or mainly on an inference drawn from a failure or refusal to account for a matter to which subsection (1) applies.

      (3) Subsection (1) shall not have effect unless—

      (a) the accused was told in ordinary language when being questioned, charged or informed, as the case may be, what the effect of the failure or refusal to account for a matter to which that subsection applies might be, and

      (b) the accused was afforded a reasonable opportunity to consult a solicitor before such failure or refusal occurred.

      ……………………………………

      (5) The court (or, subject to the judge’s directions, the jury) shall, for the purposes of drawing an inference under this section, have regard to whenever, if appropriate, the account of the matter concerned was first given by the accused.

      (6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.

      ……………………………………….

35. The court’s judgment refers only to three items, the black woollen gloves, the box cutting knife and the insulating tape. The court did not refer, when reaching its conclusion, to the answers given by the appellant when he was asked to account for the presence of the pipe bomb in the car. If it had done so, it would no doubt have been required to interpret them by adopting the interpretation most favourable to the appellant and thus take account of his repeated invitation to the gardaí that they should consider his earlier answers, which it might have interpreted as including an express denial that he knew there was a pipe bomb in the car. In any event, the court made no reference to this part of the interviews and it must be assumed that those answers played no part in persuading the court of the guilt of the appellant.

36. There remains, therefore, the references to the three items already mentioned. The prosecution accepted in closing submissions at the trial that the black gloves did not form part of the case against the appellant, though it subjected this concession to the rather vague qualification that they formed part of the evidence in the case. In any event, it was not suggested that these gloves proved, in any particular way, that the pipe bomb had been in the possession of the appellant. As already pointed out, the appellant did in fact offer an explanation in relation to the other two items, the box-cutting knife and the insulating tape. He said that both these items had been in his pocket the last time he had worn that jacket. This may or may not be a satisfactory explanation, but it was an answer. It does not amount to a failure or refusal to account.

37. In any event, it is not clear from the decision of the Special Criminal Court in what way it believed that these items had actually been used. The statement that the knife “could be used for the purpose of cutting insulating tape” is speculative and clearly insufficient. Equally, the presence of the insulating tape is obviously capable of any number of possible innocent explanations. There was no evidence to support the statement that “the insulating tape was to be found not only on the accused’s person but on the pipe bomb.” There was no even evidence that the tapes were of the same kind. Indeed there was no forensic evidence linking the appellant to the pipe bomb.

38. In view of the fact that the Special Criminal Court was not satisfied beyond reasonable doubt that the pipe bomb was in the possession of the appellant based on observations of his activity at the boot of the car, the decision came to be crucially dependent on the inferences drawn pursuant to s. 18 of the Act of 1984. It is not at all clear, on the evidence, that the appellant failed to account for the most important two items. Section 18, subject to observation of the procedures it lays down, permits evidence to be given of the “failure or refusal” of a person to account for, inter alia, an object that was “ in or on his or her clothing and footwear” or “ otherwise in his or her possession…” That provision does not apply where an account of any kind has been given.

39. In any event, the failure or refusal to account, as the case may be, must be such as is “capable of amounting to… corroboration of any evidence in relation to which the failure or refusal is material.” As Denham J, as she then was, stated in her judgment in Director of Public Prosecutions v Gilligan, already cited, at page 140, the evidence must be such that it “tends to implicate the accused in the commission of the offence.” It must, she added, “establish a link which tends to prove that the accused person committed the offence.” In the view of the Court, the evidence in question, for the reasons given, in this case falls short of meeting that requirement.

40. For all these reasons the Court will allow the appeal and set aside the conviction and sentence of the appellant.











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