Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Joseph Fee

Neutral Citation: [2006] IECCA 102


Court of Criminal Appeal Record Number: 242/04

Date of Delivery: 13 July 2006

Court: Court of Criminal Appeal

36


COURT OF CRIMINAL APPEAL
242/04
Macken, J.
Budd, J.
White, J.
Between:
The People at the Suit of the Director
of Public Prosecutions
-and-
Joseph Fee
Applicant

Judgment of the Court delivered on the 13th day of July 2006 by Macken J.
The Applicant appeared before the Special Criminal Court, together with several co accused, arising out of events which occurred in the month of June 2003, in Co. Louth. He was charged with offences involving possession of explosive substances, contrary to the Explosive Substances Act 1883, as substituted and amended by subsequent legislation. The trial took place before that court (O’Donovan J., J. Matthews, and Malone D.J.) and lasted eleven days. The Applicant was found guilty of two charges, and was sentenced on the 8th December 2004 to 7 years in respect of the charge of possession of explosive substances contrary to s.4, and to 10 years in respect of the charge of possession of explosive substances contrary to s.3, both of the above Act as amended, the sentences to run concurrently. As against those sentences, the Director of Public Prosecutions has applied to this court pursuant to S. 2 of the Criminal Justice Act 1993 Act, (“the Act of 1993” ) alleging that the sentences imposed were unduly lenient. The Applicant has also appealed against severity of sentence. Having regard to the fact that the Applicant appeals his conviction, the applicant’s appeal against sentence as well as the application of the Director are deferred, and may if appropriate, be dealt with at a later date.
The Background Facts
The background facts are of particular relevance to set in context the grounds relied on by the Applicant in this application, as well as the response of the Respondent. According to the evidence adduced, admitted, or proved, as synopsized in the submissions of the Applicant as well as those of the Respondent, the following are the relevant background matters:
1 The charges arose out of a garda operation which took place in County Louth in the month of June 2003. This involved members of the Emergency Response Unit, the Crime and Intelligence Unit and the Local Garda Siochana, all under the command of an Assistant Commissioner.
2 This garda operation included the surveillance of certain people, including the Applicant, over two days, and centred around two farms, the first one being off the Dundalk to Iniskeen Road and the second being located about eight miles away to the south. The first farm is known as Thornfield, (“the Thornfield farm”) and the second as Tallanstown (“the Tallanstown farm”). The garda surveillance and operation also covered the homes of certain people, including that of the Applicant, as well as the public roads in the area.
3 A chronology of events surrounding the surveillance, as established in evidence, is as follows:
(a) The garda surveillance operation took place over a two day period on the 12th and 13th of June, 2003.
(b) On the morning of the 12th June 2003 two co-accused hired a cement mixer, which they drove to the Applicant’s home and left there.
(c) At lunch time on the same day the Applicant met a man, Terence Cassidy, in a pub called the Valley Lodge. There the Applicant requested Terence Cassidy to purchase sugar. The Applicant and Terence Cassidy drove to a Cash and Carry outlet where several bags of icing sugar were purchased. Terence Cassidy put the charges for the sugar on an account which he had at that outlet. The Applicant took the bags of sugar.
(d) On the morning of the 13th June 2003, the Applicant drove his vehicle, a white Citroen van from his home at Newtownbalregan, close to Dundalk, to the Tallanstown farm. A co-accused, Seamus McKenna, was his passenger. Shortly afterwards the Applicant was seen driving his white Citroen van, alone, along the public road leading to the Thornfield farm, followed by a stolen white Peugeot van.
(e) On that morning also, a meeting took place on the Newry Road when the Applicant met another two co-accused, Gregory Trainor and Eamon Mathews.
(f) On the same morning the Applicant requested Terence Cassidy, to purchase seven more bags of icing sugar. This was done and the sugar was brought by Terence Cassidy to the Applicant’s home at about 12.30 pm on that day. The Applicant arrived and met Terence Cassidy there.
(g) At about 12.45 pm on the 13th June 2003 a Detective Garda Ryan commenced surveillance in a field opposite the rear of the Thornfield farm. He heard music coming from a shed at the back of the Thornfield farm, and he saw the white Peugeot van parked with its rear inside the shed. He remained in radio communication with colleagues in the vicinity of the Thornfield farm.
(h) At 1.15 pm on that day he saw the Applicant arriving by vehicle at the same shed at the back of the Thornfield farm, speaking with his co-accused Seamus McKenna and Gregory Trainor at the shed which he left shortly afterwards.
(i) At 1.30 pm on that day Detective Garda Ryan saw the Applicant return in his vehicle to the shed at the back of the Thornfield farm and drive away again a short time later.
(j) Immediately afterwards members of An Garda Siochana moved in on the Thornfield farm. There they found two co-accused, Gregory Trainor and Seamus McKenna, in the process of operating a cement mixer containing a brown substance, later analysed as being ammonium nitrate (originating from crushed fertiliser) and icing sugar. At the shed also was the white Peugeot van previously mentioned, which was found to contain a large canvas bag of brown powder. This bag’s contents, on analysis, proved to have the same composition as the material found in the cement mixer. There were also a number of buckets containing the same substance, and a number of fertiliser bags, some opened and some unopened. There were also four unopened 3 kilo bags of icing sugar as well as nine 3 kilo empty icing sugar bags.
(k) The combined weight of the explosives found at the Thornfield farm was 500 kilos.
(l) Just as this raid was taking place at the Thornfield farm, gardaí intercepted the Applicant on the road close to the Thornfield farm driving his white Citroen van. He attempted to evade capture but was stopped and arrested. In this van was found a bucket containing a brown substance, later analysed as consisting of ammonium nitrate and sucrose, as well as some corn husks.
(m) At 2.45 pm on the 13th June 2003 gardaí from the same surveillance operation then searched the Tallanstown farm and in a shed on this farm found a corn grinder and a quantity of fertiliser bags. In the chutes of the corn grinder there was a brown powder which, when analysed, was found to consist of ammonium nitrate and sucrose. This, on analysis had the same composition as the substance found in the Applicant’s Citroen van.
The evidence of both Terence Cassidy and of Detective Garda Ryan was challenged by the Applicant, and so too were the conclusions or inferences sought to be drawn from facts proved or established arising from the above chronology. In the course of the trial the Applicant, as is his right, did not give evidence.
Grounds of Appeal
The lengthy series of grounds upon which this application for leave to appeal is based has been helpfully broken down by counsel for the Applicant into the following:
1 The court’s treatment of the evidence of Terence Cassidy.
2 The failure to adopt fair procedures concerning evidence of clothing allegedly worn by the Applicant;
3 The preservation of the scene at which the Applicant was arrested;
4 The admission of hearsay evidence;
5 The failure to adopt a “Casey (No.2)” type warning in respect of identification.
6 The absence of proper proof of the required intent within the provisions of s.3 of the Act of 1883, as amended.
To put these grounds as well as the arguments of both parties into context, it is important also to set out the case made by the prosecution against the Applicant, which proceeded on the basis of the claimed cumulative effect against him of separate pieces of circumstantial and/or supporting evidence which, subject to what is said below, were accepted by the trial court as having been established, and which included the following:
A The delivery of the cement mixer found at the Thornfield farm to the Applicant’s home by two co-accused Eamon Mathews and Seamus McKenna on the 12th June 2003. The prosecution adduced evidence that this cement mixer had been hired by Eamon Mathews and Seamus McKenna at Dromad Hire in Dundalk on the morning of 12th June 2003.
B The purchase of thirteen 3 kg bags of icing sugar on behalf of the Applicant, who twice requested Terence Cassidy to purchase sugar, on the 12th and then again on the 13th June 2003. The sugar purchased at his request, in terms of bags, corresponded precisely with the number of full and empty sugar bags found at the Thornfield farm on the 13th June 2003.
C The Applicant’s involvement in a transport “convoy”. Between 8.40 am and 9.05 am on the 13th June the Applicant drove his white Citroen van from his home, with a co-accused Seamus McKenna as a passenger, to the Tallanstown farm. The Applicant was then seen driving alone in the Citroen van from the Tallanstown farm followed by the stolen white Peugeot, in which explosives were ultimately found when the gardaí raided the Thornfield farm.
D The Applicant was sighted on the Newry Road between 8.40 am and 9.05 am on the 13th June 2003, where he met with and was in the company of, two co-accused, Seamus McKenna and Eamon Mathews, as well as another person.
E The Applicant was present in the shed at the Thornfield farm on two occasions shortly prior to the raid there and to his arrest, having been sighted between 1 pm and 1.30 pm on the 13th June, 2003 by Detective Garda Ryan who had taken up position in a field behind the Thornfield Farm. The Applicant first arrived at 1.15 pm, got out of his Citroen van and went into the shed and spoke with his co-accused, Seamus McKenna and Gregory Trainor. He then came out of the shed, got back into his van and drove away. At about 1.30 pm, the Applicant returned in the same van to the Thornfield farm, parked the van at the same shed, got out and went up into the shed, and then came out and left again in the same van.
F When the Applicant was stopped in his Citroen van on the public road close to the Thornfield farm, shortly after the last event, an explosive substance was found in a bucket in the back of his van, consisting of ammonium nitrate and sucrose being the same substance on analysis, as that later found at the Tallanstown farm on the same day.
The trial court accepted that these matters were sufficiently established to permit the court to conclude that, taken cumulatively, they proved that the Applicant was guilty of possession of explosive substances.
First Ground: The treatment of the evidence of Terence Cassidy
The first ground of appeal concerns the acceptance by the trial court of Terence Cassidy’s evidence as to the purchase of sugar. This is divided into several sections. It is useful to set out briefly a synopsis of the evidence given by Terence Cassidy.
1. As to the purchase of the first batch of sugar on the 12th June 2003, Terence Cassidy said that while having lunch at a pub/restaurant, the Valley Lodge, the Applicant joined him and in the course of conversation said he needed a couple of bags of sugar. Terence Cassidy suggested they could get this at a Cash and Carry outlet in Carrickmacross. They went there in his car. He purchased six 3 kilo bags of icing sugar which were put in the boot of the car and the charge put on Terence Cassidy’s account. He said this was because he already owed the Applicant money for a job the Applicant had previously done for him. Later they had a cup of coffee together and the Applicant took the sugar and left.
2. On the next day, the 13th June 2003, Terence Cassidy purchased supplies on his own behalf at the same outlet. He noticed a missed phone call from the Applicant on his mobile phone, and returned the call. The Applicant said he needed more sugar. Terence Cassidy, as a result of the phone call, went back to the Cash and Carry outlet and bought seven more 3 kilo bags of icing sugar. He drove in his jeep to the Applicant’s house and waited for him to arrive, and then he had a cup of coffee there with the Applicant and his girlfriend. When he left, the sugar was gone from the jeep, and he said that he presumed the Applicant had taken it. This was around 12.30 p.m.
There was also some evidence of a discussion about till rolls, but for the purpose of this part of the judgment there is no need to set this out in further detail.
Firstly, Mr. Burns, Senior Counsel for the Applicant submits that the trial court erred in treating Terence Cassidy’s evidence as being either credible or reliable, in particular having regard to its own finding that he was neither an impressive nor a consistent witness. On the Applicant’s argument, the evidence that Terence Cassidy had purchased the sugar, and that the sugar had been used at the Thornfield farm, should have been construed by the trial court as indicative of his, Terence Cassidy’s, own involvement in the manufacture of the explosive mix. Further, if viewed objectively, the evidence of Terence Cassidy concerning the purchase of the sugar was accepted by him in cross-examination as putting him “in the frame”, meaning that it put him squarely within the events in question. He also in cross-examination conceded that his statement to the gardaí that he had not asked what the sugar was for helped him “get off the hook”. It had been asserted on behalf of the Applicant in the course of cross-examination at the trial, that he had never asked Terence Cassidy to purchase any sugar, and that the witness had invented this scenario so as to protect himself.
It is also argued on behalf of the Applicant that the above examples from the evidence, or those from the statements made by Terence Cassidy to gardaí, establish clearly that he was both an unreliable and self-contradictory witness, that his evidence was both inconsistent and mistaken, and that it was self-serving. Further, given the pivotal importance of his evidence and the reliance placed on his evidence by the prosecution, and given also that the trial court had itself accepted he was neither an impressive nor a consistent witness, his evidence should not have been accepted at all, and the trial court had erred in relying on it.
Senior Counsel on behalf of the Respondent, Mr. Birmingham, accepts that Terence Cassidy was a significant prosecution witness, since he created the link between the Applicant and the thirteen bags of sugar found at the Thornfield farm. According to his argument, it is necessary however to place and assess Terence Cassidy’s evidence in the context of other factual matters concerning him. It had been established in evidence that he owns or operates a filling station and shop, jointly with his father, and had done so for several years, at Carrickmacross, Co. Monaghan, and that the Applicant had carried out repairs and maintenance on petrol pumps at those premises, as an engineer for the company in charge of the pumps. The Applicant and Terence Cassidy had met, by chance, on a skiing holiday and had socialized together during that time, as well as playing indoor soccer together from time to time, and they were therefore friends of a type at the time of the events in issue.
Counsel further argues that this witness’s account of events was independently supported by evidence consisting of several matters which were adduced or proved: a video from the pub which showed him meeting the Applicant at lunchtime on the 12th June 2003 as he had said he did: evidence of the owners of the Valley Lodge pub that they had seen the Applicant meeting the witness at that time: evidence from witnesses at the Cash and Carry outlet, as well as the receipts in respect of the purchase of the sugar there, and the purchase of other items, which confirmed the content and timing of the various sales, and the fact that Terence Cassidy was in the company of another man on the first occasion when sugar was bought: a sighting by members of the Garda Siochana of the witness’s jeep at the Applicant’s house at 12.30 p.m. on the 13th June 2003 when the witness said he delivered the second batch of sugar to him: and finally, the fact that the volume of sugar the witness described as having been purchased at the Applicant’s request, was identical to the number of sugar bags, empty and/or unopened, found in the shed at the Thornfield farm on the same day during the raid by the gardaí.
It is argued on behalf of the Respondent that, although counsel for the Applicant cross-examined Terence Cassidy on several material and minor matters, or on alleged inconsistencies, nevertheless the witness had not wavered in his evidence that the Applicant asked him to purchase the sugar and that he had done so. Further the trial court was best placed to assess the credibility of the witness by reference to the manner in which he gave evidence and having regard to his demeanour in the witness box. The trial court had considered his evidence carefully as was clear from the judgment. The Applicant’s legal team had had a full opportunity to carry out a lengthy cross-examination of the witness, and had done so. In the circumstances the trial court’s conclusion as to Mr. Cassidy’s credibility on the issue of the purchase of sugar should be upheld.
Secondly, under this ground, it is argued by the Applicant that the trial court ought to have treated Terence Cassidy as being an accomplice, given his involvement in the purchase of the sugar and the fact that his evidence was tainted by his interest, which had been accepted by him, in shifting responsibility for the sugar purchased to a third party, namely the Applicant. It had been known to Terence Cassidy, prior to making his statement to the gardaí, that the Applicant had himself been arrested and was already “in the frame”. Counsel for the Applicant relied, inter alia, on the decision in People (AG) v Carney [1955] I.R. 324 as to who constitutes an accomplice. It followed that since Terence Cassidy was an accomplice, or his evidence ought to have been treated as if he were an accomplice, the trial court erred in failing to give itself an appropriate warning in that regard.
As to this argument, Counsel for the Respondent contends that, while the issue of Terence Cassidy’s credibility was of concern to the trial court, and while his evidence was very important, he was simply not an accomplice and his evidence did not require to be considered or dealt with as if he were. There was no link whatsoever between Terence Cassidy and the other members of the bomb-making operation and none had been suggested. If the trial court had found that the Applicant had not asked Terence Cassidy to purchase the sugar, there would still have been no activities on his part to form a basis for the court to conclude that the witness himself was actually involved in the criminal enterprise.
Finally, under this first ground, it is submitted on behalf of the Applicant that the trial court erred in considering Terence Cassidy’s evidence as having been corroborated. Counsel submits that a requirement for corroboration dictates that where there is potentially unreliable evidence against an accused, independent evidence which implicates the accused in the commission of the offence must be adduced, relying on the judgment in the case of A.G. v Levison [1932] I.R. 158, in support of the argument that corroboration cannot be constituted by evidence which merely supports evidence of a prosecution witness, but must instead expressly tend to incriminate an accused. On this argument, Terence Cassidy’s purchase of quantities of sugar did not in any way implicate the Applicant. Nor did the fact that someone appeared to have accompanied Terence Cassidy to the Cash and Carry outlet constitute corroboration, in the absence of a definitive physical description or identification of the Applicant. It was, in the circumstances, exceedingly dangerous and wrong for the trial court to have relied upon any of this evidence as tending to implicate the Applicant.
As to this argument, counsel for the Respondent submits firstly, that there was specific corroboration of the sighting of Terence Cassidy’s jeep at the Applicant’s home at 12.30 p.m. on the 13th June 2003 when Terence Cassidy had said he delivered the sugar. As concerns the other items of evidence, even if they do not constitute corroboration in the strict legal sense, they nevertheless support essential aspects of Terence Cassidy’s evidence. Corroboration in the strict legal sense was not required as a matter of law in the situation the trial court was considering. The importance of the evidence accepted by the court lay in the fact that this supported the witness’s credibility, a matter which cannot be disputed, and the trial court was justified in accepting these elements of support in reaching its conclusion that the witness, Terence Cassidy, was actually telling the truth on the key issue of the purchase of the sugar. The Court’s assessment of the credibility of the witness was assisted by the fact that many aspects of his account were confirmed by independent proof.
Conclusions of the Court on the evidence of Terence Cassidy
Firstly, as to the contention that the trial court erred in treating his evidence as credible and reliable, and the related contention that it failed to have regard to its own finding that he was neither an impressive nor a consistent witness, there is no doubt but that Terence Cassidy was, at times, both unimpressive and inconsistent, as the trial court itself stated. . Indeed, the witness was cross-examined on several aspects of his evidence with a view to establishing that very fact. The trial court having found and stated this, clearly its members were aware, alert and cognisant of this situation. As for the inconsistencies remarked upon, some of these were of a very minor nature and of little material relevance in the course of the trial. As to others which might be considered more relevant, the trial court recognised and accepted that there were such inconsistencies and scrutinised the witness’s evidence very carefully so as to be satisfied that it could safely rely on any part of it. This is clear from the following extract of the trial court’s judgment:
“… the case for the prosecution against each accused was that they were part of a joint enterprise, an enterprise which included Gregory Trainor and Seamus McKenna, both of whom had been caught by members of the Garda Siochana in the manufacture of bomb making equipment, and of Gerard Sweeney on whose property an explosive substance had been found and that each and every one of those persons aided and abetted one another in the commission of the offences with which both accused herein are charged.
Insofar as Mr. Fee was concerned, the prosecution pointed to the following facts, namely:
(a) that on the day prior to the discovery of the bomb making operation at the farmyard at Thornfield, the cement mixer, which was used in the course of that operation, was delivered to Mr. Fee’s home. The reasonable inference being that he was aware of the purpose for which it was intended.
(b) That on two occasions on the 12th June 2003 and on the 13th June 2003, Mr. Fee had requested Terry Cassidy to purchase icing sugar on his behalf. In this regard, the court accepts that Mr. Cassidy was neither an impressive nor a consistent witness. Nevertheless, given that his evidence was corroborated in several important respects, namely, that he did in fact purchase 13 three kilo bags of icing sugar on the 12th and 13th June 2003, quantities of icing sugar which he had never previously been known to purchase; and that on the first occasion upon which he had purchased that sugar he was accompanied by a man. While Mr. Cassidy identified that man as Mr. Joseph Fee and there was evidence that on the occasion on which Mr. Cassidy had first purchased the icing sugar, he was in fact accompanied by a man, there was no corroboration of Mr. Cassidy’s identification.
That at 11.48 a.m. on the 13th June 2003 Mr. Cassidy had telephoned Mr. Fee and later on the same day he was seen to have visited Mr. Fee and that 13 bags of icing sugar, four full and nine empty, were found at the scene of the bomb making operation at the farmyard at Thornfield, a place which Mr. Cassidy was never shown to have visited, whereas it was established that Mr. Fee had visited the said farm on several occasions on the 13th June 2003.
In those circumstances, the Court was satisfied that Mr. Cassidy was a credible witness insofar as the basic premise of his evidence was concerned. In that regard, the Court was of the view that the inconsistencies of Mr. Cassidy’s evidence were not sufficient to render him an unreliable witness insofar as every aspect of his evidence is concerned.”
This extract establishes clearly that the trial court was more than alert to the inconsistencies in the evidence of Terence Cassidy.
The trial court was also conscious of the fact that, at least insofar as concerns identification of the Applicant on the 12th June 2003 at the Cash and Carry outlet, there was no corroboration of that identification of the Applicant. However, it is also clear from the judgment that the trial court was not looking at the supporting evidence, which it accepted as having been established, with a view to seeing whether it tended to implicate the Applicant in the offences for which he was charged, in the formal sense of corroboration. Rather it was assessing, in so far as the evidence of Terence Cassidy was concerned, whether his version of events was supported in some way by other evidence, such as would enable the court to come to a view as to whether he was a sufficiently credible witness to allow it accept his basic story, namely, that he was asked by the Applicant to buy the sugar, rather than to reject his tale. Viewed in that sense, the trial court accepted that the several items of evidence set out earlier in this judgment were supportive of his credibility in respect of the core of his story as to the purchase of the sugar on the two dates in question. The trial court was entitled, in assessing that credibility, to analyse and assess the weight, if any, it could safely attach to any evidence adduced affecting that credibility, and to come to a reasoned view on the same, so as to permit the trial court to accept that the evidence as to the purchase of sugar at the request of the Applicant was established beyond reasonable doubt. It is not contended on behalf of the Applicant that the trial court breached any principle or rule of law prohibiting such an approach to the assessment of the credibility of the witness.
Having considered the entire of his evidence, the careful manner in which the court analysed this, and its categorisation of that evidence, this court is satisfied that, in accepting that the witness did not in fact waver in his basic contention that the Applicant had asked him to purchase the sugar and that he had done so, the trial court did not err in accepting that part of his evidence as being capable of being relied upon, despite the inconsistencies contended for or accepted by the Court as existing in respect of other elements of his evidence.
As to the contention that he was an accomplice, taking into account the foregoing analysis, the evidence did not establish that the witness Terence Cassidy was an accomplice, or that his evidence should have been treated as if he were such an accomplice. The ingredients necessary for a person to fall in to the category of an accomplice were explained in Carney’s case as being that he was involved in the crimes under investigation either as principal or accessory. The Applicant has not established that the witness was an accomplice, or that such part of his evidence relating to the purchase of sugar ought to be treated as evidence being subject to the taint of being that of an accomplice. Nor is any convincing argument made on the part of the Applicant to counter that made by the Respondent, namely, that if the court did not accept that the Applicant had asked the witness to purchase sugar, there could still be no suggestion, and there was no evidence, that the witness was involved or engaged in any way in the bomb making venture with any of the other persons charged.
In the foregoing circumstances, the arguments as to his evidence requiring to be corroborated do not arise in respect of the evidence of Terence Cassidy.
This court finds that the Applicant’s complaints arising out of the manner in which the trial court treated the evidence of Terence Cassidy are not supported by a proper review of the judgment, or of the evidence tendered by him and by others in the course of the trial. The court refers in particular to the fact that several aspects of Terence Cassidy’s evidence were supported by evidence adduced on behalf of the prosecution from independent witnesses, including, for example, the video evidence as well as oral evidence as to his meeting the Applicant, when and where he did so – namely the Valley Lodge pub on the 12th June 2003; evidence that he had in fact purchased bags of sugar in the quantities he said he did, when he said he did, on two occasions, namely on the 12th and 13th June and from where he said he did, namely at a Cash and Carry outlet; and that he was accompanied by another person on the first occasion, as he had said he was; evidence that his jeep had been seen at the Applicant’s home at approximately 12.30 p.m. on the 13th June 2003 when he said he had delivered the second amount of sugar; evidence that the amount of sugar which he said he had been asked to purchase was found at the Thornfield farm when it was raided on the 13th June 2003.
All these matters adduced or proved in evidence, have to be considered with the established fact that the Applicant, when arrested close to the Thornfield farm, was found to have in his car a bucket of material which, when analysed, was found to be an explosive substance similar to that subsequently found at the Tallanstown farm, which farm it was also established the Applicant had visited on the morning of the 13th June 2003 with one of his co-accused. This was not therefore a case in which the only evidence upon which the court convicted the Applicant was that of Terence Cassidy. In these circumstances, the trial court did not err in law in the manner in which it treated the evidence of Terence Cassidy on any of the grounds raised, and the application for leave to appeal against conviction on this first ground is refused.
The Second Ground: Failure to adopt fair procedures
The second ground of appeal alleges that the trial court failed to adopt fair procedures in relation to specific evidence. This argument is based on the manner of use of certain clothing said by the prosecution to have been worn by the Applicant on the occasion of the events in issue in the trial, and concerns particularly the evidence of Detective Garda Ryan in that regard.
According to this argument, Detective Garda Ryan gave evidence of the Applicant wearing black or dark clothing during his surveillance of him, on the 13th June 2003 when in fact it was accepted in evidence that he was wearing a red and white check shirt when stopped by gardaí and arrested a short time later. Detective Garda Ryan was challenged during the trial in respect of his evidence of identification of the Applicant on the 13th June 2003, and one of the bases upon which he was challenged concerned his evidence that the Applicant was wearing black clothes, whereas a short time later he was found to be wearing the aforesaid check shirt.
The trial court concluded that this could be explained by the fact that a dark navy garment was found in the Applicant’s vehicle and that the Applicant could have been wearing this at the time of the sighting by Detective Garda Ryan a short time previously, and that the latter might have mistaken the dark navy blue garment as being black. According to Counsel for the Applicant, such a theory was never suggested by Detective Garda Ryan nor by the prosecution, and the Applicant was given no opportunity to cross examine in that regard or to make any submissions in respect of such a theory.
On behalf of the Respondent, it is argued that it was not for Detective Garda Ryan to put forward any theory, as he was asked only to describe what he had seen, nor to speculate as to why he might or might not be mistaken about this. The evidence presented on behalf of the prosecution at all stages during the course of the trial was (a) that the Applicant, when arrested, was wearing a red and white shirt, (b) that two gardaí who arrested him found a navy blue fleece top in his car, and (c) that Detective Garda Ryan described him as wearing dark/black clothing during the course of observation in the period immediately prior to his arrest. It is contended in the circumstances that the inference drawn by the trial court was wholly reasonable and obvious.
Conclusion of the Court on Evidence relating to the allegation that fair procedures were not adopted
In essence, Counsel for the Applicant argues that the prosecution having put forward a “theory” in relating to the clothing worn by him on the 13th June 2003, the evidence of the prosecution was seriously challenged and resulted in there being a clear factual discrepancy in that regard. The trial court had erred in resolving that discrepancy in a manner which had as its consequence that the Applicant had been deprived of the opportunity to cross-examine on the basis of this theory.
This is an erroneous categorisation of the evidence presented and of the trial
court’s finding on the evidence actually tendered. In the trial the evidence of Detective Garda Ryan was that during the course of his surveillance of the events which were occurring on the 12th and 13th June 2003, he identified the Applicant as wearing dark or black clothing at the time he sighted him on two occasions at the Thornfield farm, at about 1.15 p.m. and about 15 minutes later on the 13th June 2003.
The context in which the issue arose is as follows. The garda witness was being challenged in cross-examination as to his ability to identify the Applicant as part of the surveillance operation being carried out. The challenge was divided into three parts. First, from where Detective Garda Ryan was positioned it would have been impossible to have seen what he said he had seen. Second, the identification was erroneous because of the discrepancy in clothing, having regard to what it was conceded the Applicant was wearing on his arrest a short time later. This is the subject of this part of the judgment. Third, the Applicant could not have driven up to the shed at the Thornfield farm as alleged because another car was blocking access to it.
The trial court, in dealing with the question of identification of the Applicant, found that the Applicant was already well known to Detective Garda Ryan, and that there was no basis upon which to find that he, having been instructed to carry out a surveillance, would have positioned himself at a location where he could not actually see what he was required to see. In the context of the trial court’s consideration of the evidence tendered, it found that the apparent discrepancy between what the Applicant was wearing, according to the evidence of Detective Garda Ryan, and what the Applicant was accepted as wearing, when arrested a very short time later very close to the Thornfield farm which he had just left, was readily explained by the fact that a navy blue fleece, which could have been mistaken as being black from a distance on surveillance, was found in the passenger seat of the Applicant’s car when he was arrested.
This court is of the view that the inference drawn by the trial court, assuming it accepted, as it was entitled to, the evidence of the arresting gardaí that the navy blue fleece was in fact in the Applicant’s car when he was arrested, was a valid inference to draw from the evidence tendered. Furthermore, the Applicant was in no way deprived of his entitlement to cross examine the garda witnesses on any alleged “theory”. There were no unfair procedures adopted by the trial court in that regard. The application for leave to appeal against conviction on this ground is therefore refused.



The Fifth Ground: Failure to give a “Casey No. 2” Type Warning
Allied to a part of the last ground, the Court next considers the allegation that there was a failure to give an adequate identification warning. This is based on the contention that the trial court had failed to give itself a “Casey No. 2” type warning in the context of the identification of the Applicant by Detective Garda Ryan, as is required by the jurisprudence on the matter. The Applicant submits that, in light of the discrepancies in the identification of the accused at the Thornfield farm, there was a failure on the part of the trial court to give itself the required strong identification warning, since it appears Detective Garda Ryan was probably mistaken as to the identity of the accused. This it is contended, would be likely to give rise to an unsafe conviction. Counsel for the Applicant had suggested to the detective garda in cross-examination that he, the witness, was in fact mistaken in his identification of the Applicant as having been the man who drove into the Thornfield farm on the first of the two occasions, namely at about 1.15 p.m. on the 13th June 2003.
The Applicant contended, firstly, that Detective Garda Ryan was positioned a considerable distance from the place where the Applicant was allegedly identified; secondly that there were a number of obstacles between his position and the place in question; and finally that the witness was obliged to be in a concealed position so as not to be detected by those being watched. Against that background, counsel argues that visual identification evidence can give rise to serious injustice since even an honest witness may be mistaken, which mistake may even be bolstered by the fact that the witness knows the person being identified. It was therefore obligatory for the trial court to give itself a strong warning as to identification, and none was given in the present case. The court, instead of dealing with the matter on that basis, was satisfied merely to rely on the fact that Detective Garda Ryan knew the Applicant from before and recognised him at the material time. It is contended on behalf of the Applicant that such an approach does not meet the level of enquiry necessary in order to rely safely upon the identification evidence actually given.
On behalf of the Respondent, it is submitted that the significance of Detective Garda Ryan’s evidence was that he was the witness who saw the Applicant go into the shed in which the explosives were being mixed, on two occasions in the period immediately before the gardaí arrived at the Thornfield farm. He already knew the Applicant before he commenced his surveillance of the back of that farm. He was in position from about 12.25 p.m. on the day in question. He gave evidence that he saw the Applicant twice, once at 1.15 p.m. and again at 1.30 p.m. Such a situation is far removed from the “fleeting glance” situation in a typical identification case. While the witness had been cross-examined at great length as to the accuracy of his identification, he did not resile from his position in any way. Having regard to the nature of the cross-examination and the response of the trial court, there was no requirement for a Casey “No. 2” type warning, which is usually required where the witness was identifying a person he has not known before.
Conclusions as to the absence of a Casey No. 2 warning
This Court accepts, as is clear from the argument made on behalf of the Applicant, that visual identification may give rise to difficulties, and this is clear from the jurisprudence on the issue, including The People (Attorney General) v Casey (no. 2) [1963] I.R. 33. The finding in that case is succinctly set out in the headnote, which reflects the advice of T.C. Kingsmill Moore J. in his classic passage as follows:
“… it is desirable in all cases where the verdict depends substantially on the correctness of visual identification of the accused that the attention of the jury should be drawn in general terms to the fact that in a number of instances visual identification of an accused person had been established subsequently to have been erroneous, (due) to the possibilities of mistake in the case before the jury and to the necessity for caution.”
In the above case the Court when delivering its judgment also observed:
“In the case which has been referred to us a finding of the guilt of the accused depends substantially if not entirely on the acceptance of the identification by two witnesses, neither of whom had any previous acquaintance with the prisoner. One was a boy aged eleven at the date of the occurrence. The other had only a momentary view in the light of the headlamps of his motor-car.”
It is the case that the above extract has been adopted and followed in many, many cases since it was first pronounced. However, the jurisprudence on the matter has also further developed in that it now draws a distinction between identification and recognition, the former covering the real issue of identification and the latter covering the position where a person “identified” is in fact a person who is already known to the witness and this is more accurately classified as “recognition”. This is the situation in the present case where the trial court found the witness already well knew the Applicant, a matter which had not been challenged in the course of trial. The issue was not therefore an identification issue, in reality or in law, but rather one of recognition. The Applicant asserts that even in the case of recognition, indeed even more so in the case of recognition, mistakes can be made, and therefore the required warning is essential. However that does not take account of the jurisprudence in that regard, and the distinction which the trial court accepted exists, which it was entitled to accept, and which distinction it applied, in finding that it “had no doubt about Detective Garda Ryan’s identification of Mr. Fee given that, “at the time Mr. Fee was well known to Garda Ryan.” (emphasis added). The distinction has been recognised and applied in the recent case of DPP v Gilligan (unreported Sup. Ct. 23rd November 2005). It might of course be different, if, on the particular facts of a case it was established that a material error had been made in the recognition exercise. But here there was no such evidence, and the trial court was entitled to reject the challenge to Detective Garda Ryan’s evidence and to conclude that he was placed in a position of surveillance which in fact enabled him to recognise a person who was already well known to him, as the Applicant was.
In the circumstances, the court is not persuaded that the trial court erred in any way either in law or in fact, in a manner such as to support an argument that a Casey No. 2 type warning required to be given.
The Third Ground: The failure to preserve the scene
This ground raises concerns as to the failure by the prosecuting gardaí to preserve the scene at which the Applicant was arrested. It is contended that the trial court erred in failing to have proper regard to the preservation of the scene of arrest, in particular having regard to the manner in which the navy blue fleece, referred to earlier, was taken by the arresting garda from the Applicant’s car and placed over his body or head. Detective Sergeant Malone testified that he had done so at the Applicant’s own request during the course of his arrest so as to avoid his being publicly embarrassed.
First it is submitted that, in the course of the Applicant’s custody, his solicitor had indicated that the blue fleece was not the Applicant’s, and had also expressed the Applicant’s contention that it was thrown over his head by the arresting garda so as to “bring him into contact” with it. It was similarly contended during the course of the trial on behalf of the Applicant, that, having done so, this prevented the Applicant from seeing any of the actions being taken by the gardaí at the scene of his arrest.
Counsel for the Respondent argues that there was no prejudice to the Applicant arising from the conduct of the gardaí. In particular it is submitted that the trial court accepted the evidence tendered that the navy fleece was placed over the Applicant’s head because he asked for this to be done. It was inevitable that this would mean the Applicant could not see what was going on, but, it is contended, this result was not the intended purpose of the action taken. The garda witnesses had given evidence, accepted by the trial court, that they had not interfered with the van. The trial court was entitled to accept the evidence tendered and had done so correctly.
Conclusion as to failure to preserve the vehicle and its contents
It is common case that the Applicant’s vehicle at the time of his arrest should be treated in every way as being a scene of a crime and therefore it, together with its contents, must be fully preserved, but was not, in that the navy blue fleece had been taken from it and placed over the Applicant’s head. The trial court was alert to this and pointed out that the removal of the fleece was undesirable. The trial court was nevertheless entitled to accept or reject the evidence of Detective Sergeant Malone that he had been requested by the Applicant himself to cover his head and did so in deference to him.
Whereas it was submitted by the Applicant’s counsel that there was a conflict of fact arising from the evidence, based on a suggestion put to Sergeant Malone that the navy fleece did not belong to the Applicant at all, and while the tenor of the cross examination was to imply that it had been placed in the vehicle by the gardaí, the contention that this created a true conflict of fact is not borne out by the evidence tendered in the case. This contention was also wholly rejected by the trial court, and, on the evidence adduced, the trial court was entitled to do this.
This court agrees fully with the finding of the trial court that it was undesirable that the navy blue fleece, or indeed any item, should have been removed from the scene of any crime, in the present case, from the Applicant’s vehicle. However, there are no grounds upon which, even allowing for this, this Court should or could find that the Applicant was prejudiced in having a fair trial by the removal of that fleece or by the fleece being placed over his head, once the trial court accepted the bona fides of that latter act and even if that act was also misguided. Nor has the Applicant established that the consequences flowing from that act namely, that he could not then see what was occurring, disadvantaged him or rendered the trial unfair. Indeed it would not appear from the evidence that there was anything preventing the Applicant from asking for the fleece to be removed from his head had really wanted to do this.
The only basis upon which it could be said that the Applicant might have been disadvantaged by the fact that the navy blue fleece was placed over his head is in the context of the suggestion or innuendo, raised on his behalf in the course of cross examination of the gardaí involved in his arrest, to the effect that the substance found in his car on his arrest was placed there by the gardaí. If that were truly an allegation being made on the part of the Applicant – and the trial court put it only as a suggestion, rather than an allegation – this could not have been sustained. It was established in the course of trial that the explosive substance which was found in the Applicant’s car did not match the substance found at the Thornfield farm, which was in close proximity to where he was arrested, and which it was established he had visited a very short time prior to his arrest. Rather it matched the substance found at the Tallanstown farm several miles away, which was not searched until after members of the gardaí had first searched the Thornfield farm, and had actually arrested the Applicant, but which farm, on the established evidence, the Applicant had himself visited that very morning.
The application for leave to appeal on this ground is rejected.
The Fourth Ground: The Admission of Hearsay Evidence
Next the court turns to the allegation that the trial court wrongly admitted hearsay evidence of radio messages from Detective Garda Ryan, particularly where their precise wording could not be recalled, and having regard to the discrepancies which had occurred in the evidence. Erroneously, according to the Applicant, the trial court acceded to the application of the prosecution that the radio messages from that witness, Detective Garda Ryan, to his colleagues be admitted into evidence. Counsel for the Applicant, in the course of the trial, had unsuccessfully objected to the admission of that evidence. The Applicant contends that, not being on notice of the content or the detail of the radio messages in question, he was unfairly limited in his ability to challenge the same. Moreover, the Applicant submits that the basis upon which the messages were admitted did not comply with the established jurisprudence on the issue of late or fabricated evidence.
As to this ground, Counsel for the Respondent contends that the application to admit the evidence was based on an exception to the hearsay rule, which allows for the admission of prior consistent statements, and that the trial court validly and properly permitted its admission. The purpose of the evidence was merely to show the consistency of the witness, as distinct from the truth of the content of the messages themselves, and the trial court had correctly applied the evidence for the limited purpose for which it was admitted
Conclusions on the admission of hearsay evidence
As is clear from the submissions, both written and oral, made on behalf of the Applicant, that the context of this ground is also one of identification by Detective Garda Ryan of the Applicant as the man who was at the Thornfield farm at about 1.15 pm on the 13th June 2003. The Applicant in the course of the trial challenged the prosecution witnesses on their evidence that he had been at the Thornfield farm at all, suggesting that he was not there, and that Detective Garda Ryan was incorrect or mistaken in his identification of the Applicant as the man he said he saw.
There is nothing in the transcript of the trial or in the judgment which would tend to support the Applicant’s contention that the trial court erred in admitting into evidence the radio messages in question for the purposes of establishing that the evidence of the Garda was consistent, not so as to establish the truth of the content of the messages. The conclusion drawn by the trial Court makes it clear that this was the approach adopted, in that it stated:
“It was clear from the evidence of other garda witnesses that the testimony which Garda Ryan gave was consistent with reports which he made over the radio during the period of his surveillance of the farmyard at Thornfield on the 13th June 2003.”
In that regard it is helpful to note the statement of law by Hardiman, J. contained in the decision of the Supreme Court in the case of O’Callaghan v The Honourable Mr. Justice Mahon (unreported, the Supreme Court, 9 March 2005), who carried out an exhaustive analysis of the hearsay rule. As to the entitlement to adduce evidence as to a prior consistent statement, he stated:
“In other circumstances, a prior consistent statement of a witness may be proved for the purpose of enhancing his credibility. The best known example of this is the admissibility, in sexual cases, of the complainant’s complaint on certain conditions. Similarly, prior statements may be proved to rebut an allegation of recent fabrication; to establish an earlier identification by the witness; when they are part of the res gestae; when they represent the immediate reaction of a person accused of wrongdoing; and when they occur in a document used to refresh memory”.
Moreover the application of the principles relating to hearsay evidence and the exceptions thereto, were also considered in the case of D.P.P. v John Bishop (unreported, Court of Criminal Appeal, 27 January 2005), in which the Court there adopted and applied the principles as established in the judgment of Kingsmilll-Moore, J. in Cullen v Clarke [1963] I.R. 368, which do not require to be set out here.
It is quite evident from these recent statements that the admission of such evidence is not confined to the two situations contended for on behalf of the Applicant but rather applies in a much wider range of situations, including those arising in the course of the trial.
No adequate basis is put forward by the Applicant for the allegation that the absence of notice of the content or detail of the radio messages materially limited the Applicant’s ability to challenge the evidence of a witness in that respect, or that the admission of this evidence was erroneous in law.
In the foregoing circumstances, this ground is unsubstantiated and leave to appeal is refused.
Sixth Ground: Failure to establish intent
Finally, the Applicant contends that the trial court erred in law in accepting mere possession of the materials in question as being sufficient to establish possession with intent, within the meaning of Section 3 of the Act of 1883, as substituted and amended. Section 3 of the Act of 1883 requires the establishment of a specific intent, that is to say, an intent to endanger life or cause serious injury to property or to enable any other person to do so. There was, according to the Applicant’s argument, no evidence of the requisite intent on the part of the Applicant, and further such intent could not properly be inferred from mere possession. Since the specific statutory intent was not established in any way before the learned trial court there was therefore no adequate basis upon which to convict the Applicant.
For the Respondent, it is submitted that the Applicant is incorrect in contending that possession of itself was considered or accepted by the trial court as being sufficient to establish the requisite intent for the purposes of Section 3. The Court inferred the requisite intent from all of the circumstances, including in particular, the quantity of explosives found. The trial court had accepted that the combined weight of the substance found, amounting to 500 kg. would, if detonated, have the capacity to cause damage for several hundred metres and would cause glass breakage and minor property damage at a distance up to 500 metres. This was, it is submitted, factual evidence from which a reasonable inference could be drawn that there was the requisite intent, and it was the only possible inference that could have been drawn from the possession of such a quantity of explosives in the circumstances.
Conclusions on the requisite intent for the offence
In the absence of admissions by the Applicant, or of the Applicant giving evidence in the case, which cannot in either event be complained of or criticised in any way, and in the absence of evidence coming into the hands of the prosecution in some exceptional way, which could safely be relied upon, it would indeed be next to impossible for a trial court to find express intent on the part of the Applicant. That is not to say however that the court may not conclude, so long as it has sufficient safe and reliable material upon which to base its decision, that the requisite intent can be implied or inferred. The court stated in that regard, having set out in detail several relevant pieces of evidence before it:
“… viewed collectively those pieces of evidence point inexorably to the conclusion that Joseph Fee was part of a joint enterprise for the manufacture of a bomb, which in turn involved possession of an explosive substance, both in suspicious circumstance(s) and with intent, as provided for in the Explosives Substances Act, 1883, as amended.”
As to the question of intent, it is important to bear in mind the reality of the trial in the present case, and the evidence which was established to the satisfaction of the court. The Applicant was arrested while driving his white Citroen van on the 13th June 2003, close to the Thornfield farm. When arrested, close to that farm, there was a bucket in the van containing an explosive substance. It became clear from the evidence that the substances in the bucket had the same composition, on analysis as the substance found, not at the Thornfield farm, but at the Tallanstown farm. The position before the trial court was that the established facts, as outlined by the trial court in respect of the Applicant, while referred to but not repeated under this specific heading of “intent” by the trial court itself when finding that the Applicant was guilty of the offences as charged, were clear. The court found that he had been involved in a joint venture with others in relation to the bomb making and in respect of which he was charged with and found guilty of, the possession offences, including possession with intent. The explosive substance found amounted in total to over 500 kilogrammes.
It is useful to reiterate some at least of the findings of the trial court as to the Applicant’s involvement in this joint venture.
(a) The trial court found that the cement mixer, hired by two
co-accused, was delivered and left at the Applicant’s home on the 12th June 2003 by those two, and one of them stayed behind there.
(b) The trial court found that it was beyond the realms of coincidence that this cement mixer could have found its way from the Applicant’s home to the Thornfield farm, if the Applicant was not himself part of that joint enterprise involved in the bomb making venture.
(c) The trial court found it established that the Applicant had asked Terence Cassidy to purchase icing sugar both on the 12th and the 13th June 2003, and that this had been found in the course of the raid of the Thornfield farm when gardaí discovered the Applicant’s co-accused in the course of bomb making activities. The same quantities, as to numbers of bags of sugar purchased, 13 in all, were found at the Thornfield farm, some already used and some not.
(d) The trial court found that on the morning of the 13th June 2003 the Applicant was seen driving his van from his home first to the Tallanstown Farm, and then to the Thornfield farm and was at that time followed by one of the persons found at the Thornfield farm engaged in the process of bomb making as described below.
(e) The trial court further accepted as proved that the Applicant had been recognised by Detective Garda Ryan and was the person who had visited the same farm and entered the shed on that farm, on two occasions just before the farm was raided on the 13th June 2003. The shed was found to contain a bomb making facility, with two persons operating it, one of whom had earlier accompanied the Applicant to the Tallanstown farm.
(f) The trial court accepted that when arrested the Applicant was found to have a quantity of explosives, not identical to the Thornfield farm substance but rather identical to that found later at the Tallanstown farm, in his van. He had visited that farm with one of the co-accused who had hired the cement mixer and who was also subsequently at the Thornfield farm when raided.
(g) The trial court found it established that the combined weight of the explosive substance found at the Thornfield farm was in the region of 500 kilos.
(h) The Court accepted the evidence tendered that this amount of explosive substance had the capacity to cause damage for several hundred metres and would have caused glass breakage and minor property damage at a distance of up to 500 metres.
Having regard to the foregoing, the trial court was fully entitled to draw the inference which it did, having stated:
“The courts accept that in a case such as this, where circumstantial evidence is relied on by the prosecution, before considering the evidence as a whole the court must be satisfied beyond reasonable doubt of the reality of each of the circumstances which are alleged to comprise the whole. In that regard, the Court has highlighted the several pieces of evidence which, in the view of the Court, points to the guilt of the accused Joseph Fee and the Court confirms that it is satisfied beyond any reasonable doubt of the truth of each and every one of those pieces of evidence. Accordingly, the Court is satisfied that Joseph Fee is guilty of the offences charged at Courts 1 and 2 on the indictment.” (emphasis added)
It is true that the trial court did not specifically refer to the manner in which intent of the Applicant was established in its judgment. However, it cannot be gainsaid that the above items of evidence accepted by the trial court as being proved, support of themselves – in particular, but not exclusively, the amount of the explosive substances being manufactured into bombs as well as the evidence as to the damage to flow from the same - and infer, without need for any more, an intention to cause serious injury.
The Applicant’s contention that the requisite intent was not established is therefore rejected.
Having regard to the foregoing, this court rejects the application for leave to appeal on all of the grounds put forward.