Irish Court of Criminal Appeal

Judgment Title: DPP v Bryan Ryan

Neutral Citation: [2011] IECCA 6


Court of Criminal Appeal Record Number: 290/08

Date of Delivery: 03/11/2011

Court: Court of Criminal Appeal

15.02 to 16.35 on 20^th June, 2007;
17.15 to 18.10 on 20^th June, 2007;
19.30 to 21.15 on 20^th June, 2007;
22.00 to 22.50 on 20^th June, 2007;
08.24 to 10.45 on 21^st June, 2007; and
11.36 to 12.36 on 21^st June, 2007.

Now, as regards matters that transpired in the course of that first interview on the morning of the 21^st of June between 9.39 and the conclusion of that interview, if there any questions that can be identified that relate solely and to matters that might have been divulged in the course of the period from 8.23.50 until 9.39 the following morning, I will also rule those out. As I say, there must be questions that can be identified as arising solely from answers made and not matters that were already in the possession of the Garda Síochána through other means.” [Book 6, p. 35, line 14 et seq]

“In the present case, of course, the trial judge held that there was a deliberate breach of the constitutional rights, and that any statements made before the arrival of the solicitor must be excluded. However, two questions still remain unanswered. Firstly, whether, once the solicitor arrived and gave his advice, there was any further breach of the accused’s constitutional rights and, secondly, even if the breach had ceased, whether his detention remained unlawful. I have no doubt that the answer to the first question must be that the ultimate access to the solicitor put an end to any unconstitutional situation. The unconstitutionality lay in the absence of legal advice, and once that advice had been obtained, his constitutional right had been complied with.
The much more difficult question is whether the accused’s detention, having been rendered unlawful by the breach of his constitutional rights, remained unlawful. The initial arrest of the accused was undoubtedly lawful, as was his custody up to the time that he requested a solicitor. Thereafter, it was certainly wrongful of the gardaí to question him pending the arrival of the solicitor but that questioning is not what created the unlawfulness of his detention. The statements made by the accused pending the arrival of his solicitor would have been inadmissible whether there had been an undue delay in the arrival of the solicitor or not. What made the detention unlawful was the deliberate and conscious decision of the gardaí to contact Mr. Gaffney, rather than a more convenient solicitor, when they knew or ought to have known that there would be a very considerable delay in his attendance. That decision was made in breach of the accused’s constitutional rights and, therefore, from the moment that decision was made his detention became unlawful. The detention remained unlawful so long as the breach of the constitutional rights continued. Logically, therefore, once the breach of the constitutional right ceased, the detention ceased to be unlawful.”

“If the inculpatory statement or admission ultimately made by the accused was elicited from him by the use of information disclosed by him while he was in unlawful detention, there would clearly have been a causative link between the breach of his constitutional rights and the making of the statements or admissions. In those circumstances, material which had been wrongfully obtained in breach of the accused’s constitutional rights would have been used to obtain an inculpatory statement or admission. However, the corollary to this also appears to me to be valid, namely that if the statements were not made as the result of any material obtained in breach of the accused’s rights, then they are not tainted by unconstitutionality and, provided the accused’s detention was lawful at the time they were obtained, they are admissible.” [Emphasis added]

(a) A question concerning the applicant’s knowledge of the gun. The objection is to be found in the transcript at Book 6, p. 7, line 26 et seq. The relevant question and answer was:-
Q. “Did you have an idea that there was a gun involved if you thought that the person with you was going after one of the Tobins, because of their reputation?”
A. “I did not know there was any guns. I thought your man would run and frighten. This fellow told me stay away in the garden, so I got a bit iffy.”
Counsel submitted that this question was explicitly grounded on an admission made in the same interview but during the earlier unconstitutional period of questioning before 9.30 a.m.
The relevant earlier admission is to be found in the transcript at Book 6, p. 8, line 3 et seq and is in the following terms:-
Q: “When you said that you drove to Fortlawn Park on the 27^th May 2007 to give someone a fright or a scare, was it one of the Tobins who was supposed to get the scare?”
A: “I think so.”
Q: “Was it Ian Tobin?”
A: “I doubt it.”
Q: “Was it Blake Tobin?”
A: “I cannot truly say, because I was only going there with your man.”
Notwithstanding counsel’s objection, the particular question was not excluded.
(b) The second question objected to relates to the burning of the motorbike. The objection is to be found in the transcript at Book 7, p. 1, line 10 et seq. The relevant question and answer was:-
“Q. Just after the bike was burnt, the fire brigade and the gardaí was there within minutes. The scene was forensically examined. No traces of helmets or clothing were found; what do you say to this?”
A. They were left on top of the bike. I put the fluorescent jacket over the bike and I poured petrol in the helmet”
The basis of the objection was that the question concerning the forensic examination of the burnt remains of the bike clearly arose from the applicant’s assertion in an earlier unconstitutional interview that he had burnt his clothes and the helmet. In the course of the fourth interview, conducted on 20^th June, 2007, between 22.00 and 22.50, the following questions were asked and were answered by the applicant:-
Q. “What did you do with the helmets?”
A. “Burnt them in Sheepmore, with the bike.”
Q. “What about the jackets and clothing you were wearing?”
A. “Burnt with the bike.”
The question was admitted notwithstanding the objection raised. Again it is hard to identify clearly the trial judge’s reasons for not admitting this question, but in so far as it can be gleaned from the transcript [Book 10, p. 1, line 25 et seq], the learned trial judge appears to have accepted a submission of prosecuting counsel to the effect that the gardaí had sufficient independent knowledge of the burning of the bike from Mr. Whelan, as well as forensic evidence (which would, of course, include negative findings) from the experts who examined the burnt remains, to enable it to be said that the question and answer objected to did not necessarily flow from what had been said in the earlier interview.
(c) The third question objected to relates to the applicant’s unwillingness to name the shooter. The question and answer objected to were in the following terms:-
Q. “Bryan, the fellow you were with who did the shooting, you know him but can’t name him because you are in fear of your life, is that the case?”
A. “Yeah.”
It was submitted that the only basis for asking this question was that the applicant had made remarks to that effect during the unconstitutional period. The applicant had indeed made such remarks previously. However, counsel for the prosecution submitted that it could not be said to have been solely and directly attributable to the material that had been excluded. Moreover, the learned trial judge observed that it was a “fair question” [Book 7, p. 2., line 28]. Although once again it is difficult to isolate with precision his reasons for doing so, the learned trial judge admitted the above question and answer, and it is to be inferred that he did so both because he regarded the question as fair and because he agreed with the prosecution’s submission.

Q. "Bryan, just in relation to what you told us about the shooting on the 27th of May 2007, if you had drove off without the person who carried out the shooting, what would have happened to you?

“Q. Just going back to where the bike was burnt, did you know 26 Sheepmore Grove, did you know that house was vacant?”.

Right of Access to a Solicitor Generally
Before moving on to address the next issue the Court considers it important to recall that in this case the contents of five out of the six interviews conducted by the Gardaí with the applicant, and portion of the other interview, were excluded on the grounds that the applicant’s constitutional right of access to a solicitor had been breached. This is by no means an unusual ruling in criminal trials generally including those concerning the most serious of offences such as murder. The constitutional right of persons who are being questioned in custody to access to legal advice before questioning (and the duty to advise them of that right) is well established. The right is reflected in the provisions of the Regulations for the Treatment of Persons in Custody in Garda Stations (S.I. 119 of 1987) according to which the member in charge of a garda station is obliged, inter alia, to inform an arrested person without delay of his or her right to consult a solicitor in addition to an explicit provision providing that an arrested person shall have reasonable access to a solicitor of his or her choice. It is not necessary to recall here the reasons why such a right is a necessary protection for an arrested citizen all of which have been extensively referred to in the case-law on this topic. It is also a right which is recognised in most if not all democratic countries and one of the rights recognised in the European Convention on Human Rights (to which the State is a party) and which has been the subject of important decisions by the Court of Human Rights. The frequency therefore with which garda interviewing practices have resulted in otherwise important evidence being rendered inadmissible for such breaches is surprising and to be regretted. The situation would suggest that there is some lack of a coherent practice or training of garda officers as to the manner in which arrested persons should be treated so as to ensure that full and substantive effect is given the right of access to a solicitor, having regard to established principles of law applicable to such a right including principles stemming from the case-law of the European Court of Human Rights. Apart from the relevance of the latter from a comparative law perspective account would have to be taken of s. 2 of the European Convention on Human Rights Act 2003 which requires, even if somewhat enigmatically, that any statutory provision or rule of law be interpreted as far as possible in a manner compatible with the State’s obligations under the Convention. Apart from the time and expense that would be spared if criminal jury trials did not have to spend considerable time addressing such issues in the absence of the jury (a subsidiary but important consideration), the adoption, or more important the giving effect to, of an essentially uniform practice or protocol which ensured that the right of an arrested person’s access to a solicitor was routinely respected would in turn ensure that evidence properly and fairly obtained during interviews suspects is admissible at the trial. That that should be so, whether such statements are inculpatory or exculpatory, is in the interests of justice from every perspective.

matters that were important from the applicant’s perspective were not being noted, including requests for a solicitor and denials by the applicant. In contrast to this, matters helpful to the garda case were being duly noted;
the applicant was told that unless he admitted to participating at some level in the incident, he would, notwithstanding his protestation that he was unaware that his passenger intended to kill somebody, be convicted of murder and imprisoned for 30 years;
it was suggested to the applicant on at least seven occasions that he could have been involved in the operation without necessarily having an intent to kill;
it was repeatedly suggested to the applicant that if he received a very lengthy prison sentence his partner would take up with another man and his daughter would be raised by such man;
it was suggested to the applicant that making no comment meant that he was guilty;
the gardaí raised their voices or shouted at the applicant on at least four occasions;
it was suggested to the applicant that if during the garda interviews he did not admit to involvement at a level less than that of murder, he would not be permitted to put forward a defence to that effect in a subsequent trial; and
it was suggested to the applicant that he was not entitled to legal advice while an interview was ongoing, and that the garda attitude was that just because he was asking for a solicitor did not mean he was necessarily going to see a solicitor. Moreover, his requests for a solicitor were not in fact acted upon.

“Secondly, [counsel for the applicant] challenged the admissibility of the answers given in the course of the remainder of the interrogations, on the grounds of oppression, and contended that his client’s will had been overborne by the manner of his interrogation, to the extent that any admissions made by him were not the emanence of a free will and were neither free nor voluntarily made. Thirdly, he contends that the manner of his client's interrogation fell short of what is acceptable and contended that it would be unfair to admit his answers and that they should be excluded. Fourthly, he contended that his client, having made admissions whilst in unconstitutional detention, had been placed in a position where he was obliged to continue making admissions. Mr Ó’Lideadha has drawn attention to the following; (1) that the interrogators shouted at his client or raised their voices to his client on a number of occasions during his interrogation; (2) that the interrogators accused his client of lying; (3) that the interrogators jeered at his client in relation to the difficulties he had with his girlfriend and in relation to the fact that he had struck on one occasion; (4) that the interrogators told his client that he would not see his girlfriend and child for a long time and that another man would rear his child; (5) that the interrogators told his client that if he didn't tell them things now, he couldn't tell those matters to the Court at a later stage; (6) that they sought to have his client admit to a lesser offence and made it clear to him that if he didn't, he would be convicted of murder. He argued that these matters were designed to psychologically undermine his client’s will. He argued that these matters, when taken alone or in conjunction with the deliberate denial of access to his solicitor, must inevitably lead to the conclusion that in all the circumstances, the interviews should be ruled inadmissible. I have had the benefit of hearing evidence both from the prosecution and the defence and having viewed extensive periods of video footage. It is clear that the suggestion that's been made to the accused man, that it would be impossible for him to say matters in the court if they hadn't been said to the Garda Síochána, was wholly improper and should not have been said. However, it is clear, from the evidence given by the accused man himself, that he does not contend that that in any way influenced his decision to speak to the Garda Síochána. It is clear from the video footage that the accused's interrogation alternated between being vigorous and robust and being sympathetic and cajoling. However, it is also clear that there were no threats of physical violence and neither were any improper promises or inducements held out to the accused man. I am satisfied from viewing the video that the accused was well capable of standing his corner and indeed on at least one occasion the accused instigated the shouting that took place with the Garda Síochána. There is, however, one occasion where the accused appears to have been reduced to tears late in the evening of the 20th. But if the accused was in low spirit on the evening of the 20th, it is clear from the video footage that on the following morning the effects of the previous day's interrogation had dissipated and that his spirit was refreshed. The accused can be seen in the video as being relaxed and in jocular form and it is clear in the course of that interview that he was more than capable of choosing which questions he would answer and which questions he would not. I did not find the accused to be a credible witness. In the course of his evidence in chief, he stated that on the morning of the 21st, he had been unable to talk to his solicitor because a member of An Garda Síochána was standing by his side. This suggestion had not been made previously in cross-examination of the Garda Síochána by Mr Ó’Lideadha, who has clearly been extensively briefed in this matter and who has thoroughly prepared his brief. And I am driven to the conclusion that this was in fact a recent invention on the part of the accused man. Further, the accused man would appear to be a poor historian. His evidence to the Court was that the solicitor who spoke to him was Michael Hanahoe but the custody record records the phone calls received by the Garda Síochána as being received from Terence Hanahoe. I am satisfied beyond doubt that the accused man was not oppressed, that his questioning was not unfair, that his answers were not influenced by what he might have stated in the course of his unconstitutional detention and I'm satisfied that his answers were freely and voluntarily given, where the accused man had the choice either to speak or to remain silent. Accordingly, I rule the challenge has not been sufficient to lead to a situation in which the matters would be excluded from evidence and I rule the matters admissible in evidence.” [Book 11, p. 39, line 16 et seq]

"A review of the authorities indicates that, in general, it will be very difficult for the prosecution to establish that a subsequent inculpatory statement was made free of the inducement that preceded the first. Such a strict approach is justifiable on the basis articulated by Jackson J. in U.S. v. Bayer, that:
” ... after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag.”"

“Secondly, even if a statement is held to have been voluntarily obtained in the sense indicated, it may nevertheless be inadmissible for another reason. 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 public policy, based on a balancing of public interests, requires such exclusion" —per Kingsmill Moore J. at p. 161 of the report of O'Brien's Case” [The People (Attorney General) v. O'Brien [1965] I.R. 142] . “This is a fairer and more workable test than a consideration of whether the questioned statement complies with specific constitutional provisions, because most of the criminal trials in this State are held in courts (the District Court, the Circuit Court and the Special Criminal Court) which, in terms of their judicial personnel, judicial experience and vested jurisdiction, are not designed for constitutional interpretation or for the balancing of constitutional rights, or for the preferment of one invoked constitutional provision over another.
The test of basic fairness, based on a due consideration of the rights of the accused coupled with the requirements, in the interests of the common good, of the prosecution, superimposed on the need for voluntariness, has the merit of ensuring, if the judicial discretion is correctly exercised, that an accused will not be wrongly or unfairly convicted out of his own mouth.”

it was not possible for the defence to be prepared and conducted properly; and
it was not possible for the reliability of the said witness to be assessed properly.

“the reliability of the witness could be affected by the fact that the protection of his life was at stake”; and
“the reliability of the said witness should be assessed in the light of the benefits which he received under the said Programme and that if the absence of information as to such benefits left a doubt in the minds of the jury, such should be resolved in favour of the applicant.”

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?
Is corroboration in the sense described in R v. Baskerville [1916] 2 K.B. 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?
It is evident from the decisions and practices of the Supreme Court that in an appeal pursuant to s. 29 of the Act that Court is not confined to the literal terms of the questions as formulated and certified by the Court of Criminal Appeal. Thus, in order to give a substantive and effective ruling on the issues of law raised by such questions it may reach conclusions which it considers appropriate as to the principles of law applicable to those issues even if such a ruling extends beyond the literal terms of the questions as certified. Such questions are not certified solely for the purpose of an appeal in the particular case concerned but because a decision on the issues is certified, in the terms of the Act, as involving “a point of law of exceptional public importance.” In addition of course the scope of the appeal itself may, on foot of the Notice of Appeal as filed, be extended to issues other than those certified where the Supreme Court permits such issues to be argued in accordance with s. 29 as construed and applied by the Court. As already noted, in the Gilligan case the notice of appeal raised all the issues which had been raised by the appellants in the Court of Appeal.
As is evident from the judgment of Denham J. in that case, with whom the other members of the Court agreed, the issues addressed referred not only the directions which a trial judge gives to a jury in respect of a witness who was an accomplice but also decided how the jury should be directed concerning the evidence of witnesses who are not accomplices but who are nonetheless participating in a witness protection programme and all that may entail. Thus, the issues addressed and decided by the Supreme Court in that case included the principles of law applicable, firstly to the very nature of a witness protection programme so as to ensure that an accused’s right to a fair trial is not thereby compromised and, secondly, to the question of a warning to the jury concerning corroboration of the evidence of a witness participating in such a programme, even if such a witness is not an accomplice to the commission of a crime. This was as much a decision on the first question certified as on the second. The latter issue concerning corroboration is explicitly addressed at several points in the judgment the most relevant parts of which are cited in this judgment.
In her judgment in that case Denham J. (nem. diss.) stated (at 138 to 139) that:
“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, ……, 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.”

“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 will fabricate evidence to his advantage. He may seek favour to improve his conditions by giving prejudicial evidence against other persons.

“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…, 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”

“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 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 scrutinised 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….”

“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 be distinguished from corrupt or abusive activities, including bribery. In analysing the facts of the case, the activities of members of An Garda Siochána in relation to such a witness protection programme are relevant and fall to be scrutinised carefully.”

“… it is clear from Mr Justice Carney's ruling that Mr Justice Carney was in no way seeking to tie the hands of the trial judge. What was said in evidence by Chief Superintendent Patrick Hogan was that he claimed privilege on two counts. The first was on the basis of it being proper for the Garda Siochána to offer protection to witnesses who have evidence and whose lives are at threat, and also on the basis of the responsibility for the witness security programme to be, and the integrity of the programme, to be kept intact. We have in our jurisdiction public interest immunity from disclosure and the doctrine of public interest immunity prevents matters from being disclosed and it is used in the usual way, whenever it is held that the public interest in nondisclosure outweighs the public interest that in the administration of justice the Court shall have the fullest possible access to all relevant matter. It seems to me in the present case that the predominance of interest as of the moment lies with nondisclosure of the material. It seems to me that the witness in question can be cross-examined in relation to the fact that he is on the Witness Protection Programme and that he has obtained a benefit from being on that programme. I have had sight of the terms of the programme and of what benefits are available to the witness. If, in the course of cross-examination, the witness seeks to suggest that the benefits that he is obtaining are less than the benefits set out in the document, it may well be that it would be necessary for that material to be disclosed and for the public interest immunity to be waived, but as matters stand I do not propose this material should be disclosed to the defence or to the jury.” [Book 3, p. 2, line 4 et seq]

“Well, it seems to me, Mr Ó Lideadha, that there can be no difficulty asking the witness as to whether or not he is receiving a weekly sum or asking him the amount of that weekly sum, whether or not there are any other benefits that is obtaining from the scheme in the form of any other matters that might be paid on his behalf such as utilities, such as accommodation, such as maybe petrol, maybe road tax, maybe insurance, maybe the use of a mobile phone, matters of that nature; whether or not he might have been paid a lump sum in addition. As I say, if it seems to me that answers that are given to those questions depart from the matters that I have seen in [the] protocol, then the departure should be brought to your attention, at which stage you will be in a position to apply to me to change my ruling in the light of changed circumstances.”

Mr Ó Lideadha: “ …I just want to indicate that obviously if I had known there was no lump sum, I would not have asked the question. I was obviously under a misapprehension as to your lordship’s indication earlier on - -”
Judge: “ You were the one who raised the issue of a lump sum way before even I saw the protocol .”
Mr Ó Lideadha: “… I would not have asked that question if I didn't believe that your lordship had signalled that that was a question that might be appropriate for me to ask.” [Book 8, p. 38, line 7 et seq]

“The State ….rely upon the evidence of Mr Whelan as part of their case and I want to tell you at this stage that where a person is an accomplice in a crime, it is necessary for a judge to warn a jury that it is dangerous to convict on the uncorroborated evidence of an accomplice. Corroboration …. is independent testimony that tends to show that the crime was committed and also that the person who committed the crime was the accused person.
In the present instance you would have to be -- well, I am not saying,… and I shouldn't say that Mr Whelan was an accomplice but you have heard the evidence and it is for you to draw your own conclusions in relation to whether Mr Whelan was an entirely innocent man as regards this particular enterprise or whether he was in some way participating in it ………. . And if you are not satisfied beyond reasonable doubt that Kevin Whelan was not an accomplice then you should bear in mind my warning to you that it is dangerous to convict on the uncorroborated evidence of an accomplice. That is not to say that you cannot convict on the uncorroborated evidence of an accomplice, but you must have regard to the warning and to the fact that it is dangerous. And you have to look ….. and see is there independent testimony that tends to show not alone that the offence was committed but that the accused committed it … .” [Book 10, p. 48, line 25 to p. 49, line 11]

“… because the State case depends on the testimony of Kevin Whelan …. the spotlight must fall upon him and you must examine his evidence under the microscope. Obviously you look at his testimony also in the light of what is said by Mr Bryan Ryan. Well, if the State are to bring their case home for murder, you must be satisfied beyond reasonable doubt …. that Kevin Whelan is a credible witness” [Book 10, p. 55, lines 16 – 21]

“As I say, he is the lynchpin of the prosecution case and if you are to convict in this case you have to be satisfied beyond reasonable doubt as to his credibility. As I say, if the State have not satisfied you beyond reasonable doubt that he is not an accomplice, you must bear in mind my warning about being dangerous to convict in the absence of corroboration.
Now, Mr Whelan…. is currently on the Witness Protection Programme and that is something that you must give consideration to. People can be on the Witness Protection Programme who are completely innocent of any wrongdoing or any involvement in the crime or the trial, the trial of which they gave evidence, or they can be somebody who is knee-deep in it and you can have the situation…. where the Witness Programme is offered to somebody who has been, as I say, knee-deep or perhaps to a greater extent involved in the commission of an offence, and clearly they are accomplices. And they have an interest…. in giving certain evidence. You will recall that a number of years ago Veronica Guerin, a journalist, was shot and killed and a number of people were tried in respect of that offence. The prosecution case in all of the trials depended upon a man who, of his own admission, had prepared the gun for the killers. And having regard to the law of joint enterprise, he was as guilty as any of them for that act alone because he knew what was going on with that gun, but he was granted immunity from prosecution on the basis that he would testify against his fellow conspirators and you can see how he had an interest in giving evidence against them because he had been granted immunity from prosecution, he had a vested interest in the trial; "If I give evidence against them, then I am not going to be prosecuted. I have been granted immunity from prosecution because I am going to give evidence against them." And any person on the Witness Protection Programme certainly derives benefit from being on the Programme to a greater or lesser extent, but you can have somebody on the Programme who is as pure as the driven snow who has no involvement in the offence. If I was perhaps to observe a gangland killing and I was in a position to identify the individual involved or the vehicle involved or I was in a position to give some assistance to the Garda Síochána, then my life might be at risk and I could find myself on that programme for my own protection, not that I had any benefit to gain from giving evidence because I was not involved in the offence itself but a benefit would undoubtedly inure to me insofar as I would have a new identity, I would have a new life and I would have the Garda Síochána protecting me. I would also derive a financial benefit from it and you will recall that Mr Whelan was questioned about that and he readily conceded to Mr Ó’Lideadha, yes, there were certain financial benefits to him. He was getting an allowance, he was getting, I think it was his accommodation paid, his bills paid, his telephone paid, matters of that nature. He was asked about a car, if I recall correctly, and he said, no, he didn't have a car I think it was petrol that Mr Ó’Lideadha had asked him about. And so that is something to be borne in mind…. where does it enter the equation or does it enter into the equation as regards Mr Whelan and what effect, if any, does this have on the testimony he gave here? Did he give his testimony for the purposes of protecting himself, gaining a benefit or is he being a truthful credible witness who is telling you the truth? As I say, and you look to it, you look in particular to the question of was his own role in the matter more than he admitted to here, was he just somebody who was arrested and we had been told that he was arrested simply on the basis of possessing information but it does appear from the manner in which he was questioned or interrogated, from the excerpts that have been read, and from those interviews, by Mr Ó’Lideadha to him, the Garda Síochána were not necessarily approaching it on the basis that he just has information, but they were approaching on the basis that he might have a greater involvement in it. So, as I say, the question is: are you satisfied beyond reasonable doubt that he is not an accomplice? As I said, to couch it in the negative as I did, if you are not satisfied beyond reasonable doubt that he is not an accomplice then bear in mind my warning.” [Book 10, p. 55, line 16 to p. 57, line 17]

“They were dealing with a case that was before them and the Supreme Court, in my view, have not given consideration to the position of an innocent man who might be on the Witness Protection Programme …” [Book 10, p. 4, lines 23 – 27]

“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.

“… the matter relates to the rights and duties of defence counsel, and it is the defence counsel who is entitled to say at the end of the case what his defence is. And, while the trial Judge may regard the defence as being unmeritorious, nevertheless it is a fundamental rule in a criminal trial that the defence must be put to the jury and that it is the right of defence counsel to say what his defence is.”

“Nevertheless, in any case where there is a real basis in evidence for leaving one or more alternative defences to a jury, it seems to me that the trial judge on being requested so to do should in principle do so. However, the evidence must be real and not just a speculative possibility.”

Accordingly this ground of appeal should be dismissed.