The People (DPP) (respondent) v Colm Murphy (appellant)
Criminal law - Appeal - Conviction - Application for leave to appeal from conviction of Special Criminal Court - Evidence - Admissibility - Perjured evidence - Deliberate alteration of police interview notes - Whether trial court adverted to possibility of other evidence being tainted with illegality - Character of accused - Previous convictions adduced at trial - Whether Special Criminal Court entitled to reach guilty verdict on evidence adduced - Whether conviction should be quashed as unsafe - Explosive Substances Act 1883 , section 3 - Criminal Law (Jurisdiction) Act 1976, section 4
The Court of Criminal Appeal; delivered January 21st, 2005.
The Special Criminal Court has a duty to evaluate in an extra critical fashion and be very alive to the possible contamination of remaining Garda evidence when it comes to light during a criminal trial that other Garda evidence was tainted and perjured. Moreover, the Special Criminal Court has a duty to explicitly state on the face of the judgment that it was so doing. The Court of Criminal Appeal could not make findings as matters of probability about police evidence which were based on speculation and not on evidence. A conviction would also be unsafe where evidence of the accused's previous convictions had been improperly introduced during the trial.
The Court of Criminal Appeal so held in setting aside the appellant's conviction and directing a retrial.
Michael Liam O'Higgins SC and Richard Humphreys BL for the appellant; Peter Charleton SC and Thomas O'Connell SC for the respondent.
Mr Justice Kearns delivering the judgment of the court said that the accused was convicted of conspiracy to cause an explosion of a nature likely to endanger life or cause serious injury to property contrary to section 3 of the Explosives Substances Act 1883, as substituted by section 4 of the Criminal Law (Jurisdiction) Act 1976, and was sentenced to 14 years' imprisonment, in relation to the Omagh bombing by the Special Criminal Court.
Having been refused leave to appeal by the trial court, he applied by way of appeal for leave to appeal to the Court of Criminal Appeal pursuant to section 44 of the Offences Against the State Act 1939.
The prosecution case was to the effect that the car in which the bomb was placed had been stolen in Carrickmacross, Co Monaghan, on August 13th, 1998, and was thereafter driven to Omagh on the day of the explosion.
It was part of the prosecution case that, two weeks earlier, another large car bomb of a similar nature, which had been placed in the same type of vehicle, exploded in Banbridge. It was further part of the prosecution case that the same code-word was communicated by way of warning prior to the detonation of the car bombs in each case.
The prosecution further contended that on the day before the Omagh bombing, the accused borrowed a mobile phone from his foreman and gave that and his own mobile phone to one Seamus Daly, described by the court as a dissident republican terrorist on that date.
The prosecution further relied on telephone records which it contended established a pattern of communication on the appellant's mobile telephone both shortly prior to and subsequent to the bombing. The prosecution further relied on evidence that the accused's mobile telephone was used to make a call from the Banbridge area in or around the time of the Banbridge explosion.
Much of the prosecution case rested upon the admissions alleged to have been made by the accused following his arrest and during the course of his detention between the February 21st, 1999, and February 24th, 1999. The prosecution contended that the admissions made by the accused during that period established that he knew that he was providing a significant service in connection with a bombing operation in Northern Ireland on or about August 15th, 1998, thus tying him into a conspiracy with others in connection with that proposed crime.
There was at the trial independent evidence from one Terence Patrick Morgan confirming that the accused had borrowed his mobile phone on August 14th, 1998, and that the accused had stated to him that he needed the phone because his own phone was "on the blink". Both the prosecution and the trial court placed considerable reliance upon this evidence as constituting independent corroboration of the admissions made by the accused.
When the trial was almost over on January 11th , 2002, it emerged that a letter had been received by the prosecution dated January 8th, 2002, from a solicitor acting for Mr Morgan intimating that he wished to retract his evidence and contending that he had been compelled by police pressure to give a false account of having loaned his mobile phone to the accused.
Having heard submissions, the court allowed Mr Morgan give further testimony in the course of which he claimed to have given his evidence in its original form because of pressure and threats by police officers during his interrogation in Northern Ireland and subsequently by the Gardaí indirectly through his in-laws.
On January 11th, 2002, Mr Morgan completely contradicted his previous evidence and contended that his mobile phone had been left in an open glove compartment in his van on August 14th, 1998. At some stage during that afternoon he discovered the telephone was missing. Eventually, he claimed he found the mobile on the following Monday morning under a seat in the van. He did not offer any explanation for the movements of the mobile telephone on the day of the Omagh bombing, or the user of it at that time as disclosed in the relevant telephone records.
The court decided to accept as truthful Mr Morgan's original evidence and rejected his purported retraction of evidence having observed his demeanour and having noted the general tenor of his evidence on both occasions.
Insofar as the telephone evidence was concerned, the court decided it could accept the veracity and accuracy of the telephone evidence beyond reasonable doubt. The court further held that the accuracy of the records had not been challenged by the defence. The court found two aspects of the evidence to be of particular significance.
The first related to calls made by the accused's mobile phone via the Banbridge cell site mast less than an hour before the bomb exploded. The court took the view that this confirmed that the accused's mobile phone was in the vicinity of Banbridge prior to the detonation of the bomb and that one "flash" call and another of very short duration were made in quick succession in that location. The court was of the view that this was similar to the pattern which emerged from the records relating to the appellant's and Terence Morgan's mobile phone at times consistent with the Omagh bombing two weeks later.
The court in delivering judgment took the view that the telephone records and the traffic between the two phones on August 15th, 1998, together with lies told by the accused to Terence Morgan by way of explanation when borrowing his mobile phone were matters corroborative of the accused's confession of guilt regarding his part in the conspiracy to plant and detonate the Omagh bomb.
The court further found that lies told by the accused during the course of his detention at Monaghan Garda station about not having loaned his mobile phone to anyone on the day of the Omagh bombing, which said lies were retracted by him in later Garda interrogations, were also corroborative of the accused's later confessions of guilt. The court further noted that the accused's admissions of guilt as recorded in Garda interview notes had gone uncontradicted in evidence. The court further found that there was a similarity between the traffic pattern of user of the accused's mobile phone at Banbridge on August 1st, 1998, and the Omagh telephone traffic in relation to the accused's and Morgan's telephone on August 15th, 1998. The court further noted that theaccused was a republican terrorist of long standing "having been convicted of offences of that nature in this State and in the United States of America". The court further noted that among others contacted by the accused's mobile phone shortly before the Banbridge bombing was Seamus Daly to whom the accused is alleged to have admitted giving his own and Terence Morgan's telephone on August 14th, 1998, for use in connection with the Omagh bombing.
The court was further satisfied that even if the foregoing factors did not collectively go far enough to establish confirmation of the accused's guilt, it was clear beyond a reasonable doubt that the alleged admissions made by him in the course of Garda interrogation were as recorded in notes made by the interrogators, and in particular that the interview conducted by Detective Garda Hanley and Detective Sergeant McGrath on February 23rd, 1998, had a probative ring of truth and there was a convincing explanation for the accused making them.
The court further felt able to conclude that the motive of the accused in making the alleged admissions was to distance himself from any suggestion that he participated in the actual Omagh bombing itself. For that reason, the court concluded, he had a strong incentive to tell the truth and was satisfied, even if various other evidential factors fell short of corroborating the accused's guilt of conspiracy as charged, that it would have been proper to convict him on the basis of his own admissions.
The successful grounds of appeal were that the Special Criminal Court failed to either grant a direction or acquit the accused when there was before it evidence that police witnesses had altered notes of written interviews and had lied under oath and that the Special Criminal Court breached the accused's entitlement to a presumption of innocence by having regard to inadmissible evidence of previous convictions. The other principal, unsuccessful, grounds of appeal were that the Special Criminal Court ruled incorrectly as to the legality of the accused's arrest and subsequent detention and wrongly admitted evidence of interview notes and alleged utterances by the accused; that the Special Criminal Court wrongly admitted telephone records as evidence; that the Special Criminal Court wrongly relied on the evidence of Terence Morgan, which said evidence was of an unreliable character; that the Special Criminal Court misdirected itself as to corroboration and made findings as to corroboration which were not supported by the evidence; that the Special Criminal Court failed to adequately address the defence case or rule in detail on various points argued on behalf of the accused by counsel; and that the trial was rendered unsatisfactory by reason of an almost two-month break in proceedings.
The Court of Criminal Appeal said that its function in appeals from the Special Criminal Court were, as described in The People v Madden IR 336, "to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact...".
Prior to May, 2000, the defendant's legal advisors had arranged to have the originals of all interview notes examined by a forensic document examiner. The purpose of this ESDA examination was to determine whether the notes had been altered and whether pages had been re-written or substituted or were not contemporaneous.
During the course of the cross-examination by defence counsel of Detective Gardaí Donnelly and Fahy, it was put to them that the scientific test carried out by the expert would suggest, as was later confirmed in evidence, that the third page of the original notes of their interview on February 22 nd, 1999, had been re-written in amended form, a matter of significance, owing to the deleted reference in the original version to a response by the appellant that a Ms. Sheila Grew was the sister of his wife and that a connection between the appellant and Ms. Grew could be seen as constituting a basis for implicating him further in the design and execution of the Omagh bombing.
The critical point, the appellant submitted, was: why, if this question had been asked and answered by him in the manner suggested, and as it appears on the ESDA printout, would he say that Sheila Grew was his wife's sister when such was patently not the case? There must, it was submitted, be an inescapable inference that he never said any such thing, that the question and answer were concocted and that the two officers, on discovering the error, set about altering the third page of the interview notes.
Such was the finding of the Special Criminal Court which, in the course of its judgment, expressed severe criticism of the two officers concerned, not least because the court believed they repeatedly lied under cross-examination to the effect that these interview notes had not been altered or changed or re-written in any way.
The critical question then fell to be determined as to the significance both of this alteration and of the evidence found to be perjured of the two officers, both for the integrity of the interviews as a whole and in terms of the consequences for the trial itself. The trial court dealt with this issue at the close of the prosecution case by declining a request for a direction but by excising the evidence and interview notes compiled by Detective Gardaí Donnelly and Fahy from the body of evidence to which the court would have regard. It did not find however that the behaviour of the two Gardaí tainted the conduct of other officers who formed part of the interrogation team or that there was any basis for finding that a more widespread involvement of the investigation team in these improprieties had taken place.
The Court of Criminal Appeal was urged by the appellant to follow the approach adopted both in England and in Northern Ireland in relation to the alteration by police of interview notes in criminal trials. In this regard, the court was referred to judgments in a number of cases and summarised in R v Latimer (Court of Appeal, Crim. Div., July 29th, 1992).
Counsel submitted that these cases, both individually and collectively, demonstrated that courts of appeal in England and Northern Ireland have not hesitated to intervene to quash convictions where evidence subsequently came to light that police interview notes of suspects had been altered, tampered with or rewritten.
While the Court of Criminal Appeal said it had to review the entire case in the light of the principles laid down in DPP v. Madden IR 336, a more immediate concern was to answer the question whether or not the trial court correctly declined to direct an acquittal at the end of the prosecution case when the problems concerning Gardaí Donnelly and Fahy, their altered notes and dishonest testimony (as so found by court) had been identified.
The Court of Criminal Appeal was satisfied that the alteration to the notes of one of the interviews in this case was of a nature as to raise an issue or question as to the extent to which other officers might or might not have been involved to some degree in collusion, at least to the extent of correcting the initial error and facilitating the filing of an amended third page in the notes.
The test was to determine whether, having excised the evidence which had been shown to be tainted, the case was still one in which a notional reasonable jury properly charged could convict. If not, a direction should be granted. It appeared to the court that evidence was available, by inference at least, to enable the court to consider and evaluate the issue whether or not the contamination of the Garda evidence went beyond officers Donnelly and Daly.
It said the court could have had regard not just to the absence of any positive evidence to that effect, but also to the very discontinuity betweensuccessive interviews of the accused, a fact which was emphasised by the defence during the trial. The trial court could have properly determined at the direction stage that there was evidence from which it might later decide that no collusive or improper effort to falsify interviews had occurred and that it was open to the trial court to rule as it did that there should be no direction but, at the very least, the circumstances of the case demanded that the court remind and warn itself at all times thereafter that, having excised the tainted evidence, the surviving Garda evidence would have to be evaluated in the most critical and careful manner because of the matters which had come to light. In any trial with a jury a very strong warning to this effect would have had to be given. Whether the weight ultimately attached by the court to the "discontinuities" between the admissions would, when taken in conjunction with the absence of any positive evidence of a more widespread complicity on the part of the investigation team in any wrongdoing, have been such as to enable the court be satisfied beyond reasonable doubt about the integrity of the police interviews was another matter. The Court of Criminal Appeal's concern was more with the approach adopted by the court of trial to the evidence and the self-directions which appeared from the reasoning in the judgment.
It did not consider that the court of trial brought to the issue of the possible contamination of evidence or to the evaluation of the surviving Garda evidence that degree of extra critical analysis which was warranted having regard to the development in relation to Gardaí Donnelly and Fahy. Alternatively, if the court was taking on board such concerns, the requirement to expressly adopt a critical approach on this account and to state that it was so doing did not appear on the face of the judgment. In particular, the court failed to assess, though requested to do so by the defence, the impact on the credibility of Detective Garda Hanley's evidence of criticisms made of him in the course of the judgment of the Special Criminal Court in the case of DPP v. Gilligan (Unreported, Special Criminal Court, March 5th, 2001), and to place that in the balance when assessing the police evidence as a whole. Instead the court simply made findings as matters of probability about the police evidence which were based on speculation and not on evidence. The Court of Criminal Appeal believed that the court of trial misdirected itself by having regard to possible explanations for which there was no evidence in support and for failing to give due consideration to other evidence and circumstances which might have provided a proper foundation for the conclusion arrived at by the court. By favouring one scenario for which there was no evidence, the court's approach was the very opposite of the more critical approach which the particular circumstances of this case demanded. The Court of Criminal Appeal felt compelled for that reason to set aside the conviction as unsafe.
It was undeniable, according to the Court of Criminal Appeal, that the court of trial had regard to the accused's previous convictions, although the accused had not himself given evidence or put his own "good character" in issue and the case did not come within any of the exceptions detailed in section 1(f) of the Criminal Justice (Evidence) Act 1924. The court began this portion of its review, therefore, by attempting, to identify from what source or sources the court of trial derived that information.
There was at the outset of the case a lengthy voir dire concerning the legality of the arrest and detention of the appellant. During the course of that evidence, hearsay evidence was given about the accused's previous convictions and suspicions held by the arresting officer as to his membership of unlawful organisations. It formed part of the antecedent history of the accused to which the arresting officer could direct his mind, but this material was never to be regarded as admissible against the accused once the trial proper resumed at the conclusion of the voir dire hearing.
Assuming the court did not derive the material from the voir dire, a review of the transcript by the Court of Criminal Appeal revealed only one other possible source for the material upon which the court of trial based its findings which was to be found in the transcripts of days 12 and 13 of the trial where counsel asked certain questions of a Garda witness concerning his knowledge of the appellant.
To have regard to previous convictions in respect of which no admissible evidence was tendered and where no grounds for doing so were established could only be seen as a significant erosion of the presumption of innocence, whether couched in terms which went to corroboration or in terms which suggest that previous convictions are probative in some way of the guilt of an accused person in relation to a specific offence. While this was not a jury trial where the risk of prejudice would be glaringly obvious, it was impossible to avoid the conclusion, the Court of Criminal Appeal said, that the previous convictions and bad character of the accused (as so found by the court) formed a significant element in the court's decision to convict, even though the court at a later point in its judgment indicated it was satisfied to convict on the basis of the admissions of the accused alone.
Referring to its decisions in Attorney General v Stephens 1 Frewen 12; The People (Attorney General) v Havlin 1 Frewen 132; People (Attorney General) v Goulding 1 Frewen 292; The People (Attorney General) v Mohangi 1 Frewen 297; The People (DPP) v Cull 2 Frewen 36 and DPP v Ferris, (Unreported, Court of Criminal Appeal, June 10th, 2002), the Court of Criminal Appeal said that there was a consistent line of authority to the effect that a conviction was unsafe where evidence of previous convictions has been improperly introduced.
It concluded that the court of trial fell into error in relying upon either the material contained in the voir dire or in counsel's questions to admit as probative evidence which was manifestly inadmissible. The Court of Criminal Appeal was, therefore, of the view that the conviction of the appellant was unsafe and unsatisfactory for that reason also.
The Court of Criminal Appeal therefore set aside the appellant's conviction on the two grounds successfully argued and directed a re-trial.
Solicitors: Michael E Hanahoe (Dublin ) for the appellant; Chief Prosecution Solicitor for the respondent.
Paul Christopher, Barrister