DPP -v- Mark Doran
Court of Criminal Appeal
Judgment was delivered on July 31st, 2009 by Ms Justice Fidelma Macken, sitting with Mr Justice Roderick Murphy and Ms Justice Elizabeth Dunne.
Judgment
The conviction of the appellant on a charge of membership of the IRA was quashed and a retrial was ordered.
Background
Mr Doran lived and worked in the village of Leighlinbridge, Co Kilkenny, where he was the bar manager in the local hotel.
He knew a man called Patrick Dermody, who was arrested and convicted of possession of a firearm and membership of the IRA shortly before the appellants arrest. Both the apartment where Doran lived with his sister and her boyfriend and his locker at work were searched.
He was charged with membership of the IRA and convicted in the Special Criminal Court shortly after the trial of Dermody.
Mr Doran’s appeal against conviction covered five issues: the court went outside the scope of the evidence in relying on evidence given in a separate trial; it relied on phone contacts as evidence from which adverse inferences could be drawn when these demonstrated nothing more than mere contact;
it concluded that his responses to questions about the phone contacts were inconsistent with any innocent explanation; it concluded that these answers fell within the definition of those from which adverse inferences could be drawn and it concluded that they could be used to corroborate the belief evidence of a chief superintendent.
The court first examined the belief evidence of Chief Supt Michael Byrnes, in the context of the Offences Against the State Act, as amended, which permits a garda not below the rank of chief superintendent to give evidence of his belief that an accused is a member of an illegal organisation.
Chief Supt Byrnes gave evidence that he believed Mark Doran to be a member of an illegal organisation.
The Special Criminal Court judgment referred to evidence from the chief superintendent about an investigation in the Carlow/Kilkenny area.
However, Ms Justice Macken pointed out that he did not give such evidence.
This was given by a Supt O’Sullivan, whose evidence did not have the statutory status accorded to that of Chief Supt Byrnes, and it was given in the trial of Patrick Dermody.
She said that, by eliding the evidence of Chief Supt Byrnes and Supt O’Sullivan and elevating it by ascribing it to Chief Supt Byrnes, the court fell into error.
The judge said that she accepted the view of counsel for the applicant that there was no evidence of association between the appellant and the people, other than Dermody, under surveillance prior to the arrest of Dermody.
The only evidence of any association between the appellant and those under surveillance was the evidence he had given himself of a friendship with Dermody, arising out of the fact that they lived in the same small village and socialised in the same hotel and pubs.
The court also heard there had been 51 mobile phone calls over a nine-day period between the applicant and Dermody, 17 of them originating with the applicant.
The trial court found he had been “untruthful and evasive” in relation to these contacts.
Ms Justice Dunne said that the applicant’s responses during interview were not inconsistent with the circumstances of him knowing Dermody.
No evidence was found either at the apartment or at his place of work to associate him with the gun found or the events leading to it being found.
The prosecution was relying on a series of telephone contacts during the period in question to corroborate the belief evidence of the chief superintendent.
“Mere telephone contact between the applicant and Dermody cannot, without more, constitute in the face of an openly acknowledged friendship, corroboration of the belief evidence,” Ms Justice Dunne added.
Evidence had also been adduced concerned items found in the applicant’s bedroom, including documents concerning Army rules and manoeuvres, a jumper, beret and trousers, which, although openly available to purchase, could have been used as a military uniform.
He openly admitted ownership of them and said he had a general interest in the military and had been a junior member of Fianna Éireann, which is not a proscribed organisation.
These were presented as further corroborating evidence.
While the items “are clearly troubling material”, she said, it would be inappropriate to make any further findings in relation to them.
Decision
The court was not satisfied that it had been established that Mr Doran was guilty of the charge against him and set aside the conviction, ordering a new trial.
The full judgment is on www.courts.ie
John O’Kelly SC and Colman Cody BL, instructed by Fleming and O’Flaherty, Solicitors, Carlow, for the applicant; Tom O’Connell SC and Damien Colgan BL, instructed by the Chief Prosecution Solicitor, for the Director of Public Prosecutions.