Special Criminal Court
A Dundalk man has been acquitted of IRA membership after the Special Criminal Court found it could not rely on the belief evidence of a Garda Assistant Commissioner as being independent from the investigation.
Michael Connolly (47) of Grange Drive in Dundalk, County Louth, had pleaded not guilty to membership of an unlawful organisation, styling itself Oglaigh na hEireann, otherwise the Irish Republican Army, otherwise the IRA on December 16, 2014.
It was the prosecution’s case that Mr Connolly was observed by Gardaí driving in convoy with another man, who was then found with two improvised explosive devices (IEDs).
Delivering judgment today, Mr Justice Paul Coffey, presiding, sitting with Judge Sinéad Ní Chúlacháin and Judge James Faughnan, said that the court could not be satisfied that the belief evidence given by Garda Assistant Commissioner Michael O’Sullivan was independent of the evidence upon which the prosecution relied on in order to support that belief.
“We cannot have the confidence that we would need beyond a reasonable doubt that the Assistant Commissioner did not base his belief on the events of December 16,” said the judge.
The defence contended that events arising from the date in question was not independent evidence and fell foul of the rule against double counting, said Mr Justice Coffey.
He said that the onus was on the prosecution to produce “clear and unambiguous” evidence that the officer is cognisant of the rule against double counting.
During the course of the trial, the Special Criminal Court at the request of the defence, assessed the materials reviewed by the Assistant Commissioner when forming his belief. Ultimately, this review led to the court directing the provision of a document to the defence and a formal admission from the prosecution in evidence that this document related to December 16, 2014 and was contained on the Ass Comm's materials.
Mr Justice Coffey also said today that the accused man’s failure to answer questions during his section 2 interviews were indiscriminately linked to the materiality of the events and could not be considered as independent evidence. The association evidence did not provide independent evidence either, he noted.
In his closing speech, prosecuting counsel Paul Burns SC said that the prosecution’s case against the accused man could be divided into a number of strands.
Mr Burns said these included the belief evidence of Gda Asst Comm Michael O’Sullivan, the circumstances of December 16, the inferences to be drawn from Mr Connolly’s failure to answer material questions during his detention and finally association evidence where Mr Connolly was sighted at three public gatherings with people previously convicted by the Special Criminal Court.
The barrister outlined that the three-judge court could not convict Mr Connolly on the membership charge unless it accepted the belief evidence and it was further supported by other evidence.
Gda Asst Comm O'Sullivan had testified that Mr Connolly was a member of the IRA on the day in question and said his opinion was based on confidential material, said Mr Burns.
The witness maintained that he did not have any prior knowledge of the defendant and had claimed privilege in relation to the tradecraft used as it could inhibit ongoing and future operations.
Mr Burns said there had been a “prearranged plan” involving a number of persons to transport these devices and Mr Connolly was a “significant part of that plan”.
The conduct of the accused man on December 16, 2014, Mr Burns said, was “entirely consistent with and supportive of” him being a member of an unlawful organisation.
Furthermore, the barrister said that significant weight could be given to the Gda Ass Comm O’Sullivan’s belief based on the rank and seniority of the officer as well as the fact that he had not engaged in “any form of rubber stamping exercise” but rather approached it with “care and responsibility”.
Mr Burns said that the court could not convict on the basis of belief evidence alone and that there must be other independent supporting evidence. Mr Burns said that the accused man’s failure to answer questions during his section 2 interviews provided such independent supporting evidence.
“He was given a reasonable opportunity to prove an explanation as to those matters raised which would not implicate him as a member of the IRA but adopted a position of silence,” he said.
In his closing speech, defence counsel Hugh Hartnett SC called Gda Asst Comm O'Sullivan’s opinion “weak”. “There was a significant reduction in the ability to cross-examine because of claims of privilege, some of them I say improperly made,” submitted Mr Hartnett, adding that no material was presented to the court which would have allowed it to address the strength or weakness of the opinion and therefore it must be seen as a weak opinion.
Furthermore, Mr Hartnett said that the refusal of the Asst Comm to answer even the simplest of questions had “a profound disabling effect” on the ability to defend the case.
Mr Harnett argued that there was “no evidence whatsoever” to connect his client with the material found in the other man’s car. “If there was he would have been charged with possession,” he added.
Mr Connolly represented by Hugh Hartnett SC with Philip Rahn BL and instructed by David Thompson of Michael Finucane Solicitors was previously convicted by a different three-judge panel at the Special Criminal Court in June 2017 of the same offence and sentenced to three years imprisonment.
His conviction was overturned by the Court of Appeal in June 2018 and the current retrial was ordered.
Following his acquittal this morning, Mr Connolly walked free from court.