The Court of Criminal Appeal has dismissed appeals by Desmond Donnelly, Gerard McGarrigle and James Murphy against their convictions for membership of an unlawful organisation.
The men were convicted by the Special Criminal Court on 24 November 2010 under section 21 of the Offences Against the State Act 1939. The appeal judgment, delivered by O’Donnell J. on 30 July 2012, rejected challenges to McGarrigle’s arrest and to the fairness of the trial, including the use of a senior Garda officer’s belief evidence and inferences drawn from the men’s failure to answer questions.
The convictions followed a checkpoint stop near Oldtown Bridge, Oldtown, Letterkenny, in the early hours of 22 February 2010. The three appellants were among four men in a car. Gardaí found cable ties during an initial inspection; a later search also found gloves, an imitation firearm, a beanie hat and black bin liners. The Special Criminal Court said suspicions about the items might be well-founded, but it had not been established beyond reasonable doubt that they were connected to a plot.
The prosecution case included evidence from a chief superintendent, who said he believed the appellants were members of Óglaigh na hÉireann. The trial court accepted that evidence but said it would not convict on that evidence alone without independent corroboration. It also found that the men had failed to answer material questions in interviews and that those failures could support inferences and corroborate other evidence.
McGarrigle argued that his arrest was unlawful, including because the arresting officer lacked the required suspicion and did not adequately state the grounds. The appeal court found the evidence supported the trial court’s conclusion that he was arrested for membership of an unlawful organisation and that this was communicated to him at the time. Those grounds failed.
The appellants also argued that the combination of belief evidence, informer privilege and inferences from silence breached fair-trial rights. The appeal court held that the combination did not make this trial unfair. It said the statutory power allowed, but did not require, a court to draw proper inferences from a failure to answer material questions; guilt did not follow automatically. In this case, it concluded, the trial court was entitled to draw the inferences it did, considering the unanswered questions alongside the belief evidence and the unexplained items and circumstances surrounding the car.
The court therefore dismissed the appeals. The judgment did not set aside the convictions.