The Court of Criminal Appeal has refused Kenneth Donohue’s application for a certificate allowing him to appeal to the Supreme Court over the trial court’s examination of material withheld from the defence.
The application concerned whether receiving and examining material about an accused, without the accused or his advisers knowing about it, was consistent with fair-trial guarantees under Article 6 of the European Convention on Human Rights and Article 38 of the Constitution.
Donohue and co-accused Niall Binead were convicted by the Special Criminal Court on 18 November 2004 of membership of an unlawful organisation, identified in the judgment as the IRA. Donohue was sentenced to four years in prison. The Court of Criminal Appeal refused his application for leave to appeal against conviction in a decision dated 28 November 2006.
In the subsequent certificate application, Donohue argued that the trial judges should not have examined documents said to underpin a Chief Superintendent’s belief evidence. His counsel submitted that the material should either have been disclosed to the defence or withdrawn from the prosecution case, and that only a judge independent of the trial court should have reviewed it. The prosecution argued that the trial judges’ approach was consistent with Irish and European case law.
The Court of Criminal Appeal said the trial judges had heard argument about disclosure and whether the witness could give evidence if its sources could not be questioned. They reviewed the documentation and concluded it provided adequate and reliable information for the witness’s opinion, with nothing in it that would assist the defence. The appeal court said it was not making findings on the correctness of the trial judges’ observations about trial fairness, but considered their review approach within the bounds of relevant case law.
The appeal court also recorded that the trial judges said they would not convict on the Chief Superintendent’s evidence alone, but only if it was supported by other evidence. It rejected the claim that the withheld documents were determinative of guilt or innocence.
The court’s decision was limited to whether to certify a further appeal under section 29 of the Courts of Justice Act 1924. It concluded Donohue had not shown that its earlier decision involved a point of law of exceptional public importance or that a Supreme Court appeal was desirable in the public interest. The certificate application was refused. The judgment did not reopen the convictions or sentence.