Lawyers for IRA man 'not notified of parts of Superintendant's evidence'

Lawyers for a Dublin man who was jailed for five years for IRA membership were not notified of parts of the belief evidence of a garda Chief Superintendant that helped convict him, the Court of Criminal Appeal has heard.

The three-judge court today heard submissions in an appeal against conviction brought by Sean Farrell (aged 27), who in May last year was jailed for five years by the non-jury Special Criminal Court after it found him guilty of membership of the IRA.

Farrell, with a last address at Kilfenora Road, Crumlin, had pleaded not guilty to membership of an unlawful organisation within the State namely Oglaigh na hÉireann, otherwise the Irish Republican Army, otherwise the IRA on July 7, 2011.

During the trial, the court heard the belief evidence of Chief Superintendant Diarmuid O’Sullivan that Farrell was a member of the IRA on that date.

In its judgement the non-jury court found that the belief evidence of Chief Supt O' Sullivan was corroborated by Farrell's failure to answer questions material to the investigation of the offence in interview with gardaí.

There was also evidence that fingerprint marks from a black plastic bag used to wrap a sawn-off shotgun found by gardaí after a search of a one-bedroom flat on Bride Road in Dublin 8 matched the fingerprint of Sean Farrell.

Counsel for Farrell, Mr Padraig Dwyer SC, told the appeal court that the application would be directed primarily at the absence of notice given to the defence regarding elements of the belief evidence of Chief Supt O’Sullivan.

He said the defence was not on notice of evidence that Chief Supt O’Sullivan was basing his belief on a number of sources, including “technical information”, and that he was aware of a “litany of incidents” that confirmed Farrell had been an active service member of the IRA for a number of years.

Mr Dwyer submitted the court should also not have accepted the belief evidence of Chief Supt O’Sullivan as he was not independent of the investigation that led to the prosecution of Farrell.

He said the Special Criminal Court erred in excluding from its consideration a question on IRA membership put to Farrell during his garda interviews, having concluded it related to the substantive charge and was not a question material to the investigation of the offence.

Mr Dwyer said there was also a risk the trial court treated Farrell’s reply of “I am not a member of any illegal organisation” as tantamount to an admission of membership because it remarked this was a “well known mantra” used by members of the IRA in custody.

The trial court heard evidence that the accused man repeatedly answered “no comment” to material questions put to him by detectives in a series of interviews conducted at Terenure Garda Station on July 8, 2011.

Farrell had been informed by gardaí that a judge or jury could draw certain inferences from an accused person’s failure or refusal to answer material questions relating to the investigation of the offence and may regard evidence of this as corroborative of other evidence against the accused person.

Counsel for the State, Mr Michael Bowman BL, said the defence failed to raise an objection to the evidence of Chief Supt O’Sullivan during the trial and took the “tactical decision” not to challenge it so it could be raised during an application to have the trial found unfair and latterly on appeal.

He said that Farrell told gardaí he was not a member of an illegal organisation in reply to one sole question out of six interviews with gardaí, where he otherwise answered “no comment” to material questions put to him by detectives.

Mr Bowman said the court should note gardaí had asked Farrell whether he was a member of the IRA, otherwise Oglaigh na hÉireann, otherwise the Irish Republican Army, making no reference to an illegal organisation in their question.

He said Farrell’s denial that he was a member of an illegal organisation was neither a failure nor a refusal to answer a question material to the investigation of the offence and ordinarily would not be considered by a court in its judgement on the charge.

Presiding judge Mr Justice Adrian Hardiman said the “realistic thing” to do was to reserve judgment and return “as quickly as possible” having regard to the commitments of the appeal court and other courts.