Court of Appeal affirms acquittal of man accused of extortion alongside former Senator

About this case:

• Judgment:
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The Director of Public Prosecutions sought an order directing a retrial of the man on the basis that the trial judge erred in law in excluding compelling evidence, however the Court of Appeal found that while the judge was incorrect to exclude the evidence, it could not be defined as “compelling” in isolation.

Background

In October 2015, at Monaghan Circuit Court, RMcC was acquitted by direction of the trial judge of a charge of blackmail, extortion and demanding money with menaces contrary to s. 17 of the Criminal Justice (Public Order) Act 1994.

The Director of Public Prosecutions applied to the Court of Appeal seeking an order quashing the acquittal by direction, determining that the trial judge erred in law in excluding compelling evidence within the meaning of s. 23(14) of the Criminal Procedure Act 2010 and an order directing that the accused be retried for the offence charged.

The Court heard that the victim, Mr Michael Heelan was a veterinary inspector with “a controversial history of waste disposal”, and in 2011, Louth County Council took a view that he had been involved in illegal dumping.

Fearing that the matter would be investigated by the Department of Agriculture and that this could affect his employment, in January 2012, Mr Heelan then sought the assistance of a local politician, Mr Francis O’Brien, who had been a member of Seanad Éireann,

Thereafter in April 2012, on false pretences Mr O’Brien contacted Mr Heelan to say that more products unlawfully dumped had been discovered – but that on receipt of a sum of money in the region of €60,000, Mr O’Brien could ensure that Mr Heelin didn’t lost his job

Mr Heelan then reported the matter to the Gardaí and an investigation into the matter was opened. Upon meeting Mr O’Brien on 27th April 2012, Mr Heelan was wearing a monitoring/recording surveillance device with which he had been supplied by Gardaí and Gardaí were listening in from Garda headquarters in Dublin. Mr Heelan got into Mr. O’Brien’s car on his invitation, and Mr O’Brien made a phone call using the car’s Bluetooth device to RMcC, who directed Mr O’Brien to a particular shed in which there were bags containing his needles, blood bottles and veterinary items.

Shortly after, members of An Garda Síochána intervened and arrested Mr O’Brien.

Charges were preferred against the respondent RMcC, against Mr O’Brien and against a third man Mr. Marron. The cases of Mr. O’Brien and Mr. Marron were disposed of before Mr R.McC’s case came on for trial.

Surveillance inadmissible

The issue that gave rise to controversy was that the device picked up not just what was being said by the occupants of the car to each other but also picked up what was being said by Mr O’Brien and RMcC on the call.

The surveillance operation had been authorised by a judge of the District Court to whom an application had been made pursuant to the provisions of the Criminal Justice (Surveillance) Act 2009.

On behalf of Mr RMcC, it was contended that the authorisation issued in the District Court did not grant carte blanche to An Garda Síochána, and that the circumstances in which surveillance devices can be used by An Garda Síochána are strictly delineated by the terms of the authorisation and the Criminal Justice (Surveillance) Act 2009.

Furthermore, RMcC argued that there can be no doubt that the surveillance device was used to engage in activity that constituted an interception within the meaning of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.

Consequently, the trial judge excluded the telephone conversation which was audible in the car that Mr O’Brien and Mr Heelan were travelling. The prosecution then failed to admit any further evidence, and the jury was therefore directed to acquit RMcC.

Compelling evidence

Delivering the judgment of the Court of Appeal, Mr Justice George Birmingham stated that the Court did not agree with the trial judge that what occurred was an interception or that the evidence sought to be put before the Court was inadmissible.

“While the issue that the judge was required to consider was an unusual one and perhaps not one that fell neatly within any of the statutory provisions it is in fact the case that there was no attempt on the part of the Gardaí to intervene, or to involve themselves in any way in the conversation between Mr. O’Brien and the person that he called. There was in fact no actual interference or involvement with that call, there was no interception of the call”.

However, where no other evidence was actually adduced and in particular where the complainant and injured party was never called to give evidence, Justice Birmingham added that, with regret, it was “difficult to say that the evidence excluded which now had to be taken in isolation could be regarded as compelling evidence. Without evidence from the injured party it is hard to see how the evidence in relation to the phone conversation, even if supported by evidence of contact between relevant phones, would or could have been sufficient”.

Justice Birmingham stated that “were it not for the issue in relation to whether the evidence excluded can truly be said to be compelling evidence, the Court would have been prepared to hold with the Director of Public Prosecutions”.

However, due to the definition of compelling evidence the Court was unable to accede to the application by the DPP and affirmed the acquittal pursuant to s. 23(11)(b) of the Criminal Procedure Act 2010.