[2016 CCAOT0084]
[2008 SC 0001]
The President
Sheehan J.
Edwards J.
BETWEEN
THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
APPELLANT
JUDGMENT of the President delivered 30th January 2017
Introduction
1. This is an appeal by the accused, Thomas Murphy, against his conviction by the Special Criminal Court on 17th December 2015 on nine offences alleging that, being a chargeable person, he failed to make Income Tax returns for the years between 1996 and 2004. Counts 1 to 4 in the indictment allege that he failed to make the returns without reasonable excuse contrary to s. 10 of the Finance Act 1988. Counts 5 to 9 are brought under s. 951 of the Taxes Consolidation Act 1997 and allege that the accused failed to make the returns knowingly or wilfully. The accused was sentenced to 18 months imprisonment on each count to run concurrently and is serving those sentences at present. Although the notice of appeal also seeks to challenge the sentence, at the hearing at present the court is dealing only with conviction and the sentence appeal is in abeyance for the present.
The Prosecution’s Case Generally
2. The prosecution submitted that it had to prove beyond reasonable doubt that (1) the accused was a chargeable person in respect of each of the periods specified in the indictment counts; (2) that he had failed to make returns as required by law within the requisite time and and (3) that he had failed to do so without reasonable excuse in relation to Counts 1 to 4 inclusive and knowingly or wilfully in relation to Counts 5 to 9 inclusive.
3. It was submitted that the case in essence was and remained a relatively straightforward one. It was not disputed that a substantial cattle trade was carried out in the name of Thomas Murphy of Ballybinaby, Hacksballscross, County Louth; that monies generated from that trade went into the bank account in the name of the accused and that a pension policy, personally incepted by him, was funded from that bank account. It was not seriously contested that the accused had failed to make the appropriate returns in respect of the relevant periods. Ultimately, the case came down to whether or not the prosecution had proven beyond a reasonable doubt that the accused was a chargeable person in respect of that cattle trade.
4. Evidence at the trial included (the name of the witness in brackets):
(a) Herd No. 0127124X (the 24X herd) was registered to the appellant (Grainne Dalton); sales and purchases of cattle took place in relation to the herd in the name of the appellant (mart and factory witnesses) and application forms and documents associated with the registration of the Herd No. showed it to have been in the name of the appellant (Larry Cashman).
(b) An account in the appellant’s name was held with Permanent TSB, which considered him to be entitled to the money in the account; money lodged to the account included sums generated by dealings in respect of the 24X herd (Charles McCarthy, Chartered Accountant); payment orders were made by the Paymaster General in respect of the 24X herd payable to Thomas Murphy and such payments were lodged into the account (Niall McKeown, Patrick O’Hara, Chartered Accountant, Charles McCarthy); money from the account was used to service the appellant’s pension investment (Charles McCarthy, Jim Duffy, Chartered Accountant); whether another person lodged money to the account or effected withdrawals from it (if such was the case) did not affect the entitlement to the monies (Charles McCarthy).
(c) Patrick Flanagan, a veterinary surgeon, gave evidence of the involvement of the appellant in cattle farming.
(d) Brian Garvey, a farmer, rented land to the appellant for cattle farming.
(e) Evidence from a forensic accountant with the Criminal Assets Bureau in respect of books and records showing the appellant’s involvement in a farming business( Chartered Accountant).
(f) Certificate and oral evidence from an Inspector of Taxes (“Revenue Bureau Officer 35”) that the appellant was a chargeable person and that he had not made returns for the relevant periods.
5. Turning to the appellant’s case, the prosecution submitted that he put forward a positive defence that the cattle trade in the name of Thomas Murphy had in fact been carried out by his brother, Patrick Murphy, and that Patrick Murphy was the chargeable person in respect thereof and not Thomas Murphy. However, it was submitted that the defence never really addressed the point that, irrespective of Patrick Murphy, Thomas Murphy was a chargeable person in respect of the cattle trade in question if he was receiving or entitled to receive income from same. The submissions say that the essence of the defence case may be seen in questions and submissions by Counsel for the appellant during the trial, as follows for example.
“. . . the person in control of this account, that’s Patrick Murphy we say, was using this account as a vehicle of convenience to enable him to lodge cattle cheques made out to Thomas Murphy and empty that account in big round figures of the money that had gone in through these cheques. And I'm suggesting to you when we go through the statements that you will see that that is the pattern.” (Day 89 [reference], Page 30, Line 33)
. . . Patrick Murphy established this account back in the day, apparently when there are no records retained. I'm saying that Patrick Murphy ran this account from its inception until its death and I'm saying that Patrick Murphy is the person who entered that bank on every single occasion -
MR JUSTICE BUTLER: And signed them -- passed himself off as T Murphy?
MR KEARNEY: Absolutely passed himself off. Absolutely, Judge. Now -- well, sorry, I'm saying” - (Day 9, Pg 72, Line 34-73, Line 7)
And Also MR BURNS: No, no, I'm just not clear what my friend is saying about one particular thing and I appreciate my friend doesn't have to say anything if he doesn't want to, but, given that he has engaged in this process, is he saying that Patrick Murphy signed the cheques? Is that what he is saying?
MR KEARNEY: No.
MR BURNS: You see, it's --
MR JUSTICE BUTLER: Well, I asked -- that's specifically what I asked.
MR KEARNEY: No, no, I'm saying he ran the account. That's exactly what I'm saying.
MR BURNS: I don't know what that means.
MR JUSTICE BUTLER: I specifically asked did Patrick Murphy sign the cheques from page 161 to page 189.
MR KEARNEY: I have never put that fact to any witness in this case. I've never done that.
MR JUSTICE BUTLER: I only asked. So now the answer is no, or I don't know.
MR KEARNEY: No, no, there's an issue for the prosecution in the case as to whether they prove their case or not, Judge, but I have never put that case at any time. I've never put that case, never done that.” (Day 9, Pg 79, Lines 2-14)
“Now what I want to suggest to you is that these prosecution papers, these chequebooks uplifted in search product in March of 2006, suggest, I am suggesting to you, that a process was in play whereby Thomas Murphy was asked to sign blank cheques for his brother Patrick who controlled the cheque book and the account … which seems to have been originally born to feed direct debits for insurance …” (Day 9, Pg 91, Lines 19-24)
and
“At what I want to suggest to you that is - - the presence of these blank but pre-signed blank cheques is a clear indicator of the ceding of control of that account to Patrick Murphy” (Day 9, Pg 91, Lines 26-28).
and
“Well, what I want to suggest to you, in fact, Mr. Accountant is that for this big Murphy farm run by Patrick Murphy, every single shilling of tax due and owing was paid by Patrick Murphy either at the time or when CAB pursued him through the civil - - civil side and negotiated with him for this Murphy farming operation; isn’t that right?” (Day 13, Pg 73, Line 30).
6. It is argued that these narratives did not address the issue that a number of persons could be chargeable in respect of a trade or trades if they were receiving or entitled to receive income from same, and so those persons would be required to make returns, as indeed did Patrick Murphy, Rosemary Murphy and Frank Murphy, and accordingly, the weight placed on these narratives by the appellant was and is misplaced.
7. The prosecution contends that the central misconception of the defence is that a chargeable person had to be either Thomas Murphy or Patrick Murphy, and that if there was a reasonable possibility that Patrick Murphy was a chargeable person in respect of the cattle trade, that it therefore followed that there had to be a reasonable doubt as to whether Thomas Murphy was a chargeable person in respect of the said trade. This, however, does not follow. Any number of persons may be chargeable persons in respect of a particular trade provided they are in receipt of or entitled to income from that trade.
8. It is submitted that the court did not admit any evidence which ought properly to have been excluded, and on the basis of the evidence adduced, the court was entitled to and did come to the conclusion that it was satisfied beyond a reasonable doubt as to the guilt of the accused.
9. The court, in dealing with the relatively straightforward ultimate issue in dispute viz whether or not the Accused was a chargeable person, set out sufficient reasoning for its verdict.
The Appellant’s Case Generally
10. The court erred in admissibility rulings and in its decisions at direction and verdict. Had the evidence been ruled inadmissible, the residual circumstantial evidence would not have been sufficient to carry a conviction.
11. The court failed to provide any adequate reasons for its decisions, including the ultimate verdict of guilt, which hampers any effective appellate analysis of those decisions and to be confident that the court properly assessed the relevant facts and applied appropriate legal principles; the only legitimate conclusion is that the appellant was denied a fair trial and that his convictions should be immediately quashed.
12. Although there are many overlapping matters, the core arguments may be broken down as follows:-
(a) The court’s rulings admitting into evidence the written statements of Brian Garvey and Patrick Flanagan pursuant to s.16 of the Criminal Justice Act, 2006.
(b) The weight attached by the court to the adduced statements of Brian Garvey and Patrick Flanagan at direction and verdict stages.
(c) The court’s ruling to admit the certificates and oral evidence of Revenue Bureau Officer 35 (hereinafter RBO35) into evidence.
(d) The court’s possible deployment of the statutory “documentary presumptions” to some, any or all of the documents in this case, including the Court’s misuse of the corroboration principles.
(e) The court’s possible deployment of the statutory “certificate presumptions,” including the Court’s misguided misapplication of the corroboration principles, in this case.
(f) The court’s alleged failure to apply the circumstantial principles relating to the burden and standard of proof in this circumstantial case.
(g) Alleged specific failings relating to the court’s direction ruling.
(h) Alleged specific failings relating to the court’s verdict.
13. Patrick Murphy was in sole and exclusive control of a single Murphy farming enterprise based at Ballybinaby, comprising his herd (the 160 herd) until 1991 and then two herds when the 24X Herd No. came into existence; subsequently, when the 259 herd was created, he operated one unit incorporating all three herds, which he did throughout the time period of the charges and beyond. Patrick Murphy was “the chargeable person” in respect of the 24X herd who was required to make the declaration of profits and payment of taxes on the farming activity of the single tripartite enterprise. He was responsible for all of the running of the farm and administration, including dealings with the 24 X herd and the bank account in Thomas Murphy’s name.
14. The appellant was not in receipt of or entitled to the receipts from the 24X Herd No. Although he may on occasion have been around the farm in Ballybinaby, that is consistent with one member of an extended farming family lending a hand to another and was not sufficient to prove that he was “the chargeable person” or “a chargeable person” in receipt of or entitled to profits from the 24X herd.
15. The appellant’s alternative case was based on:
(a) Establishing reasonable doubt about the authorship of the relevant documents and/or signatures and to the reasonably possible existence of forgery at the hand of Patrick Murphy and others, so as to displace the documentary presumptions and the Certificate presumptions (which were almost exclusively based on the documentary presumptions); that was achieved through cross-examination of witnesses;
(b) introduction of exhibits,
(c) adducing expert evidence;
(d) making submissions on the state of the evidence at direction and closing stages and
(e) Establishing equally valid and viable alternative inferences arising from the same documentary evidence.
16. It was submitted that the prosecution was unable to dispel a reasonable doubt concerning the authorship of the relevant documentation and therefore the presumptions could not apply.
17. The evidence of Brian Garvey, Patrick Flanagan and Pat Rafferty could also not support the prosecution case as the documentary materials either were unable to bolster their evidence and/or instead favoured the appellant’s contentions.
The Judgment of the Special Criminal Court
18. The court found that the accused was guilty for reasons which it held were sufficient taken individually and also as a whole. The particular reasons were as follows:
(i) The court held that the accused applied for and obtained a Herd Number from the Department of Agriculture and Food. A letter from the accused’s solicitors accompanying the application confirmed his ownership of land. This was based on the evidence of Mr. Patrick Rafferty.
(ii) Statements made by Messrs. Brian Garvey and Patrick Flanagan under section 16 of the Criminal Justice Act, 2006 constituted evidence which “represents the true state of affairs, namely, that Thomas Murphy was carrying on a cattle farming and dealing business”.
(iii) A bank account was opened in the name of the accused and the court held that, at least to some extent, it was operated by the accused to his benefit, including payments into his personal pension fund.
(iv) The court found that other documents also established the case that the accused was a chargeable person - these included applications for various money payments, cheques and payment orders, records of transactions with cattle marts and meat processing plants.
(v) Evidence from a Chartered Accountant confirmed that a record known as the MGO book - described as NGO in the judgment—disclosed transactions in the Murphy herds related to particular herd owners including the accused.
(vi) The court held that its findings on the other documents and matters were corroborative of certificates given by a Revenue Bureau Officer under s. 951(10) of the Taxes Consolidation Act 1987. He also gave evidence of having examined all the relevant documents and the court, by implication, accepted that evidence.
(vii) The court referred to the defence case that it was not the accused who was engaged in farming activity but that one farm involving a number of herds kept together , including the one in the name of the accused, was run by his brother Patrick and that “forgery was afoot” in that “in the case of a number of the documents referred to Patrick Murphy signed the same in the name of Thomas Murphy.” While the defence handwriting expert found a number of questioned signatures not to have been signed by the accused, he also found some to be genuine and in respect of 30 cheques drawn on his account and signed “T Murphy”, which were not submitted for examination, the court found that they were signed by him.
(viii) Finally, the court referred to the defence submission that Patrick Murphy was the chargeable person, finding that Patrick Murphy was a chargeable person but that did not relieve or remove the accused from the character of a chargeable person because that did not “in any way negate the findings in relation to the accused’s farming activities at the material times.”
The Appeal
19. The notice of appeal contains 53 grounds, some of which are general and/or repetitious. The written submissions in the case are daunting. The appellant’s submissions extend to over 350 pages and the Director’s submissions are in excess of 100 pages. There are in addition books of exhibits for prosecution and defence. This judgment sets out Discussion of the appeal by reference to the judgment of the Special Criminal Court in the following order:
(a) the testimony of Patrick Rafferty;
(b) the s.16 applications relating to Brian Garvey and Patrick Flanagan;
(c) the analysis by the chartered accountant of relevant documents including those obtained following a search;
(d) the testimony of Revenue Bureau Officer 35 on the issuing of tax certificates;
(e) the Appellant’s handwriting expert, Stephen Cosslett;
(f) the adequacy of the trial court’s judgment;
(g) other the grounds of appeal.
The Court’s Approach to the Appeal
20. The Court of Criminal Appeal held in People (DPP) v. Madden and Others [1977] 1 I.R. 336 that in exercising its functions as an appellate court from decisions of the Special Criminal Court, it should apply the statement of principle by Holmes L.J. in his judgment delivered in the Court of Appeal in The S.S. Gairloch [1899] 2 I.R. 1 at 18 as follows:
"When a Judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite matter of fact, his finding ought not to be reversed by a Court that has not the same opportunity of seeing and hearing the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice. The same rule does not apply, at least in the same degree where the conclusion is an inference of fact. It often happens, as in the present instance, that the decisive finding is a deduction from facts hardly disputed or easily ascertained. In such a case the appellate tribunal is in as a good position for arriving at a correct conclusion as the Judge appealed from, and it would be an undue restriction of the functions of the former if it were to hold itself bound by what has been found by the latter. Of course the view of the Judge who tried the case is of the greatest weight, and for my own part I would only depart from it with much hesitation when, as here, we have not been furnished with a report or note of the judgment appealed from."
The court then set out its own approach in light of this authority:
“In the appeals now before this Court, we have transcripts of the rulings of the Special Criminal Court made in the course, and at the end, of the trial on questions of law and findings of facts in relation to the admissibility of evidence, the sufficiency or cogency of the evidence, and the reasons for the rulings and verdicts given. Therefore, subject to the grounds of appeal, it would seem to be the function of this Court to consider the conduct of the trial as disclosed in the stenographer's report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above.”
21. The Court of Criminal Appeal held that the approach to an appeal in the criminal case was similar to civil proceedings and applied the principles enunciated by the Supreme Court in Hay v. O’Grady [1992] I.R. 210 which may be adapted into questions and summarised as follows:
(i) Were the findings of fact made by the trial judge supported by credible evidence? If so, the appellate court is bound by the findings, however voluminous and apparently weighty the testimony against them.
(ii) Did the inferences of fact depend on oral evidence of recollection of fact? If so, the appeal court should be slow to substitute its own different inference.
(iii) In regard to inferences from circumstantial evidence, an appellate court is in as good a position as the trial judge in that regard. Did the judge draw erroneous inferences?
(iv) Was the conclusion of law drawn by the trial judge from a combination of primary fact and proper inference erroneous? If so, the appeal should be allowed.
(v) If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
22. A fundamental point is that this is not a reconsideration of the entire trial. The court approaches the appeal on the basis of asking whether there was evidence to support the conclusion arrived at by the trial court. It is not a matter on which the Court of Appeal exercises its own judgment afresh independently of the finding of the trial court. The approach is to identify the issue and the decision and then to ask whether there was evidence on which the court could base its finding. The test is: was there evidence on which the court was entitled to reach its conclusion? This Court does not evaluate one element or item of evidence against another. It is sufficient if there was evidence that the court relied upon. This Court cannot embark on a full re-hearing of the case with new inferences as we think fit being drawn from documentary evidence. Still less would we be entitled to re-interpret the impact of oral evidence.
23. Proof is required in a prosecution to a high standard, namely, beyond a reasonable doubt. But that standard does not amount to mathematical or philosophic certainty, assuming that such exist. It is not proof beyond the possibility of any theoretical doubt that could be considered to arise or to be possible. It is proof beyond reasonable doubt. That means proof beyond a doubt based in reason. If the doubt is fanciful or extravagant or not based in reason, it is not a reasonable doubt.
24. The central point of the appellant was that the trial court had to have a reasonable doubt because of the documentary material they put forward and their hypothesis which placed Patrick Murphy as the mastermind behind the entire affair. That is what must be analysed. The threshold of cogency of proof and of reasonable doubt was outlined in People v. Oglesby [1966] 1 I.R. 162;
“But the true question in every criminal case is whether the prosecution have proved the guilt of the accused beyond reasonable doubt…I think that the proper way in which to approach the determination of a case of receiving recently stolen goods is as follows: if the prosecution have established the fact that the defendant had possession of goods recently stolen and has given an explanation that he came by them innocently, the tribunal, whether judge, justice or jury, must consider whether the facts established admit of any reasonable construction which is consistent with the innocence of the accused. If they do, and one such construction may be that the explanation is true, he should be acquitted; if they do not, he may be convicted." [At p.166-167]
25. Further in People (DPP) v. Cronin [2003] 3 I.R. 377, the late Hardiman J. noted:
"Even if the jury disbelieved the explanation they were required also to consider whether it might reasonably be true, i.e., whether its falsity had been established beyond reasonable doubt”. [At p.383]
Hardiman J. went on to cite and uphold the judgment of Kenny J in The People (Attorney General) v. Byrne [1974] I.R. 1:
"The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused, and it is helpful if that degree of proof is contrasted with that in a civil case. It is also essential; however, that the jury should be told that the accused is entitled to the benefit of the doubt and that when two views on any part of the case are possible on the evidence, they should adopt that which is favourable to the accused unless the State has established the other beyond reasonable doubt." [At p. 9]
26. Therefore, the question for the court is whether the evidence gave rise to the interpretation as a reasonable possibility that Patrick Murphy did the things that are necessary to establish the appellant alternative narrative? It is not a matter of probability or belief, but possibility.
The Issues
27. The issues in this case may be summarised:
(a) Was the Special Criminal Court entitled to come to the conclusions that it set out in its judgment and find the accused guilty accordingly?
(b) Did the defence establish by cross-examination or by production of documentary material or by handwriting evidence of Mr. Stephen Cosslett that there was a reasonable doubt on the case generally or on each or any of the elements that the prosecution relied upon?
(c) Was the judgment of the SPECIAL CRIMINAL COURT, as delivered in December 2015, a satisfactory one in that it complied with the obligations on the court to explain its reasoning whereby it found the accused guilty?
The Specific Findings of the Special Criminal Court on which its Verdict was Based
The Application for a Herd Number and The Evidence of Mr Patrick Rafferty
Judgment of SPECIAL CRIMINAL COURT
“Mr. Rafferty of the Department of Agriculture gave evidence, inter alia, that Thomas Murphy had applied for a herd number, that in the form he described himself as cattle dealer and that a letter from Mr Murphy's solicitors confirmed that he had land. Messrs Murdoch and Flanagan were the veterinary surgeons. He said that he knew the Murphys and if an agent had signed the form the agent's name would have appeared thereon.”
Summary of the Appellant’s Submissions
28. The trial court incorrectly suggested that Mr. Rafferty had given evidence that Thomas Murphy had applied for a herd number, when Mr. Rafferty had given no such evidence, and had in fact confirmed that he was not in any position to give any such evidence.
29. It failed to identify, isolate and analyse the reasonable doubt evidence from Pat Rafferty, echoed by Patrick Flanagan, about the long established, pre-existing single Murphy farm and farming enterprise operating at Ballybinaby prior to the 1991 grant of the 24X herd number.
30. There was no evidence at the close of this case that the appellant, as opposed to his impersonating brother, Patrick Murphy, had applied for the herd number, unless the Court applied the Section 1078(3) presumption that the appellant had signed the herd number application form, Prosecution Exhibit 48. Mr. Rafferty’s evidence was that he could not say who had filled the form in, or who had signed the form, or who had sent it in.
31. The Special Criminal Court further failed to identify or analyse Pat Rafferty’s exculpatory evidence about Patrick Murphy’s ongoing role in farming at Ballybinaby throughout the relevant time frame, even after he had become de facto herdless in 2000.
Summary of the DPP Submissions
32. Mr. Rafferty gave evidence in relation to the application for a herd number that came into the Department of Agriculture. He confirmed that a completed application for registration under the disease eradication schemes came into the office from a Thomas Murphy of Ballybinaby, Hackballscross, Dundalk. In order to complete the registration, he was required to visit the farm. He knew who lived at the address. He knew both Patrick and Thomas Murphy and he would have known who he was dealing with if he met them. He would have probably met the appellant there, having notified him of his visit through Mr Murphy’s veterinary surgeon. The form contained a box which Mr. Rafferty had to tick saying that he was satisfied that the herd number application was not for the purposes of fraud etc. The application had been made in the name of Thomas Murphy and Mr. Rafferty had the relevant form signed personally in his presence and the person who signed it did not do so as an agent.
33. The trial court was entitled to conclude that it was satisfied that the accused, Thomas Murphy, had applied for a herd number; that in the application form he described himself as a cattle dealer and provided a letter from his solicitors confirming that he had land and stated that Messrs Murdoch and Flanagan were the veterinary surgeons and that Mr. Rafferty knew the Murphys and which of them he was dealing with and that if an agent had signed the form the agent’s name would have appeared thereon.
Discussion
34. On 17th July 1991, Mr. Patrick Rafferty, an agricultural officer employed by the Department of Agriculture and Food, carried out an inspection of a farm at Ballybinaby, Hackballscross, Dundalk, County Louth. An application had been received by the Department in the name of T. Murphy of that address for a new herd number. The form began asking for the applicant's name, address and phone number and recorded the information of Thomas Murphy of Ballybinaby, Hackballscross, Dundalk. No telephone number was given. It listed the address of the home farm as Ballybinaby, Hackballscross, Dundalk, County Louth. The applicant indicated he was over 18 years of age and that farming was his sole occupation.
35. The form remarked that the applicant did not have a herd number and that other people residing on the farm were in possession of such a registration. It proceeded to give the herd number and address of the other resident cattle-herder. The applicant ticked a box to say that he was not a cattle dealer. The form then had details about the farm itself recording its residential nature, confirming that the applicant was the registered owner of the property and that they had held the property for more then 3 years. Sections relating to any out-farms or machinery were left blank. The applicant noted that there were stables and a loft as part of the farm’s animal housing facilities along with their use of ditches as fencing. When asked about winter fodder, the applicant answered “hay”. The home farm was said to be 26 acres. The applicant went on to record “cattle-horses” as his stock. The form continued asking for details about the herd itself. It was noted that there was no pending application for a separate herd number. The herd was said to be “separately managed” and “maintained separately with no inter-herd movement”. It was also indicated that the herd had not been tested in the last 18 months under the “disease eradication schemes”. The herd was noted as comprising 6 cows, 29 store cattle and 6 calves under 6 months. The applicant indicated that he did not have cattle identity cards for all his stock. The details of the herdowner’s veterinary surgeon, Murdoch and Flanagan of Park Street, Dundalk, were provided. The application was dated “7-6-91” and ended with the signature of the applicant; “T Murphy” with the following declaration:
“I hereby agree to facilitate the carrying out of any official tests or inspections required on my herd from time to time in connection with the animal disease eradication schemes of the Department of Agriculture and Food. It is expressly agreed and understood that had tests under these schemes, other than private tests where a separate application has to be made, will be free of charge to me. It is also expressly agreed and understood that the carrying out of any tests on the official departmental scheme is without liability of any kind on the part of a veterinary surgeon or the Minister for Agriculture and Food. I declare that the information provided by me in connection with this application is complete and accurate."
36. The purpose of Mr. Rafferty’s inspection was to make sure that the farm had suitable facilities for dealing with cattle and for inspections of them and also to confirm that the application was bona fide, that is, that it was not for any illegitimate tax or social welfare purpose. Mr. Rafferty knew Mr. Thomas Murphy and Mr. Patrick Murphy. He brought with him the form that he would sign on satisfactory completion of the inspection. He also had a letter from Patrick Quinn & Co, Solicitors confirming the ownership of the land by Mr. Thomas Murphy. The Department required such a confirmation or else a lease agreement drawn up by an auctioneer. The letter was addressed to Thomas Murphy Esquire of Ballybinaby, Hackballscross, Dundalk, County Louth and was dated 4th July 1991. It was as follows;
“Re folios 4989 and 4637 County Louth
Dear Mr Murphy,
We confirm that you are the registered owner of lands registered on the above folios and contain approximately 14 acres, zero rods, 22 perches or thereabouts, statute measure. We hope this clarifies the position.
Yours sincerely.
Patrick Quinn & Company”
37. Mr. Rafferty said that he would have notified the applicant through his veterinary surgeon about the day and time of his visit. He duly inspected the farm facilities and signed the paperwork which he sent forward to his superior in the Department. In the result, Mr. Thomas Murphy of the specified address was given a herd number which is conveniently identified for the purpose of the trial by the last numbers and letter as 24X.
38. Mr. Rafferty testified that his memory of the visit was vague. He did know the Murphys, Thomas and Patrick, but he did not remember meeting Thomas on the occasion. At one point in his evidence, he said that he probably met Thomas, but he did not testify as to a face-to-face meeting with the owner of the land.
39. Mr Rafferty’s evidence affords an opportunity of considering some issues concerning evidence that arise on the appeal. Counsel for Mr. Murphy, Mr. Kearney QC, submits that the application form and the letter from the solicitors cannot be considered as evidence otherwise than by invoking the documentary presumptions contained in the tax code, specifically in the s.1078B of the Taxes Consolidation Act 1997. He follows this with submissions based on establishing a reasonable doubt in respect of presumptions which will have to be considered in due course as they arise. For present purposes, it is relevant to consider the evidential quality of Mr. Rafferty’s evidence and prosecution exhibit number 48, consisting of the application form in the name of T. Murphy with Mr. Rafferty’s annotations and signature, as well as the letter from the solicitors.
40. The application was received from a person signing himself T. Murphy. He had the address of the accused, which is not in dispute. That is a townland address so it is not to be understood as like a street number in the town, or even less, as a postcode identifier. The solicitors’ letter confirmed that it was Mr. Thomas Murphy and that he was the owner of a farm consisting of 147 acres in that townland. Mr. Rafferty knew where he was going and he knew Mr. Thomas Murphy, who is the accused. He went to the land for the purpose of confirming the Department’s requirements on an application for a new herd number. In the normal way, and not surprisingly, he would have notified the applicant through his veterinary surgeon as nominated on the form. This oral testimony and documentary evidence established that the accused Mr Thomas Murphy applied in June 1991 for a new herd number for his land at the above address, that the farm was inspected routinely by the agricultural officer, Mr. Rafferty, and found to be satisfactory and that the Department gave Mr. Murphy a new herd number, 24X.
41. It is not necessary to rely on documentary presumptions in order to reach these conclusions. The oral evidence given by Mr. Rafferty does not require elaboration. In view of the submissions made by Mr. Kearney QC as to the documents, it is necessary to say a word about documentary evidence. A letter purporting to be from a firm of solicitors, such as we have in this case, is prima facie evidence that it came from the firm whose notepaper is used and as to its contents and that it went to the person named. That is because it emanated from his solicitors for his purposes, which means that it is the client’s own document. It is evidence unless it is challenged by other probative testimony or documentation or undermined in some different manner. If no such issue arises the court is entitled to conclude that the document has been proved beyond reasonable doubt but it is not obliged to accord it that status. The court may view the material discretely or in light of the evidence as a whole; there is not an absolute or a general rule as to the importance of a document in the final analysis. Its admissibility, however, is not in doubt.
42. The argument put forward by Mr. Kearney QC is not the law. If that were the case, it would not be possible to accord evidential status to any document unless its execution was proved by a witness actually present at the time. That is not in accordance with the law of evidence or with logic.
43. The documents and Mr. Rafferty’s evidence are not disputed as establishing on a prima facie basis the matters that are stated above. Therefore the court was entitled to accept them as having been established. It was a matter for the court as to what status it should accord this evidence.
44. It is worth noting that Mr. Stephen Cosslett, the defence’s handwriting expert, was of opinion on the balance of probabilities that the signature on the Exhibit 48 application for the herd number was that of the accused.
45. This court holds that the Special Criminal Court was entitled to make its findings as recorded above without reliance on statutory presumptions. Having said that, the statutory presumptions provided by section 1078B of the Taxes Consolidation Act 1997 where applicable to the relevant documents, as they were to the other documents that were in evidence in the case. The section was inserted by section 161 of the Finance Act 2003 and subsection (3) provides as follows: -
“Where a document purports to have been created by a person it shall be presumed, unless the contrary is shown, that the document was created by that person and that any statement contained therein, unless the document expressly attributes its making to some other person, was made by that person.”
46. The court of trial held that Mr Murphy had described himself in the application form for the herd number as a cattle dealer. That is not in accordance with the contents of the form in which the applicant ticked the box for No in response to the question whether he was a cattle dealer. The court was entitled to deduce from the evidence and even from the form itself that the applicant was applying for the herd number for use in commercial activity involving livestock. The form states that the stock is cattle and horses. The nature of fodder is described, as well as other facilities for handling animals. In the circumstances, therefore, the court was entitled to conclude and arguably was obliged to conclude that the applicant for the herd number was going to be dealing with and in animals on a commercial basis. It is unnecessary to explore the definition of cattle dealing in view of the evidence before the court. The erroneous description of the form’s contents is therefore in this respect irrelevant to the case. Obviously, it does not make any difference to the question of chargeability on the part of the appellant. Any discrepancy of description would have no bearing on the status of the accused as a chargeable person in a business that involved dealing in cattle from which he received or was entitled to receive income derived from the commercial activity. Other evidence relevant to this issue is discussed in subsequent sections dealing with the findings of the Special Criminal Court in respect of the documentary materials. Moreover, the dispute about the application form as conducted in the trial court and on the appeal was not focused on any allegation of materiality in respect of the misdescription.
The Section 16 Applications
47. Two successful applications were made by the prosecution for the admission of written statements as evidence of facts, pursuant to s. 16 of the Criminal Justice Act 2006 which prescribes the conditions under which a written statement may be admitted, notwithstanding that the witness is available for cross-examination. The witnesses were Mr. Brian Garvey, a landowner, and Mr. Patrick Flanagan, a veterinary surgeon.
48. Section 16 provides as follows:
49. Having heard evidence on the admissibility issue and legal argument, the Special Criminal Court delivered its judgment as follows on the admission of Mr. Garvey’s statement:
“This is an application to admit the statement of Mr. Garvey pursuant to the provisions of section 16 of the Criminal Justice Act 2006. We're satisfied on the evidence of Mr. Garvey that the application falls squarely within the terms of the section and Mr. Garvey has further confirmed that not only that he made the statement, but its veracity and he has explained that his memory would have been better at that time. We're therefore admitting the statement.
The weight which is to be put to the evidence is entirely another matter that will depend on the other evidence in the case and indeed the circumstances in which he gave evidence today that was at logger heads with what was in the statement but the statement is admissible. So therefore, the position is that that statement now forms part of the evidence in the case and that's the end of the voir dire”
Summary of Appellant’s Submissions
50. Counsel for the appellant submitted that Mr. Garvey’s statement preceded the enactment and commencement of s.16 of the Criminal Justice Act 2006 and so could not be admitted; to do so was a retrospective application of the rule which could potentially breach constitutional protections as to due process. He accepted that this contention was rejected in DPP v. Rattigan [2013] 2 I.R. 221 but wished to protect the appellant’s rights in the event of a reversal of that decision by the Supreme Court.
51. The appellant argued that the first hurdle under s.16 (1) (c) of material inconsistency was not met. The court merely stated that they were “satisfied on the evidence of Mr. Garvey that the application falls squarely within the terms of the section”. The alleged inconsistency related to a number of factors including which member of the Murphy family dealt with Mr. Garvey, who paid the rent, and whether or not he had a phone number for Thomas Murphy.
52. It was claimed that the admission of Mr. Garvey’s statement failed the necessary requirement in s.16 (4) (b). The appellant contended that such a conclusion could only be reached when all the other evidence had been considered. The prosecution relied on documentary evidence from the Department of Agriculture to which statutory presumptions applied for the purpose of identifying the accused as a chargeable person. In the circumstances, Mr. Garvey’s evidence was merely supportive, rather than necessary to the prosecution case.
53. The appellant’s submissions argued that the application failed to pass the reliability test under s.16 (3) (b). Reliability was undermined by Defence Exhibit 6; the book of chits, which was not before the Court at the time of the ruling. The defence says that the evidence of Mr. Garvey in addition to much of the documentary material supported the appellant’s alternative narrative. The witness’s admittedly faulty memory was not enough to warrant holding the written statement of evidence to be more reliable than his oral testimony. It is argued that the trial court should have waited until it had all of the other evidence before deciding this issue.
54. In addition to submitting that the factual basis was not established for admitting the statement as evidence, Counsel for the appellant submitted that the approach of the Special Criminal Court fell short of what was required in considering the evidence and submissions and making its ruling. He cited three authorities in support, two judgments of the Court of Criminal Appeal and one of this court in cases concerning the application of section 16. These cases are instances of the exercise of this statutory jurisdiction and are briefly mentioned below.
55. The appellant also complains about the evidence of Mr Garvey in his statement in relation to identifying the appellant by means of a photograph that he was shown. Counsel argued that the method by which this had been done was prejudicial and suggestive, contrary to the interests of justice. Fairness was still central to the process, whether it was a matter of identification or recognition as the prosecution argued, citing DPP v. O’Reilly [1990] 2 I.R. 415.
Summary of the DPP Submissions
56. The Director submits that DPP v. Rattigan is settled law. Counsel argued that there was evidence entitling the trial court to admit Mr. Garvey’s written statement. There were material inconsistencies with respect to the person to whom Mr. Garvey’s land was rented, his having an office telephone number for Thomas Murphy and whether Thomas Murphy was the principal contact in terms of receiving the rental money.
57. In ruling on the admissibility of the statement, the Court was not required to prefer the evidence of one witness over another or to resolve any significant factual dispute. The issue was whether the criteria set out in Section 16 had been met as a matter of law. This case was very different from the People (D.P.P.) v Murphy [2013] IECC where there was a head-on conflict on the evidence between the Gardaí and lay witnesses on the issue of threats.
58. The Director submitted that the court of trial found that the multi-tiered test in s. 16 was satisfied and there was ample evidence to support that finding. In relation to the voluntary nature of the statement, Mr. Garvey noted during examination that he had found the Gardaí to be quite courteous in interviewing him. He testified to understanding that there was an obligation to tell the truth in making such a statement. The reliability of the underlying statement could also be found in Mr. Garvey’s admissions as to his current memory issues. There were no grounds for exclusion in the interests of justice as the witness was available for cross-examination and indeed, had been subjected to same. Counsel also referred to Mr. Garvey’s admission that his memory would have been better at the time of making the statement some ten years ago.
59. The respondent rejected the appellant’s arguments as to necessity and the suggestion that all the evidence be adduced before such a determination could be made. A trial court is entitled to rule on a s. 16 application on the basis of the other evidence including what is in the Book of Evidence on the assumption that evidence will be given in accordance with the Statements. The trial court was uniquely placed to make a determination on necessity and it is not for an appellate court to second-guess it. A trial court is not required to hear all of the evidence before deciding on an admissibility question.
60. In regard to the issue of necessity of admitting Mr. Garvey’s statement as evidence, the Director submitted that, if it was accepted Mr. Garvey’s statement evidence “proved that the Appellant rented agricultural land, it proved that the appellant paid rent and it proved that such rent was paid for the most part in cash. These were material points, which were not established elsewhere in the evidence”.
61. In rejecting the appellant’s claim that Special Criminal Court’s decision was made “in the dark”, the Director points to Mr. Garvey admission that his memory would have been better at the time of making the statement and the court’s express reference to that.
62. In regard to the appellant’s complaints about the brevity of the judgment given by the court, the Director submits that it is not necessary for a trial court to engage in a “box-ticking exercise” in its ruling on the matter where it is otherwise clear what the outcome was and in circumstances where it held “the application fell squarely within the terms of this section”.
63. On the identification of Thomas Murphy, the Director notes that there was no issue whether Mr. Garvey was well acquainted with the accused. Mr. Garvey recognised rather than identified Thomas Murphy in the photograph produced by Gardaí during the taking of his statement. As such, a separate legal approach was applicable unlike the situation of an identification parade.
Discussion
64. The questions that arise are first whether there was evidence to satisfy the statutory requirements; was there evidence before the court on which it could have been satisfied to admit the statement of Mr. Garvey as evidence? Secondly, did the Special Criminal Court apply the statutory criteria correctly having regard to the terms of the section and to relevant jurisprudence?
65. In People v. O’Brien [2011] 1 IR 273, the Court of Criminal Appeal expressed approval for the way the trial judge approached his task, which was a decision principally concerned with material inconsistency and admissibility of the evidence if given in oral testimony. The judge delivered a lengthy written ruling in which she quoted extensively from the transcripts of videotaped interviews. In the circumstances, the court was satisfied that the judge had exercised his function with very considerable care.
66. In People v. Murphy [2013] IECCA 1, in dealing with another s. 16 issue, the Court of Criminal Appeal referred to O’Brien’s case and the way the trial judge dealt with the matter with approbation. That case highlighted the differences between the present situation and the previous situation in which the only option in circumstances where a witness gave evidence that was inconsistent with a previous statement was to seek to cross-examine him or her with a view to undermining the witness’s credit. The statement was itself of no value in the trial other than to impeach any testimony the witness had given. The court commented on the departure that section 16 represented from traditional common law principles. The judgment also expressed regret that the trial judge’s ruling was not more detailed or discursive but it nevertheless held that it was adequate. There was however a major conflict of evidence in that case between the Garda witnesses and others on the question of threats, which as the Director points out is a very different situation from the present case. The court in a passage that is cited by both sides in this appeal, referred to the exclusionary rule for evidence that was unnecessary, declaring that evidence “which is merely supportive, useful, helpful or even desirable is not sufficient. It must be essential in a material and substantive respect”. The court pointed out that necessity was a key concept. Having said that, it is relevant to observe that subsection (4)(b) does not require necessity to be established in the first instance but rather provides that the statement shall not be admitted if the court is of opinion that its admission is unnecessary, having regard to other evidence.
67. This Court dealt with the issue in the case of O’Brien v. Stewart [2015] IECA 312 in which the judge of trial adopted a two-stage process, deciding first whether the statement was capable of being admitted pursuant to s. 16 and, secondly and subsequently, whether it ought to be admitted. He postponed a final assessment of the reliability of the statement in question until other evidence relevant to the particular issues that were raised in the case had been heard. The trial judge was concerned that further information might be available touching on the exercise of the jurisdiction under the section. In addition, he said that the question of whether it was necessary or unnecessary to permit a very radical departure from the traditional conduct of a trial would be much clearer. This Court was respectful of the great care that the judge had taken and acknowledged his understanding that the legislature had set a high threshold for the use of this evidential facility.
68. These cases highlight the novelty for Irish jurisprudence of this provision, the significant departure it represents from the previous option for dealing with a hostile witness, the importance of care in approaching the decision and the desirability of furnishing information as to the basis on which the ruling is made. Although some different approaches have been adopted as to the procedure for deciding whether to apply s. 16, the court must look primarily at the terms of the section. It does not provide for any specific procedure but it does set out a clear code of necessary preconditions before a statement may be admitted.
69. The Director submits correctly that the manner in which an issue in respect of section 16 is to be decided and indeed is to be debated depends like any other question that arises in a trial on the nature of the dispute. The same goes for the explanation given by the court for its ruling. In circumstances such as obtained in Murphy where there was a stark conflict of evidence between the witnesses in relation to the furnishing of the disputed statement, the court hearing the appeal was critical of the absence of a fuller discussion of the conflicting testimony and how the judge resolved it. That is a criticism that may arise in respect of any issue decided by a trial court. Such observations arise not because of the particular terms of s. 16 but because of the dispute that was presented to the court for resolution.
70. It is clear that there was material available to the trial court on which it was entitled to conclude that the requirements of s. 16 had been satisfied. The different elements appear in the section as quoted above and the facts are recited in the submission of the Director. There was indeed little in the way of factual controversy, which made this s. 16 issue unusual. The evidence given by Mr. Garvey in oral testimony was materially inconsistent with his written and signed statement. The witness confirmed that he had made the statement. Direct oral evidence of the facts contained was admissible. It was not suggested that the statement was other than voluntary. It was for the trial court to assess reliability of the statement by reason of the circumstances in which it was made and with reference to the explanation given by Mr. Garvey as to his departure from it. There was the explanation that the witness gave. In accordance with subsection (4), the statement could not be admitted if the court was of opinion that it would be unfair to the accused or that it was in the interests of justice that it should not be admitted; similarly, if admission of the statement was unnecessary, having regard to other evidence given in the proceedings. The list of proofs for the admissibility of a statement under s. 16 is formidable and even when they are all satisfied the court retains a capacity to refuse.
71. The evidence before the Special Criminal Court was sufficient to satisfy the requirements of the section. The factual issues were limited, in view of the evidence. In the circumstances, the trial court expressed its ruling in a shorthand form, declaring that the application fell squarely within the terms of the section. The court noted specifically that Mr Garvey had confirmed making the statement and its veracity and that he explained that his memory would have been better at the time. These points referred to specific requirements of section 16 and the last one related to the issue of reliability. The court was careful to distinguish between admissibility of the statement and the probative weight to be attached to it.
72. The Special Criminal Court set out its reasoning in broad terms but it is not correct to condemn the decision on admissibility as not being explained in any satisfactory manner. Undoubtedly, it would have been open to the court to engage in a discussion in greater detail and many courts would indeed do so. The absence of fuller detailed reasoning may be considered less than satisfactory or regrettable but that is not to say that the explanations furnished in this case were so sparse or actually absent as to undermine the validity of the decision. Evidence that the various statutory requirements had been met was present, even if they were not explicitly referred to on a sub-section by sub-section basis. It is also relevant that the issues of law and fact raised in respect of the admissibility of the statement had been canvassed in detail in the voir dire hearing immediately prior to the ruling and were present to the minds of everybody in court.
73. The question of the photograph that Mr. Garvey was shown does not call for discussion. The matter is irrelevant to the appeal. There is no issue as to the identity of Mr. Thomas Murphy or the fact that Mr. Garvey and he were acquainted. It is correct that it was recognition not identification but the point is that neither of those matters has any importance or even relevance to the trial or to this appeal. Nothing about the photograph is material to the case of either the prosecution or the defence.
74. Mr. Garvey’s statement is as follows:
“Statement of Brian Garvey
My name is Brian Garvey. I am a farmer/land owner here at Rathe House, Kilmainham Wood, Kells, County Meath. The total acreage of my lands would amount to 416 acres in statute and I have been here since 1986 having moved from County Dublin. In or around 1997, possibly earlier, I rented lands to a man called Thomas Murphy from Hackballscross, Dundalk. Initially I rented all of my land to him. This was maybe for two years in or around 1996/1997. Thomas Murphy is a livestock farmer and to my knowledge he would currently have about 150 head of cattle on my farm. He would always pay me in cash every year for the rent and just occasionally he would pay me with one or two third-party cheques from an oil company that he is involved with. These amounts would be for maybe €3,000 to €5,000. As I have said already he rented all of my land from me for the first couple of years. He would have paid me around IR£45,000 cash for each year. After this period of time Thomas Murphy just rented 246 statute acres from me and this is the amount he has been renting from me for the past five or six years to date. For this acreage he initially paid about IR£25,000 in cash for the period roughly 1999 to 2002. Every year since that the price would have dropped to €22,500 per year and this is what Tom has paid me. So far this year he has paid me €15,000 cash and he still owes me €7,225. Initially when I started renting land to Tom Murphy I also had two large sheds/outhouses, each of which would have housed about 220 cows, but he now only access to one of these sheds/outhouses. I know that Tom Murphy uses the services of a vet by the name of PJ O'Halloran, who is based in Nobber, but also has a practice in Kingscourt. Tom Murphy was here yesterday with this brother, three nephews and one of his nieces. They drew all of the cattle and calves from the land. You have to do this with the livestock this time of the year. I mentioned to Tom yesterday when he called that he owed me a few bob and he organised it with one of the nephews who handed me 5,000 in cash. I don't know the names of any of the nephews bar one who I know as Paul, and he is about 20 to 22 years old, reddish hair, well built, six foot. I think he plays football up that part of the country for some local team. Tom's office number is 042-9377753. If you wanted to contact him you'd have to ring this number. He doesn't have a mobile phone or if he does I don't have a number for it. One of his nephew's mobile numbers is 0863402409. The chap who I know to be Paul his number is 0869055012. Just to clarify what I've already stated, other than the 5,000 cash that was given to me by Tom's nephew all other monies, cash paid to me over the years was paid by Tom. You are showing me a photograph of a man who I can confirm as Thomas Murphy. This is marked as photograph A and I have signed my name underneath. Initially when I rented all of the lands to Tom Murphy he subcontracted an agricultural firm to provide silage and to fertilise the lands. He did this for the first two years or so when he had all my lands. This would have cost him about IR£12,000 per annum. After that when he just rented the 246 acres from me, we struck up a deal whereby I would provide the silage for him. The price for this would have been anywhere from €10,700 to €12,500 depending on how good the year was. I do know that Tom bought an amount of livestock from Blakes Irish Country Meats about four or so years ago. Blakes is about two miles beyond Nobber. I have kept a number of chits, receipts, which I have handed over to you. These indicate the amounts in cash paid to me by Tom Murphy over the last maybe two or three years."
Patrick Flanagan
Special Criminal Court Ruling on the Statement of Patrick Flanagan
“This is an application to admit, pursuant to section 16 of the Criminal Justice Act 2006, the statement of Mr Patrick Flanagan, a veterinary surgeon, made to Detective Garda McGreevy in this matter. We are satisfied on the evidence, and we have considered all the submissions made thereunder, that there is a material inconsistency there are a number of material inconsistencies between the evidence given viva voce by Mr Flanagan and the statement. The ones referred to concern the witnessing, as stated in the statement, the witnessing by Mr. Flanagan of the signing of documents by the Murphys. We had the benefit of taking that evidence viva voce and we are satisfied that, not only is there a consistency, but that Mr. Flanagan, for whatever reason, was being evasive in his evidence concerning that. There is also an inconsistency in relation to his visiting, I'll call it, the Murphy premises on which there were a number of houses at the same address. We're satisfied that the statement was both voluntary and reliable. On the evidence, which we accept, each sentence was read out to him and the entire statement was read out to him and that he was invited to make amendments and further that he did make some substantial amendments to the original statement. We're further satisfied with the other matters raised in the section. We have taken into consideration the fact that it wasn't under oath or affirmation. There wasn't a video recording of it. We are satisfied that Mr. Flanagan fully understood, and he confirmed it in his evidence, fully understood the requirement to tell the truth. We are satisfied that the admission of the statement is necessary. What weight we attach to the statement is, and any particular parts of the statement, is entirely another matter to be dealt with in the light of all the evidence in the case.”
75. Largely similar issues arose in regard to the written statement made by Mr. Patrick Flanagan and so a truncated discussion follows. The same argument arose as to the compliance with the requirements of s. 16 and the same criticisms were made about the ruling of the trial court. On Day 6, Patrick Flanagan gave evidence that he was a veterinary surgeon and the extended Murphy family were clients of his and he was involved in testing schemes for the Department of Agriculture. Herd owners were required to sign forms provided by their veterinary surgeon as part of the TB testing process. Mr. Flanagan admitted providing those forms in person or leaving them to be signed, but he did not recall any specific member of the Murphy family signing them. In contrast, his written statement refers to having witnessed the three Murphy brothers signing these forms up until 2005. A lesser discrepancy was found concerning the time period in which Mr. Flanagan is said to have visited a converted office at Patrick Murphy’s house. In his oral testimony, such visitations only took place up until “the mid-nineties” whereas his written statement suggested they carried on after that. Counsel for the prosecution applied to have Mr Flanagan’s written statement admitted into evidence pursuant to pursuant to s. 16 of the Criminal Justice Act 2006. The defence objected to the application on the grounds that there was no material inconsistency, but rather a mere discrepancy of a sentence or two. The Court granted leave for a voir dire hearing and allowed the statement to be put to the witness.
Summary of Appellant Submissions
76. The appellant accepts that s. 16 of the Criminal Justice Act 2006 was commenced on 1st August 2006. As Mr. Flanagan’s statement was taken on 26th August 2006, no submissions are made in respect of DPP v. Rattigan and retrospective application. Instead, ambiguity as to the material inconsistency forms the core of the Appellant’s argument against the introduction of Mr. Flanagan’s statement. The appellant submits that in the absence of the trial court requesting other forms of evidence relating to the signing of the aforementioned forms, then there could be no basis upon which material inconsistency might reasonably be found. It is said that the oral evidence of Mr. Flanagan is too confusing for any proper determination to be made. The inconsistency is not material, insomuch as it is misunderstood.
77. Secondly, the appellant re-iterated its previous argument as to the “necessity” test and statutory presumptions. The defence emphasised that it was, at most, merely helpful rather than crucial to the prosecution case and would not have been introduced had the trial court been given a full understanding of the evidence that was to follow. The Special Criminal Court, it is argued, should have had all the appropriate material before it prior to making any determination concerning the introduction of more evidence.
78. Thirdly, the alleged failure to fulfil the requirements of the “reliability” test was once again relied upon by the appellant. They submit that reliability could only truly be assessed when the whole of the evidence was considered. Indeed, the appellant suggests that Mr. Flanagan’s reliability is in question due to his concern for having been derelict in his technical requirement to witness the signing of the aforementioned forms.
79. The appellant contends that the trial court acted in contravention of his constitutional right to a fair trial and due process because of its failure to give reasons in its ruling,. The error in admitting Mr. Flanagan’s statement was exacerbated by its corroboration of the RBO35 certificates which damaged the Appellant’s case. As such, it is argued the verdict against Thomas Murphy is “unsafe and unsatisfactory”.
Summary of the DPP Submissions
80. Mr. Patrick Flanagan was a necessary witness from the prosecution point of view as he could testify as to Thomas Murphy signing Department of Agriculture Forms in respect of the cattle business, having directly witnessed that as no other witness had. His statement went towards proving Tom Murphy’s involvement in farming at Ballybinaby.
81. The material inconsistency in the case of Mr. Flanagan related to face-to-face meetings between the accused and the witness in a professional context. The evidence concerning attending and witnessing forms being filled in by Mr. Thomas Murphy was crucial, particularly due to the evasive responses of the witness under examination. The Director’s submission expressed a similar view on the issue of the temporal period during which he collected monies owed from an office. It is argued that Counsel for the Appellant accepted during the trial that there were stark differences between the two accounts.
“Mr. McGillicuddy stated “in relation to the other - - in relation to the first sentence that’s about two lines up from that. That is “I have witnessed the three Murphy brothers sign various Department of Agriculture Forms in relation to TB testing over the last number of years up to 2005” and“I think I’ve to accept that the witness in his evidence doesn’t refer in any explicit term to Tom Murphy signing forms as far as I can recall.” (Day 6, Pg 59, Lines 12 to 16).”
82. It is submitted by the respondent that Mr. Flanagan accepted during examination that he had made the statement of his own free will, without pressure from the Gardaí, and had been offered an opportunity to correct or clarify any matters. Furthermore, Mr. Flanagan attested to knowing the importance of being truthful in making the statement to Gardaí. Like Mr. Garvey, the witness accepted his memory would have been clearer at the time of making the initial statement. While Mr. Flanagan undoubtedly regretted using the word “witnessed” in his statement, he nonetheless accepted that it was a fair and accurate reflection of what he said at that time. Consequently, the respondent submits there can be no question as to the reliability of his statement. They also believe that no unfairness was done to the accused as Mr. Flanagan was available for and subjected to cross-examination.
83. The court was referred back to the cited jurisprudence on the necessity question and the level of evidence required to be examined in making a s.16 determination. The respondent submits that Mr. Flanagan was a necessary witness in the case because he could testify from his own direct knowledge to Thomas Murphy’s involvement in the cattle business including through the signing of Department of Agricultural forms. The weight that the trial court was to give to the evidence was a different matter.
Discussion
84. The trial court was obviously in a position to assess Mr. Flanagan’s evidence in a way that this Court is not. The authorities are clear that a Court of Appeal must accord deference to a trial judge or court in regard to judgements about credibility and demeanour and other features that arise from being present in court reviewing the evidence as it is given. It is clear in this case that there was material inconsistency. The Special Criminal Court was entitled to make that finding and indeed was correct in doing so. It was also entitled on the evidence to assess and determine whether there was compliance with all the other requirements of s. 16. The court referred specifically to some issues and in more general terms to the other criteria in the legislation.
85. This Court is satisfied that the Special Criminal Court was entitled to reach the conclusion that it did in regard to Mr. Flanagan’s statement, as it was in regard to Mr. Garvey’s. The court’s ruling on this statement was also brief, but nonetheless specified some particular elements. The same comments arise as were made in the case of Mr. Garvey’s statement. The Director’s submission is correct that the nature of the ruling given by a court depends on the issue or issues falling to be decided. The evidence in Mr. Flanagan’s case was also not a matter of factual dispute or assertion and rebuttal calling for resolution by the court. The Court of Appeal is slow to interfere with evaluations and judgments of trial courts that are based on observation and assessment of witnesses.
Statement of Patrick Flanagan
"My late father was a vet in Dundalk up to the time of his death in 2004. I worked as a vet with him in his practice from 1990 and continued on the practice after his death. The Murphy brothers, i.e. Thomas, Paddy and Frank were clients of my father's for many years and continued to be clients of mine. The Murphy farm is in Ballybinaby, Hackballscross, County Louth. The majority of my dealings with the Murphys were for TB and brucellosis testing and clinical callouts. I have dealt personally with the three brothers. I can say that Thomas Murphy's herd number is 0127124X. I can say that Thomas Murphy has been involved in beef and suckler cow farming at least as long as I have been dealing with him and it is my understanding that he was involved in this kind of farming prior to my taking up employment here prior to 1990. I am currently awaiting payment from the three Murphy brothers for work carried out during the year ending 2005 and half of 2006. All of my previous remittances up to 2004 were all paid. I was assured by one of the Murphys, I can't recall which one that I would be paid in due course and I fully expect that this will be the case. I have never had any problems with them in the past. I have also visited the Murphy's herds on lands rented by them from Mr Brian Garvey at Rathe, Nobber, County Meath. I also tested cattle for them in Inniskeen, County Monaghan. I can't recall the exact location. I will check my records and revert to you in due course with it. My visits to the Murphy herds would be about two to three herd tests per year as well as several private TB and brucellosis tests and in addition there would always be clinical call outs, possibly eight to 10 call outs per year. I have witnessed the three Murphy brothers sign various Department of Agriculture forms in relation to TB testing over the last number of years up to about 2005. In regard to the methods of payment from the Murphy brothers it was always in cash up to 2003 to the best of my recollection. I would always call out to the office next to Tom Murphy's house or to Rosemary's house and collect an envelope with cash addressed to me. I believe that I was paid by cheques in 2004 and I will undertake to get in contact with my bank with a view to retrieve a copy of the cheques that the Murphys paid me and I will be in contact with you when I am in receipt of same. This statement has been read over to me and is correct.”
Weight
The Judgment of the Special Criminal Court
“8. The statements admitted under section 16 of the Criminal Justice Act 2006.
(1) In the course of the trial statements made by Patrick Flanagan, veterinary surgeon, and Brian Garvey, land owner, were admitted as part of the evidence.
(2) Mr Flanagan in the course of his statement:
(a) said he witnessed the signing by the Murphys, including Thomas Murphy, of Department of Agriculture forms;
(b) he understood the requirements to tell the truth;
(c) Thomas Murphy had been involved in the beef and suckler cow farming for at least as long as he had been dealing with him;
(d) he was given the option to strike out or withdraw any aspect of the statement and he didn't that he didn't agree with and he did so.
(3) Mr Garvey spoke to Mr Murphy in relation to farming matters and a rent of land the day before he made his statement in 2005.
(4) The Court has considered the foregoing statements in the light of contradictory viva voce evidence and in the light of the totality of the evidence in this case, and we have considered what weight should be attributed to the said statements. The Court is satisfied beyond reasonable doubt that the section 16 evidence outlined above represents the true state of affairs, namely that Thomas Murphy was carrying on a cattle farming and dealing business.”
86. On the question of the weight given to the evidence in the statements of Mr Garvey and Mr. Flanagan, this Court has to acknowledge the superior position of the trial court. The question is whether there was evidence to justify these findings in relation to the two witnesses. There clearly was. The Special Criminal Court was entitled to accept the evidence in the two statements as it did. In those circumstances, it is clear that this was important evidence from persons who were in a position to describe from their own knowledge activities of the accused. The statements demonstrated that Mr Murphy was actively engaged in cattle farming, as Mr Flanagan expressly declared in his statement. Mr Garvey described renting land to Mr Murphy. The contents of the statements generally and the importance to be attached to them were matters for the court of trial.
87. Section 16(5) of the Criminal Justice Act 2006 required the trial court in estimating the weight if any to be attached to the statements to have regard to all the circumstances from which any inference could be drawn as to their accuracy or otherwise. It is worth noting that both witnesses had close personal and professional ties with the accused, his brother and their extended family. In such circumstances, where they were two of the few witnesses with direct dealings with Thomas Murphy, the trial court was entitled to accord significant value to the evidence. It would be inappropriate for this Court to attempt to re-assess their credibility when it lacks the benefit of having heard the witnesses itself. The principle from DPP v. Madden and the other authorities on the appeal process apply.
Documentary Evidence
“3. The prosecution sought, in evidence, to establish farming activities by the accused over the relevant period by proving a very large number of documents which purport to be signed by one T. Murphy with a given address of Ballybinaby, Hackballscross, Dundalk, Co. Louth. The said documents included an application for a herd number, applications for various monetary payments, cheques or payment orders payable to the said T. Murphy in respect of such applications, records of transactions with cattle mart and meat processing plants by one T. or Thomas Murphy of the said address and payments to and from the said entities, the operation of an account by one Thomas Murphy and the use and benefit of the proceeds of the said payments by the holder of that account.”
88. The question for this Court is not whether upon a reconsideration of the whole case including all the documents the Court of Appeal would come to the same conclusions in respect of each of the documents. The question is whether there was material on which the trial court based its decision. This court has the decision of the court of trial expressed in its judgment as to why the court found the accused guilty. If the court could reasonably and legitimately come to that conclusion on the evidence, the verdict is not impeachable.
89. This Court in this section of the judgment sets out the findings of the Special Criminal Court in relation to the documentary material and summarises the evidence. This is not a comprehensive review but rather an indication of the evidence on which the trial court relied in its verdict. There was a mass of documentation available and the witnesses addressed it in the course of the examination in chief and cross-examination. Insofar as the defence put forward a particular interpretation, there had to be some basis for that in the evidence. Counsel for the accused cross-examined the various State witnesses in endeavouring to set up the alternative case that it was Patrick Murphy who was exclusively in control of all the operations concerning the herd registered to Thomas Murphy and the bank account in his name and the money arising from dealing in cattle in the herd and the funding of Thomas Murphy’s pension and the other features that were demonstrated by the documentary material. It would have been sufficient for the defence to establish a reasonable doubt; they did not have to prove the case. But it was a matter for the court of trial to make its decision on the evidence.
90. The majority of the documents relied upon by the defence were introduced by way of the evidence given by the anonymous Chartered Accountant, a member of the Criminal Assets Bureau, over the course of five days. Before this lengthy testimony was given, Counsel for the prosecution read the statement of Detective Garda Tony Brady into the record. He had been scheduled to appear in Court, but could not do so due to illness. This statement outlines the events of March 9th 2006 when the search of lands belonging to Patrick Murphy took place. It is worth noting that the land in question was registered to Matthew Kane, who upon being served with the search warrant informed Gardaí that he had sold the land to Patrick Murphy a number of years ago. He added that Gardaí would find nothing in the sheds. It goes on to note that three refuse bags filled with documentation relating to the extended Murphy family as a whole, cash, cheques, and computers were found in a shed on the property. These bags, along with a black suit-case, were found hidden in the shed. The search warrant in question is listed as Prosecution Exhibit 21.
91. The appellant submits that all of the documentary evidence is necessarily the subject of statutory presumptions because there is not direct evidence as to authorship of signatures and contents. In light of the defence’s handwriting expert’s testimony in respect of the documents that he examined, it is argued that the presumptions are undermined if not actually disproven. At the very least his evidence must be taken to have established a reasonable doubt, not only in regard to the documents on which he comments but on the presumptions generally. This issue will be addressed when the handwriting evidence is considered and more generally. This summary consideration of the documentary evidence must be read subject to the defence contentions on the documents generally.
92. The respondent recognised some overlap in the submissions concerning documentary presumptions and the handwriting evidence presented by Mr. Cosslett. This lies primarily in the appellant’s alternative narrative wherein Thomas Murphy did not sign certain documents and the true author was allegedly his brother: Patrick Murphy. The Court is concerned with the question of chargeability, rather than who may have signed a particular document. In considering whether or not Thomas Murphy was a chargeable person, the Court must have regard to whether or not he received or was entitled to receive cattle-related income. As there is no dispute that the business was being carried out in the accused’s name via a Permanent TSB bank account, in determining chargeability, it does not matter whether or not the administration of 24X herd was carried out by another party. It is contended that the enjoyment or entitlement to same of monies generated from the cattle trade is sufficient.
Judgment of the Special Criminal Court
Evidence of Charles McCarthy
93. Mr. Charles McCarthy, a former employee of Irish Life & Permanent plc produced documents relating to a Permanent TSB account labelled as “the 610 account” which was created in Thomas Murphy’s name. Mr. McCarthy engaged with an Garda Síochana in providing lodgement clips, cheques and related bank documents subject to a court order issued in February 2006. The bank considered the appellant to be entitled to the monies in the account irrespective of whether or not another person lodged or withdrew money from it. Money from the account was used in service of Thomas Murphy’s pension investment. Some of the money lodged to the 610 account was generated by dealings in respect of the 24x herd which was registered to Thomas Murphy.
94. In cross-examination, the defence suggested that these documents when viewed within the totality of other exhibits demonstrated that Patrick Murphy, rather than Thomas Murphy, was in charge of the bank account and documentation from which it emanated. Search product, in the form of a cheque book, cheque book stubs, and lodgement book was introduced later which Mr. McCarthy confirmed as coming from the same bank branch.
Summary of the Appellant’s Submissions
95. Counsel for the appellant argued that the evidence of Mr. McCarthy showed that there was a constant flow of cheques to and from the 610 account but there was no evidence as to who had opened it. The account was indicative of a more widespread problem of faceless banking and accounts being opened in the names of third parties, at a time before regulations were put in place to curb such activity. The appellant maintained that Patrick Murphy had admitted to using such bank accounts or those belonging to others. They further suggest that the abnormal, somewhat dormant nature of the transactions in the account do not point to any activities that could reasonably be linked to appellant. The 610 account served Irish Life Direct Debit payments from 1996, before cattle-related cheques began being lodged into the 610 account, so that one could not be sure as to what money funded the account. Even after that time, it cannot be said with certainty that cattle lodgements necessarily funded the payments given the large, round-sum deposits involved. A similar situation was found with respect to another account held in Patrick Murphy’s name, known as “the 311 account”. The appellant also noted that in the years following 1999, the 610 account saw a number of cattle related transactions. In 2002, Patrick Murphy’s cattle, known as “herd 160”, were transferred to Rosemary and Maria Murphy. Cattle-related transactions re-emerged on the 311 account at the time. The appellant argues that the common lodgement and withdrawal patterns, characterised as “same day transactions” by Mr. McCarthy, indicated that a single person was controlling the activities of both. The alternative narrative presented by Counsel for the appellant was that that person was Patrick Murphy. Entries in a ledger which counsel characterised as “Patrick Murphy’s loan book” suggested that he was linked to these Irish Life re-payments. The appellant suggested that Patrick Murphy was the mastermind behind the 610 account. On that basis, the defence contended that Thomas Murphy was not a chargeable person under the Taxes Acts.
Summary of the DPP Submissions
96. The evidence presented by Mr. McCarthy is not challenged, but rather the contention between the parties lies in inferences which can be drawn from it. The respondent noted that Thomas Murphy was entitled to enjoy the money in the account irrespective of who lodged it. Indeed, there was no way to know fully who lodged certain monies and Mr. McCarthy confirmed it was not unusual for third parties to lodge money on behalf of others. It was emphasised that at any point, Thomas Murphy could have stopped the Irish Life Direct Debit and used the lodged money for his own purposes. The account was his to control and do with as he wished. This control extended to the ability to write blank cheques, however inadvisable that may be.
97. The respondent submits that the Taxes Acts (i.e. the Taxes Consolidation Act 1997 along with any amending and related legislation) are predicated on the enjoyment of or entitlement to income, irrespective of any evidence of ceding a level of control to another. Patrick Murphy’s alleged de facto control over the account would have no determinative impact on the case. Thomas Murphy was a chargeable person as someone entitled to income received from various dealings. The appellant must have known about the activities of his brother and even if he did not, his signing of blank cheques still brought him within the remit of the Taxes Acts as he retained an entitlement to enjoy the money from the 610 account.
Discussion
98. The Special Criminal Court found that 30 blank cheques in prosecution exhibit 30, drawn on the account and found in the course of a search of premises owned and occupied by Patrick Murphy, were signed by Thomas Murphy. This demonstrated that Thomas Murphy retained some level of control over the 610 account and retained the benefit of money in it. The trial court confirmed, with reference to the evidence, Thomas Murphy’s entitlement to the monies in the 610 account.
99. It is worth noting that the defence’s handwriting expert did not give evidence questioning the authenticity of those signatures. Without directly addressing this element of the Taxes Acts, the appellant cannot avoid liability under the tax code. The trial court was, therefore, entitled to conclude beyond a reasonable doubt that the bank account was at least to some extent operated by the accused including payments into his personal pension fund to his benefit.
100. The Special Criminal Court made a limited finding in regard to this evidence. It held that the account was opened in the name of Thomas Murphy and that he operated it to his benefit “at least to some extent, including to make payments into his personal pension fund, operated by him to his benefit”.
101. These conclusions are based in the evidence and the trial court was entitled to reach them. Indeed, it is difficult to see how the court could have held that Mr Thomas Murphy did not have the capacity to exercise control over the account. Even if he had ceded control of the account to another person, on a temporary or long-term basis, he would still have been entitled to operate the account. He retained his entitlement to the benefit of the money in the account.
102. The evidence of the operation of this account as accepted by the court of trial was evidence that the accused was a chargeable person.
The Chartered Accountant’s Evidence
The Judgment of the Special Criminal Court
“14(6) The [M]GO book. The accountant agreed that what is described as the [M]GO book discloses all transactions in the Murphy herds from 1996 to 2004. Such herd transactions as were recorded relate to particular herd owners including the accused.”
103. The Chartered Accountant, whho was employed by the Department of Justice, who had been seconded to the Criminal Assets Bureau in 2001. During this secondment, he took part in the investigation into the affairs of Thomas Murphy. The examination began with an analysis of Prosecution Exhibits 30 and 31 relating to the bank account said to have been held by Thomas Murphy. The Chartered Accountant examined these statements prior to the search conducted on March 9th 2006. The documents seized during that raid were subsequently analysed so as to identify commonalities between the two. He described this with particular reference to Prosecution Exhibit 22, a ledger which contains a number of entries pertaining to Thomas Murphy and the extended Murphy family. He also gave detailed evidence about a book entitled “Marked Gas Oil” with handwritten entries taken from Patrick Murphy’s shed which came to be known as “the MGO book”.
104. The Chartered Accountant rejected the proposition put forward by the defence that these records demonstrated that Thomas Murphy was merely upon in his brother’s scheme. He accepted that there was a larger familial farming enterprise but each of the herds was clearly distinguishable in terms of who received the profits. There was a central system of record keeping. He maintained through his six days of testimony that the entries in the ledger were expenditure made by or on behalf of Thomas Murphy and his farming activities.
The witness noted that the records collected during the raid were “not normal” in a bookkeeping sense in that there was a unique logic or code to many of the documents. The importance of the MGO book was not initially appreciated because it was handwritten.
105. Counsel for the defence offered alternative explanations for the information gleaned from the search materials. Each time this proposition was put to the witness, he denied the possibility. He continued to insist that the references to Thomas Murphy in Prosecution Exhibit 22 were related to expenditure incurred on his behalf.
106. Summary of the Appellant’s Submissions
The appellant submitted that a number of facts surrounding the search product bolster their alternative narrative, namely:
(a) the material had been obtained from a raid on a Patrick Murphy’s house and indicating his role as the mastermind behind the farm;
(b) the documentation concerning all three herds had been found together, rather than with their respective owners;
(c) that many of the documents, relating to all three herds, bore handwritten “Done AM” annotations suggesting some type of group ex post facto global bookkeeping or reconciliation process, possibly executed by Aidan Murphy;
(d) that many of the secondary books were produced from what appeared to be a common computer;
(e) that some of the secondary books (including the 2005 Diary at D. Exhibit 16 and the carbon copy rental books at D. Exhibit 6) appeared to have been the work of Patrick Murphy and
(f) that the documentation relating to purchase, feeding, expenses, the Department of Agriculture among, others supported the conclusion that each herd was, in reality, part of a singular Murphy farming operation controlled by Patrick Murphy.
Summary of the DPP’s Submissions
107. The MGO Book was evidence of a central bookkeeping system which recorded sales and purchases of the different individuals including Thomas, Frank and Rosemary Murphy. Frank and Rosemary Murphy filed tax returns with respect to their herds. The witness rejected the defence’s suggestion that it was one big operation run by Patrick Murphy. There were clear references in prosecution Exhibit 22 to expenditure being taken out or money withdrawn from the business for the benefit of Thomas Murphy, notwithstanding the odd nature of the bookkeeping system itself. While there was evidence to suggest that Patrick Murphy had been using other bank accounts or other means of moving money around he was not so using the Thomas Murphy account. The Chartered Accountant said that the evidence was inconsistent with Patrick Murphy using the bank account to facilitate the running of his cattle business relating to the 24X herd. There were clear linkages between transactions from Thomas Murphy’s account and the activities related to herd “24X”. A number of entries in Defence Exhibit 18 referenced “Tom’s herd”, indicating that it was considered a separate venture within a system of common administration. He accepted that there was evidence across all the documentation of a single bookkeeper keeping track of the business side of the three herds, but common administration of this kind was not out of the ordinary in the course of business. It did not indicate that this same person was in charge of the business as a whole.
108. The income generated from the business was divided among a number of persons including the accused in accordance with the level of activity taking place in respect of their individual herd numbers. The commonalities related to administration and expense sharing. Far from raising a reasonable doubt as regards the presumptions contained in s. 1078B, this evidence supported the presumptions. In such circumstances, the Court was clearly entitled to be satisfied beyond a reasonable doubt that the bank account was at least to some extent operated by the Accused including payments into his personal pension fund to his benefit.
Discussion
109. The trial court reached a conclusion on this evidence which is expressed as above recorded. The defence did not have an obligation to prove anything either generally or in relation to particular documents. However, the presumptions in relation to the documents made it unnecessary to establish their precise provenance. The meaning to be ascribed to the contents of the documents remains to be proved and this was done by adducing the evidence of witnesses including the Chartered Accountant. Insofar as there was any burden on the accused, it was to raise a reasonable doubt in respect of any particular document or documents, the onus in those circumstances is described as the lowest known to the law of evidence. See for example People (DPP) v Smyth [2010] 3 IR 688. As to the case generally, again the only burden that rests on the accused as an evidential one in face of a prima facie case being established by the prosecution. But it is not simply a matter of the defence putting forward a hypothesis and challenging the prosecution to disprove it. There must be evidence before the court even to raise a reasonable doubt. The court can only proceed on the basis of evidence. Therefore, insofar as this witness rejected the theory put forward by the defence as being apparent from the documents, that represented evidence for the prosecution but not for the defence. There could of course be circumstances in which the nature of the documents themselves and their contents would represent sufficiently clear evidence to raise a reasonable doubt but that is not the situation that obtained in this case. It follows that the Special Criminal Court was entitled to come to the conclusion that it did in respect of this documentary material.
Revenue Bureau Officer 35
Judgment of the SPECIAL CRIMINAL COURT
“5. In addition to the evidence which the prosecution said established that the accused was carrying on the said farming activity and was a chargeable person within the meaning of the legislation, the prosecution sought to rely upon certificates issued pursuant to section 951(10) of the Taxes Consolidation Act 1997. Those certificates are signed by an officer of the Revenue Commissioners in respect of each of the periods of assessment in question and they are to the effect that the accused was a chargeable person and that a return was not received from the accused on or before the return date for that particular period. One such certificate reads as follows:-
"Certificate of officer of the Revenue Commissioners pursuant to section 951(10) of the Taxes Consolidation Act 1997 prosecuted … the Director of Public Prosecutions accuse Thomas Murphy in accordance with the provisions of section 951(10) of the Taxes Consolidation Act 1997, I hereby certify that I have examined the relevant records and that it appears from those records:
(a) that as respect a chargeable period, namely the year of assessment 1996 to 1997 a person named Thomas Murphy of Ballybinaby, Hackballscross, Dundalk, County Louth, the above named accused, is a chargeable person; and
(b) that on or before the specified return date for the chargeable period, namely 31st of January 1998, a return in the prescribed form was not received from that chargeable person namely the said Thomas Murphy."
The same was dated 21st of September 2006 and signed Criminal Assets Bureau, Officer of the Revenue Commissioners, Criminal Assets Bureau.
6. In addition to proving the said certificates the witness known as Revenue Bureau Officer 35 gave evidence of having examined all the relevant documents and being satisfied that the accused was a chargeable person and that he had not made returns. However, the Court has had the benefit of all of the evidence and, leaving the certificates aside it is suggested that all of the evidence is sufficient to satisfy the Court beyond a reasonable doubt that the accused was in receipt of income from the sale of cattle and indeed he used it for his own benefit”.
110. The court of trial enumerated matters that led it to its conclusion that the accused was guilty of the offences in the indictment, concluding with a statement that it had considered the defence that it was Patrick Murphy who was the chargeable person. The court agreed that Patrick Murphy was a chargeable person but held nevertheless that that “did not in any way negate the findings in relation to the accused’s farming activities at the material times.” The court added in the following paragraph: “The said finding of fact is corroborative of the certificates above referred to and the court is satisfied, beyond reasonable doubt, that the accused was, in respect of all of the material periods, a “chargeable person”.
111. Whether the reference to the finding be considered specifically in relation to the immediately preceding sub-paragraph or to the enumerated facts more generally, it is clear that the court was of the view that the other evidence corroborated the certificates of the Revenue Bureau officer. This was a somewhat limited reliance on the certificates themselves.
112. The Special Criminal Court received certificate and oral evidence from an anonymous Inspector of Taxes identified as “RBO 35” on the issue of Thomas Murphy’s status as chargeable person. The revenue bureau officer had been appointed to the Criminal Assets Bureau (CAB) and investigated the tax affairs of individuals to determine if criminal offences or civil infractions of law had been committed. RBO 35 provided tax certificates and forms indicating that Thomas Murphy had not submitted tax returns in the prescribed form between 1997 and 2004.
113. The certificates were issued under section 951(10) of the Taxes Consolidation Act 1997 which provides:
“(10) A certificate signed by an inspector which certifies that he or she has examined the relevant records and that it appears from those records—
(a) that as respects a chargeable period a named person is a chargeable person, and
(b) that on or before the specified return date for the chargeable period a return in the prescribed form was not received from that chargeable person,
shall be evidence until the contrary is proved that the person so named is a chargeable person as respects that chargeable period and that that person did not on or before the specified return date deliver that return, and a certificate certifying as provided by this subsection and purporting to be signed by an inspector may be tendered in evidence without proof and shall be deemed until the contrary is proved to have been signed by that inspector.”
Summary of the Appellant’s Submissions
114. The appellant submitted that RBO 35’s certificates should not have been admitted into evidence on two grounds. In the first instance, they plead his lack of independence. He was not engaged in mere certification as the trial court suggested. They argue that the Special Criminal Court accepted the certificates as evidence of guilt, creating a rebuttable presumption that shifted the burden of proof to the accused. In those circumstances a higher standard of independence and fair procedures was required which the witness failed to achieve. The appellant relies on Damache v. Director of Public Prosecutions, Ireland and the Attorney General [2012] 2 IR 266. While not wishing to have s.951 (10) of the TCA 1997 declared unconstitutional, it is submitted that certification evidence is limited by considerations of constitutional justice [Re Article 26 of the Constitution and the Employment Equality Bill 1996 [1997] 2 IR 321 and in DPP v. McDonagh [2009] 1 IR 767].
115. The second ground of challenge to the admissibility is that the prescribed forms of tax returns were not proved. A form prescribed by the Revenue is distinct from one merely created by them. Section 1078B of the TCA 1997 allows for the presumption that a document purported to have been created by a person, will be considered to have been so created, but this does not extend to prescription of a document. In order to satisfy the evidential burden, the appellant submitted that the particular Revenue Commissioner who prescribed the forms would have to give oral evidence of same. They emphasised that under Director of Corporate Enforcement v. Michael Bailey and Thomas Bailey [2001] 2 ILRM 13 a certification process cannot be used to adduce evidence which would otherwise be inadmissible. Consequently, the appellant submits that direct evidence of the key ingredient of each charge, the “prescribed form”, could not be found and thus, Thomas Murphy should have been subject to a directed acquittal.
116. In regard to the officer’s evidence, the appellant argues that the investigation carried out by RBO 35 was tainted by a lack of independence or impartiality. He was part of the investigation team, had meetings with the core investigators and his reported to the Chief Bureau Officer. The lack of “Chinese walls” within the CAB gave the witness access to investigative material such as the Chartered Accountant’s analysis. RBO 35 attended the search which took place on 9th March 2006 and interviewed Rosemary Murphy on whether she had been actively engaged in farming. The officer investigated potential offences under the Taxes Acts. RBO 35 admitted it was difficult to point to any commercial or farming reason why the 160 herd number had been transferred from Patrick to Rosemary and Maria Murphy in March 2000. The appellant submitted that RBO 35 had been engaged in an unsatisfactory face-value assessment of the various documents, absent any contextual background information which may have influenced his analysis. If it said "Thomas Murphy" on the signature, he took it to be Thomas Murphy. That was the presumptive base of his certificates.
117. The submissions also criticised the officer’s failure to take into account a civil settlement between CAB and Patrick Murphy. The trial court failed to give due regard to these factors when it gave its admissibility, direction and verdict rulings.
Summary of the DPP Submissions
118. The respondent submits that Damache can be distinguished on the facts as it involved a search warrant which is a different creature from that of a tax certificate. The courts have held that a more rigorous standard of independence must be applied with respect to the issuing of a search warrant. A Tax Certificate is comparatively less significant as it is an evidential tool for a prosecution and the accuracy of a certificate may be tested through cross-examination, thereby ensuring the rights of the accused person, as was done in this case. It was argued that the jurisprudence cited by the appellant envisaged greater consequences on foot of certificate evidence than was the case here. The supporting documentation has also been available for the critical eyes of the Court ensuring that fair procedures have been followed. As was noted by the Supreme Court in Criminal Assets Bureau v. PS [2009] 3 IR 9;
"A central issue in the case was the defendant's contention that the tax assessment was invalid, that he had validly appealed the assessment and therefore the assessment had not become final and conclusive. [These] two pieces of evidence were given on certificate. It was held in the circumstances that it was difficult to see that the defendant was prejudiced by the giving of evidence by way of certificate. As a matter of law however I am satisfied that there is in the present case no objection to such evidence being given by certificate where that evidence is prima facie evidence only.”[At para.49]
119. On the issue of prescribed forms, the Director argues that they were produced in court and that as a tax inspector; RBO 35 was entitled to give evidence as to proof. Even in circumstances where that was not the case, the forms themselves purported to have been prescribed and thereby created by the relevant Revenue Commissioner allowing it to fall within s.1078B. Moreover, the tax certificates themselves raised the rebuttable presumption as to the failure to make returns in the prescribed form, thereby shifting the burden of proof to the accused. The prescribed forms being themselves admissible, they could be proved by certification. The current proceedings can therefore be distinguished from Director of Corporate Enforcement v. Michael Bailey and Thomas Bailey [2001] 2 ILRM 13 in that the reports sought to be proven in that case by way of certification were prima facie inadmissible. The suggested conclusion is that if, as has been conceded, no returns were received then they were not received in the prescribed form or otherwise and as such, Thomas Murphy was a chargeable person.
120. The trial court held that other evidence corroborated the tax inspector’s certificates, although that is of course not an essential requirement of certification. While RBO 35 may have made his conclusions on the issuing of a Tax Certificate on the basis of a number of documents, that material is independent of the certificate evidence and is corroborative in that regard.
121. The respondent argued that there are strong and practical policy reasons for admitting certificate evidence, particularly in cases where the Revenue seeks to show that no tax returns have been made. The Director submits that there is no statutory requirement of independence with respect to the issuing of a certificate by a Tax Inspector. A Tax Inspector could not issue such a certificate without carrying out an investigation. Any criminal enquiries would normally come as a result of the investigation carried out by Revenue, but be considered separate from the tax issue. Thomas Murphy was one of many individuals whom RBO 35 was tasked with investigating. RBO 35 clarified that his access to the central CAB system only gave him access to primary documentation and not the reports of other officials. Any other reports given or considered by RBO 35 were viewed through a tax inspector lens and no more.
Discussion
122. The Special Criminal Court held that the evidence of this witness was admissible. Under the statutory provision this was clearly a correct decision. In regard to the proof of the prescribed forms, the issue in the case was not whether the accused had submitted returns but in the wrong form. The court was entitled in the circumstances to take account of the evidence of the witnesses are asked to the existence of and nature of and the particular form of the prescribed forms. The structure of the statutory scheme provides for certification and that necessarily implies some form of investigation being carried out. It is correct as the Director submits that the officer was available for cross-examination on the basis of his certificates. The court must take the section as being constitutional and that was nothing about the conduct of the trial in respect of this witness and his evidence that conflicted with fair procedures in the context of the legislation. It is also relevant that the trial court made very limited findings in respect of the certificates issued by the Revenue Bureau Officer. The Court rejects the grounds of appeal relating to this evidence.
The Defence’s Handwriting Evidence
The Judgment of the SPECIAL CRIMINAL COURT
“9. The handwriting expert examined questioned signatures provided to him and found a number not to have been signed by the accused. They also provided him with signatures attributed to the accused which on analysis he found to be genuine. However prosecution exhibit 30, which contains approximately 30 cheques drawn on Thomas Murphy's said account and signed by a T Murphy were not part of the questionable signatures submitted to him. Having regard to the totality of the evidence, the Court finds that the said cheques were signed by the accused…
13. The following presumptions are inter alia inserted by section 161 of the Finance Act 2003, namely and we quote:
"(3) Where a document purports to have been created by a person it shall be presumed, unless the contrary is shown, that the document was created by that person and that any statement contained therein, unless the document expressly attributes its making to someone else, was made by that person.
(4) Where a document purports to have been created by a person and addressed and sent to a second person, it shall be presumed, unless the contrary is shown, that the document was created and sent by the first person and received by the second person and that any statement contained therein (a) unless the document expressly attributes its making to some other person, was made by the first person and (b) came to the notice of the second person.”
Summary of the Appellant’s Submissions
123. The trial court failed to give due regard in its judgment to the strong evidence of forgery committed with respect to the Department of Agriculture herd “24X” application forms. Furthermore, it had failed to adequately weigh the uncontested evidence of Mr. Cosslett when considering whether the prosecution’s evidential burden had been discharged, particularly in light of the prosecution electing not to call their own handwriting expert.
124. The appellant submitted that Special Criminal Court had inappropriately engaged in selective reading and choose to interpret the evidence in the light least favourable to the accused. At best, the trial court is said to have misunderstood and at worst, wilfully ignored the comparative scale of analysis present by Mr. Cosslett’s evidence.
125. They further argue that the trial court failed to recognise that even where Mr. Cosslett’s evidence found limited evidence of forgery that, in and of itself, would be sufficient to raise a reasonable doubt. As such, the Special Criminal Court failed to meaningfully engage with the viability of the appellant’s alternative narrative.
126. The appellant contends that the trial court did not consider thoroughly the evidence of Mr. Garvey which suggested that Patrick Murphy may have forged his signature on a Department of Agriculture form. This suggests that Patrick Murphy was no stranger to forgery and could well have doctored Thomas Murphy’s signatures on a number of documents.
127. The trial court was not entitled to hold that the 30 cheques encompassing Prosecution Exhibit 30 were signed by the Accused. Firstly, the statutory presumption as to documentary creation did not apply to cheques. Secondly, no expert evidence was given on their authenticity. Thirdly, the Special Criminal Court merely pointed to the totality of evidence in finding these cheques to have been signed by Thomas Murphy and did not point to any specific evidence upon which the learned trial judges grounded their conclusions.
128. The appellant further submits that Butler J. inappropriately took into account external factors when considering the credibility of the appellant’s alternative case. They point, in particular, to interjections during the closing of submissions in which Butler J. noted that there was a “great sense of unreality” to the appellant’s case. These comments were brought up in relation to the presence of Patrick Murphy in the court, despite Counsel for the appellant’s suggestion that he was the architect of the entire enterprise. It is also argued that comments as to the appellant’s right to call whatever evidence he wished, suggested an inversion of the burden of proof and a judicial attitude at odds with the right to a fair trial under Article 38 of Bunreacht na hÉireann and Article 6 of the ECHR.
129. The appellant argues that the judgment of the trial court never indicated which documents served to corroborate the certificates of RBO 35 and if any presumptions arose from those documents. In the absence of any such consideration in the judgment, it cannot be said that the appropriate weight was given to the contested signatures and the expert evidence of same. Indeed, they go as far to say that the Special Criminal Court was “illogical” in its bland dismissal of the appellant’s alternative narrative where there was a real risk of forgery tainting the judgment:
“It is suggested that had the aforementioned process of individual, properly focused, decision making taken place, then, the only viable outcome would…have been a judicial refusal to draw the invited presumptions of creation and or receipt, on the basis of the strong expert evidence that some of the documents in question had probably been forgeries…whilst none of the documents could be proven, on the expert evidence, to have been authored and/or signed by the Appellant.”
Summary of the DPP Submissions
130. The handwriting evidence adduced by the accused was unsatisfactory and could not lead one to conclude that forgery had taken place. Mr. Cosslett’s examination did not take place under stereomicroscope, but rather a small magnifying lens. Furthermore, Mr. Cosslett did not receive up-to-date signature specimens from Thomas Murphy, relying instead on two documents he was instructed by the defence to accept as being signed by the accused. The witness accepted that he normally would have taken longer to analyse the documents. Thus, the reliability of his evidence was in question.
131. Mr. Cosslett gave evidence that on the balance of probability Thomas Murphy more than likely signed documents consisting of the Declaration regarding renting land dated April 1995, Declaration regarding renting land dated 7th March 1994, an EU Aid Application dated the 7th May, 1996, an EU Aid Application dated 29th of April, 1997 and an EU Aid Application dated 13th April 2004.
132. The presumption contained in s. 1078B could not be reasonably set aside on the basis of expert evidence that the person presumed by the statute to have signed same, did on the balance of probability more than likely signed same.
133. Mr. Cosslett confirmed in evidence that Prosecution Exhibits 38 and 39 (being the Irish Life Pension documentation as outlined above) were submitted to him and treated as original specimens - confirming that the appellant enjoyed (as well as being entitled to enjoy) the monies in the bank account which had formed part of the prosecution case as to chargeability.
134. No evidence had been adduced which challenged what appeared from the face of the documents and any such presumption is undisturbed in relation to these documents dealing with application for area aid for 1996, 1997 and 2004 and two land rental declarations.
135. Mr. Cosslett did not examine, or question the authenticity, of prosecution Exhibit 30 being pre-signed cheques drawn on the account of Thomas Murphy and bearing his signature. The court pointed out that the validity of these signatures had not been questioned by the handwriting expert. The court expressly considered the totality of the evidence in coming to its conclusion on the cheques. The trial court was entitled to make findings in respect of these documents that were not subject to review by an expert whose scope of investigation was selected by counsel for the appellant.
136. It does not follow that if questions were raised on the genuineness of some signatures that the trial court had to accept there were questions on all purported signatures and documents. Any “conclusive” findings were only as regards portions of the documents in question and not the totality of the documentary material.
137. The use of an agent, manager or other third party to take care of aspects of the trade was an established practice and could account for some of the questioned signatures.
138. Contrary to the submissions of the appellant, Mr. Garvey’s comments did not amount to an accusation or suggestion of forgery. Mr. Garvey merely noted that he did not recognise a particular signature as his own.
Discussion
139. Mr. Stephen Cosslett, a forensic document examiner, prepared two handwriting analysis reports which were furnished to the Special Criminal Court and gave oral evidence in respect of documents provided to him by the appellant’s solicitors. He described his experience and methodology. He outlined the “A-G” scale used in his reports to express opinions. An “A” opinion was “conclusive evidence” that a given person had written a document or signature. Where a “B” opinion was given there was “strong, but not conclusive evidence” that someone was a document’s author or signatory. “C” opinion meant that there was “some limited evidence” of authorship. If a “D” opinion was given the available evidence was “inconclusive”. An “E” opinion was where there was “limited evidence” that someone did not write a particular document or signature, based on the balance of probabilities, but it could be ruled out. An “F” opinion was where there was “strong evidence” that someone did not write a particular document or signature. Finally, a “G” opinion was one that indicated, based on “conclusive evidence”, that an individual was not the author of a given document or signature.
140. Mr. Cosslett’s first report, dated 20th November 2015, dealt with questioned signatures on four prosecution exhibits with a two-fold purpose: firstly, comparing the signatures in Prosecution Exhibits 82, 84, 87, and 91 with specimen signatures in exhibits attributed to Thomas Murphy; secondly, to determine whether or not the handwriting found in prosecution Exhibits 82, 84, 87, and 91 matched that seen in Prosecution Exhibit 73, tax return forms in Patrick Murphy’s name.
141. He concluded in respect of the signatures on the four documents, Exhibits 82, 84, 87, 91:
“In my opinion there is strong evidence that Thomas Murphy did not sign Exhibits 82, 84 and 87, and some limited evidence that he did not sign Exhibit 91.”
142. In regard to the writing other than signatures, namely writing on forms or documents, he declared:
“In my opinion there is conclusive evidence that the author of Exhibit 73 wrote out Exhibits 82, 84 and 87. I cannot offer any reliable opinion as to whether or not the same person wrote out Exhibit 91”.
143. These four documents are to the same effect, namely notifying the Department of the transfer of entitlements. They are headed: Department of Agriculture and Food; Transfer of Entitlements. Exhibit 82 is dated 30 - 3 - 2007; Exhibit 84 is dated 30 - 4 - 2008; Exhibit 87 is dated 8 - 5 - 09; Exhibit 91 is dated 9/5/2014. Each document is signed “T Murphy” as the transferor and in each case the transferees are Rosemary and Maria Murphy. The forms contain the names and addresses of the parties which are filled in by hand in block capitals; they also have herd numbers of the transferor and transferees - the latter although two persons appear to have one herd number, namely 160. In the 2007 form there also appear PPS numbers. There is very little writing and some variation in the way the signatures of the transferees appear as between the 2007 form and the later ones.
144. Mr. Cosslett drew a distinction between the form for 2014 as compared with the earlier three which span 2007 to 2009. The three are all written, he said, in a connected, cursive style and corresponded sufficiently closely to the specimens of Mr. Murphy that he was given by the solicitor “such that they must either be genuine signatures written by him or deliberate attempts by some other person to copy his signature.” He reported that the questioned signatures were of much poorer fluency than the specimens because they contained unexpected pen lifts compared with the specimens and they differed in detail. These differences “provide strong evidence that Mr. Murphy did not sign any of these forms and I consider it unlikely that he did so.” His opinion in regard to Exhibit 91, which is of course 5 years after the last of the three similar forms, was that on balance he thought it more likely that some person other than Mr. Murphy signed this form.
145. Mr. Cosslett considered Exhibits 82, 84 and 87 to be essentially similar. The choice was between being genuine signatures of Mr. Thomas Murphy or deliberate attempts by somebody else to copy his signature. In the case of Exhibit 91 there is a T. Murphy signature just as there is on the others but in this case the signature and those of the transferees, Rosemary Murphy and M. Murphy, are witnessed by a solicitor and dated. The solicitor’s name appears to be Thomas Tiernan from the block capitals version that is provided on the form. The witness separately signed for the signatures of the transferor and the transferees. However, Mr. Cosslett did not make any enquiries to clarify the position. It may be that the fact that the signature of T. Murphy was witnessed by a solicitor or purported to be witnessed by a solicitor may have made Mr. Cosslett doubtful but it is difficult to understand why he would not have sought to elucidate the position. In cross-examination, counsel for the prosecution put to Mr. Cosslett that it was the same solicitor who had given him his instructions; it is certainly the same surname as the solicitors who engaged Mr. Cosslett. The matterof the witnessed signatures that did not excite the investigator’s curiosity does not end with Exhibit 91. It also affects Exhibit 87.
146. Exhibit 87 is dated 8 May 2009 so it is the third in a series of annual transactions whereby “T. Murphy” transferred entitlements as in the other forms. Mr. Cosslett had no doubt about this one, which was the subject of a similar opinion as in Exhibits 82 and 84. We may therefore infer that the same features are present in each of these examples of the signatures of “T Murphy”. There is strong evidence according to Mr. Cosslett that Thomas Murphy did not sign any of these forms. And yet this 1987 form also has the signatures witnessed by a solicitor. Since the court is not a handwriting expert no conclusion can be drawn about the identity of the solicitor although from a layman’s point of view the signature is remarkably similar to that of Thomas Tiernan. This time, however, the form did not seek to have the name of the solicitor provided in block capitals. The form does require that all signatures be witnessed by persons of particular descriptions which include solicitor. If the signature of the solicitor attesting the signatures of the persons engaged in the transfer of entitlements is to be relied upon, it means that Mr. Thomas Murphy did indeed execute the 1991 transfer of entitlements and also the 1987 one. Given the similarity as found by Mr Cosslett, the inference must be that his alternative, namely, that the signatures on these questioned documents are indeed those of Mr. Thomas Murphy, is the correct one. What is certainly clear is that there can be no basis for declaring that there is uncontested evidence of forgery in respect of these documents.
147. In regard to Mr. Cosslett’s evidence about the filling in of the forms, it is unremarkable that a farmer or cattle dealer or other person might get a member of the family to fill in forms with numbers and details. Mr. Murphy the accused is unmarried and it would seem natural and understandable that a niece or nephew or other relation would help with the administration that goes with business. It is not a suspicious or sinister circumstance that some other hand might have written the contents of the forms. Indeed, the fact that they may appear to be similar in writing as to contents tends to confirm this reasonable possibility. But that does not go anywhere near establishing fraud or deceit or forgery, not even to the extent of legitimately raising an inference that might reasonably be true or a reasonable doubt.
148. The witness’s second report, dated 27th November 2015, examined another batch of prosecution and defence exhibits. Mr. Cosslett’s goal was to determine whether or not Thomas Murphy had signed any of the documents listed. Other documents were compared to determine if they were written by the same person. Mr. Cosslett accepted that some of his analysis was based on scanned copies of varying quality which would impact his ability to give definitive conclusions.
149. Mr. Cosslett’s conclusions were first that there was some limited evidence that Thomas Murphy did not sign a number of questioned exhibited documents, including a 1999 EU Area Aid Application dated 21st April 1999. That means that the evidence was weak, but on balance, Mr. Cosslett was of the view that Mr. Murphy did not sign the document. A similar opinion was expressed in relation to three cheques. We have the position therefore that these four documents come into the category of showing weak evidence that they were not written by Mr. Thomas Murphy.
150. He reported limited evidence that two signatures in the names T. Murphy and Aidan Murphy were written by the same person and limited evidence that they were not written by Thomas Murphy. So, here we have two examples of limited evidence which means that the evidence is weak (a) that they were written by the same person and (b) that they were not written by Thomas Murphy. These findings do not seem to add to the case one way or another.
151. This report said that the evidence whether Mr. Murphy wrote any of the other questioned signatures was inconclusive; no reliable opinion as to their authorship was possible.
152. Mr. Coslett examined defence exhibit documents which were found in the course of a search under warrant that took place on 9th March 2006 in a shed on land registered to Matthew Kane but which he said he had sold to Patrick Murphy some years previously. The material was provided on disclosure. Reference is made to this material in the discussion of the evidence of the Chartered Accountant as appears elsewhere in this judgment. His examination was directed to determining whether documents appeared to have been written in whole or in part by the same person. One of the documents was a 2005 diary which Mr Cosslett said bore handwriting from more than one person, “albeit many of the entries are similar.” He identified some 12 pages in the diary as having been written by one person but he did not exclude the possibility that small additions might have been made by someone else.
153. Mr. Cosslett reported “I have found significant similarities between the following entries such that, when considered together, there is in my opinion conclusive evidence that at least the bulk of these entries have been written by one person.” These documents were the diary entries just mentioned, the tax return document of Patrick Murphy Exhibit 73 and a series of specific entries in documents or whole documents or words in documents comprising declarations regarding rented land.
154. The expert referred to defence Exhibits 6A and 6B which are pages from duplicate books that have the name Garvey on the cover and he recorded the opinion that there was strong evidence that the bulk of the entries were written by the same person.
155. In his evidence in court, Mr. Cosslett accepted in cross-examination that the following documents were probably signed by Thomas Murphy, the accused, namely:
07-03-1994: Declaration regarding rented land
24-04-1995: Declaration regarding rented land
07-05-1996: EU Area Aid Application
29-04-1997: EU Area Aid Application
13-04-2004: EU Area Aid Application
156. What Mr. Cosslett says about these is contained at para. 5.5 of his second report. At para. 5.4, he says that he considered the possible explanations being that Thomas Murphy signed the documents or that some other person attempted to copy his signature or that some other person writing in a similar style was responsible. As between these possibilities, he says it has not been possible to determine conclusively which of them is most likely, which appears to me to be a considerable understatement. He acknowledges that no strong opinion is possible, but continues:
“There is some limited support that Mr. Murphy wrote these signatures detailed in paragraph 5.3 above. The possibility that some other person was responsible can by no means be excluded.”
In cross-examination, Mr. Cosslett agreed that his view was that Thomas Murphy wrote these signatures as a matter of probability.
157. Last-minute additions were made to the report and discussed in court. Among the references was prosecution Exhibit 48, as to which Mr. Cosslett was of the opinion that the handwriting featured limited evidence of it having been the work of Thomas Murphy. That is the herd number application form that Mr. Rafferty had on the occasion of his visit to the appellant’s land. This is how he expresses his view: “The signature on Exhibit 48 is similar in a number of respects to the specimens of Mr. Murphy but there are also some features that cannot be matched. It has not been possible to determine conclusively which of these explanations is most likely. No strong opinion is possible but there is some limited support that Mr Murphy wrote the signature. The possibility that some other person was responsible can by no means be excluded”.
Conclusions
158. The system of scaled opinions expressed by this expert is essentially simple, which is more clearly seen if the range is expressed on a numerical scale. The mid-point is zero, representing neutrality or Mr. Cosslett’s category of inconclusive. Writing placed at 0 is when he cannot express an opinion as to whether it was written by the appellant or another person. Increasing degrees of confidence in his opinion on the part of the examiner allow him to go from 1 to 3 on the scale, either positively for writing of Mr. Murphy himself or negatively for some other person. Thus the scale ranges from +3 where Mr. Cosslett would express himself certain through 0, representing no opinion, to -3 where he is certain it was written by some other person, not necessarily identified. The expert’s own categories from A to G may be somewhat confusing, as may his mode of expression. When Mr. Cosslett speaks of conclusive evidence and other classes of evidence, he is actually referring to his opinion of the authorship of a document and the degree of his confidence as to its correctness. On that very point, he was careful to apply an important caveat.
159. In each of his reports, Mr. Cosslett begins his section headed ‘Findings’ with the statement that his interpretations and conclusions are based on the background information available to him at present, and that if any of the information changed or was found to be incorrect, he might need to reassess his findings. It was established in cross-examination by Mr. Byrnes S.C. for the prosecution that Mr. Cosslett did not in fact receive any background information. Neither did he seek any. He received the documents that were presented to him as being genuine signatures or writing of Mr. Murphy and he compared other documents that were also presented to him.
160. In the case of two of the documents that he examined for his first report, namely, prosecution Exhibits 87 and 91, the signatures are witnessed by a solicitor. It would appear to be a solicitor in the firm that is acting for the accused and the firm that instructed Mr. Cosslett. It is a serious deficiency of the professionalism and methodology of Mr. Cosslett that he did not make enquiries about this matter. When he was cross-examined about it, he said that there were occasions he had encountered where persons acknowledged or admitted that they had written documents when they had not done so. That was not a satisfactory explanation for the failure to make any enquiry in respect of these two exhibits. Mr. Cosslett distinguishes between those two because he says that the evidence that Thomas Murphy did not write Exhibit 91 is less strong or convincing than in the case of Exhibit 87. But each of them is said to be witnessed by a solicitor. If Mr. Cosslett’s opinion about prosecution Exhibit 87 is undermined, it necessarily also weakens what he says about Exhibits 82 and 84.
161. He acknowledged certain difficulties about his task and conceded others when cross-examined, including the fact that he was working from copies or scanned documents and that for his second report he did not have the appropriate microscope and only used a magnifying glass. He had only a small number of samples of handwriting that were asserted to be genuine. He did not have information as to state of health or any other background.
162. It is difficult to ignore these manifest deficiencies, particularly with regard to the solicitor witnessed signatures. The court of trial would have been justified in discounting the evidence to reflect these weaknesses. In fact, the Special Criminal Court drew attention to certain features of the handwriting evidence which it considered relevant. It may be inferred that the trial court did not think that this evidence was sufficient to raise a reasonable doubt in regard to the other evidence which it found sufficient to warrant the conviction of Mr. Murphy. The court did not however reject or devalue Mr. Cosslett’s reports and testimony for any frailties it may have exhibited. This court accordingly approaches his evidence for the purpose of the appeal by considering it as reliable and credible. The more fundamental question about Mr. Cosslett’s evidence concerns its relevance to the case.
163. Clearly relevant is Mr. Cosslett’s opinion is that on the balance of probabilities Thomas Murphy did sign some six specific documents which go to establish his involvement in farming activity. They include the original application for a herd number for 24X which Mr. Rafferty had with him on the occasion of his visit to the farm that he knew to be owned by Thomas Murphy. It was submitted that because Mr. Cosslett expressed himself by reference to the civil standard of proof, it necessarily followed that there must be a reasonable doubt so as to exclude reliance on the document. That is however a mistake of law and of logic. The evidence actually tended to prove the guilt of the accused. It would not of course be sufficient to do that but it is positive evidence to be considered in the case as a whole. In a disputed authorship challenge it is evidence—not conclusive but relevant and admissible—of authenticity. The Special Criminal Court was correct to refer to this evidence and prosecuting counsel was entitled to cross-examine on this point as he did. Thus, far from undermining the prosecution case, these documents bolstered it.
164. Mr. Cosslett did not examine or was not asked to examine a large number of documents including prosecution Exhibit 30 consisting of a large number of cheques, as the trial court observed. That was a factual observation that was relevant to the handwriting issue.
165. Taking the expert’s findings at face value, he established that a number of documents that purported to be signed by Mr Thomas Murphy were not signed by him. That is just what the Special Criminal Court said in its judgment. There were no larger conclusions to be drawn from Mr. Cosslett’s evidence. It was of course open to the defence to seek to undermine the prosecution case by reference to disputed documents and counsel did so by cross-examining the Chartered Accountant and other witnesses. But the handwriting expert’s evidence alone was insufficient to raise a reasonable doubt as to the authenticity of all the documents on which the prosecution relied to make its case. The testimony was restricted to a limited number of documents, it validated some and it expressed neutrality about a large number of others.
166. It should also be noted that there is an obvious and fundamental distinction between evidence as to signature and evidence as to filling in or completion of a form or document. As observed above, there is nothing even suspicious about a person filling in a form for somebody else. Indeed, even in the case of the signature, it does not follow that somebody writing another person’s name is committing forgery; that requires an intention to deceive. And for that to arise as an issue there is need for some evidential basis.
Verdict and Reasons
Summary of the Appellant’s Submissions
Verdict
167. It was argued that the trial court was “legislatively obliged” to engage in an individual, document by document, decision making process as to whether all, or any, of the relevantly engaged documents should have been properly presumed to have been created and/or received by the appellant. In such circumstances, the Special Criminal Court would have required a series of individual decisions, rather than the apparent “job lot” with which it carried out its assessment of the voluminous documents.
168. The appellant argues that the learned trial judges failed to appreciate that even the limited expert opinion that Thomas Murphy might have signed some of the signatures, “subject to the heavy caveat” that the reasonable possibility that someone else had been responsible for those signatures could not be ruled out, was sufficient to raise a reasonable doubt. The Special Criminal Court engaged in an unfairly selective, partial and incomplete analysis of Mr. Cosslett’s evidence in its judgment. A reasonable tribunal of fact, properly applying the guiding principles for identifying reasonable doubt would have refused to draw the invited presumptions in light of Mr. Cosslett’s evidence.
169. The trial court relied on the certificated opinions of RBO35 as if they were proof of the case in and of themselves. The court’s comments as to documentary material being corroborative of the certificates ignore the fundamental principle that corroboration should be both independent and credible. The suggestion that an unspecified body of documents corroborated the certified opinions of RBO35 was unsatisfactory given the lack of detail on whether documentary presumptions had been drawn correctly or otherwise.
170. The appellant submitted that the Court failed to deal with the s. 16 applications in a fair and lawful manner.
171. The court did not deal with the evidence, submissions and issues in the correct sequence. It should have begun with the issue of documentary presumptions, before proceeding to certificate presumptions, then addressing the question of the appellant’s “reasonable doubt” evidence.
172. The appellant submitted that the Court erred in law and in fact in its ultimate verdict in: -
“(a) Failing to acquit the appellant in circumstances where there had been no adequacy of sufficiently cohering, reliable, properly admitted evidence, upon which the court could or should have properly concluded beyond a reasonable doubt that the appellant was guilty on all and/or any of the Counts (grounds 1 and 2).
(b) Failing, when evaluating the circumstantial evidence in this circumstantial case, to have any or adequate regard to the existence of those co-existing evidenced circumstances which weakened, undermined and cumulatively destroyed the invited prosecution inferences and conclusions, and supported instead the never extinguishable alternative perspective of the appellant, as well as also critically informing the reasonable doubt issues relating to the discharge of the evidential burden on the invited prosecution statutory inferences (ground 32).
(c) Failing to address the arguments advanced on behalf of the appellant in closing in any meaningful manner, thereby failing to afford the appellant a fair trial and a reasoned verdict (ground 43).
(d) Failing to illustrate, either adequately or at all, any reasoned basis for the rejection of the appellant’s alternatively invited inferences and/or why and how the prosecution case had been proved beyond a reasonable doubt in light of the inconsistencies, frailties, uncertainties and difficulties raised reference that evidence during the course of the trial which have been outlined in the foregoing grounds of appeal and which were raised during the Trial itself (ground 44).
(e) Engaging in a “job lot” analytical process as opposed to a necessarily individual, document by document and count by count analysis (ground 46).”
173. It is further submitted that:
“(a) the judgment of the court was biased and partial insofar as it failed to address any of the frailties, inconsistencies, contradictions and uncertainties in the Prosecution case in any adequate manner or at all. (ground 45)
(b) the verdict of the court was against the evidence, irrational, contrary to common sense and substantively and procedurally perverse for all of the reasons outlined above and that all of the aforementioned errors of law and fact were, for all of the reasons outlined above, contrary to the appellant’s rights to a fair trial and fair procedures under the Constitution and under Article 6 of the European Convention on Human Rights and Fundamental Freedoms. (ground 47)”.
Reasons
174. The appellant submits that the trial court in its rulings and judgment displayed a lack of well-developed and explained reasons, with the result that the basis of Thomas Murphy’s conviction is difficult to understand in a meaningful way. This undermines the appellant’s right to be heard and the verdict’s judicial accountability and is a sufficient self-standing ground of appeal: per Henry LJ in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 [at p.381-382].
175. The Director agrees that the Special Criminal Court was obliged to provide a reasoned judgement but submits that the verdict sufficiently set out its reasoning so as to enable the appellant or the public to understand why he had been convicted and to enable him to appeal. The reasons were given in a fashion that indicated which arguments were being accepted and rejected respectively. As stated in O’Donohoe v An Bord Pleanala [1991] ILRM 750 and approved by the Supreme Court in Oates v Browne and D.P.P. [2016] IESC 7;
“It is clear that the reason furnished by the Board (or any other Tribunal) must be sufficient, first to enable the courts to review it and secondly to satisfy the persons having recourse to the Tribunal that it has directed its mind adequately to the issues before it”.
176. The appellant accepts that the level of depth required of decision makers will turn on the individual circumstances, citing the view of Charleton J. in Lyndon v Judge Collins [2007] IEHC 487:
“I am satisfied as a matter of law that judicial bodies are required to give reasons for their decisions, but the extent to which judicial bodies are required to give reasons for their decisions depends upon the nature of the case that they are dealing with and the nature of the remedies that flow from such a decision;” [at para.7]
177. The court’s reasoning should be specific to the case and not so general as to lack clarity and precision. See Foley v Murphy [2008] IR 619, where:
“The level of generality of the reasons which she gave was too high such that one does not know to what extent evidence or any particular piece of evidence or the correspondence or the submissions or the legal issues as to costs or otherwise raised gave rise to her conclusion”
178. The appellant submits that the ECtHR in Ruiz Torija v Spain (1995) 19 EHRR 533 held that it is not defence to an action such as this to say that a submission was so clearly unfounded as to not warrant being addressed in a verdict. If a submission is “relevant”, it must receive a “specific and express reply” in the judgment [at para.30]. In Hiro Balani v Spain (1995) 19 EHRR 566, the relevance was found where an issue will be determinative if the applicant is successful.
179. The appellant submits that this judgment does not enable any appeal court to be satisfied that the trial court had properly addressed the appellant’s alternative case in full:
“In all of those circumstances, it is respectfully suggested that the Court erred, in both law and in fact, in:-
(i) failing to provide a reasoned judgment and/or any adequate reasons for its verdict in a manner consistent with the Appellant’s right to a fair trial and fair procedures pursuant to Article 38.1 and Article 40.3 of the Constitution and/or Article 6 of the European Convention on Human Rights and Fundamental Freedoms, and in further failing to clearly outline that it had properly considered all of the relevantly engaged legal issues and all of the relevant evidence and inferential invitations, on both sides, in a way that made clear the basis for that conviction, thereby rendering the verdict incapable of any meaningful appellate analysis, and rendering the trial unfair and the verdict unsatisfactory. (Ground 4)
(ii) Failing, in the absence of any reasoned indication that it had done so, before arriving at its ultimate decision on guilt, to properly make a number of crucially important and necessarily predicate, factual determinations, namely whether or not it was drawing all or any of the invited statutory presumptions. (Grounds 5, 7 and 8).
(iii) Failing to illustrate, in any reasoned fashion, whether or not those crucial and necessarily predicate determinations had been properly made. (Grounds 6, 7 and 8).
(iv) Failing, when evaluating the circumstantial evidence in this circumstantial case, to have any or adequate regard to the existence of those co-existing evidenced circumstances which weakened, undermined and cumulatively destroyed the invited prosecution inferences and conclusions, and supported instead the never extinguishable alternative defence perspective, as well as also critically informing the reasonable doubt issues relating to the discharge of the evidential burden on the invited prosecution statutory inferences (ground 32).”
Summary of the DPP Submissions
Verdict
180. The respondent rejects the premise that the trial court was obliged to engage in a document by document assessment of the presumed material in the judgment. The court referred to the examination of the evidence as a whole. It was sufficient that the learned trial judges set out those pieces of the evidence in respect of which it was satisfied beyond a reasonable doubt and how they did so. There was no failure to apply relevant legal principles including those concerning onus of proof, the burden of proof and the drawing of inferences.
181. The verdict discusses signatures attributed to the appellant in reference to the limited number of documents which the defence provided to the handwriting expert and attributed these to the appellant and which the handwriting expert treated as the signatures of the appellant. Explicit reference was made to the Appellant’s alternative narrative, but it was rejected.
182. Independent of the certified evidence of RBO 35 and the documentary presumptions, there was ample evidence to support the conclusion that Thomas Murphy was a “chargeable person”. The respondent points to the evidence of Messrs. Garvey and Flanagan as to Thomas Murphy’s involvement in the cattle trade, the evidence that the bank account in the name Thomas Murphy was used in respect of the purchase and sale of cattle in the name of Thomas Murphy and that the said bank account was used to finance the pension policy for the appellant by way of direct debit which the appellant had personally incepted. The status of “chargeable person” is based on the receipt of/entitlement to income, rather than hands-on activity in a particular trade. There is no contradiction or confusion in both Patrick and Thomas Murphy being chargeable persons; the evidence indicated a number of persons being involved in the extended Murphy family’s cattle trade. Indeed, the respondent points to other members of the extended Murphy family making tax returns in relation to cattle trading.
183. Due consideration was given to the appellant’s alternative case but it was found to be wanting in the eyes of the trial court; where the defence had an evidential burden to bear it had not succeeded in raising a reasonable doubt in that regard.
184. The respondent submits the trial court applied the legal principles as to s.16 applications correctly. The learned trial judges were satisfied that Mr. Flanagan understood the requirement to tell the truth and that his statement pointed to Thomas Murphy’s involvement in the cattle trade. The respondent emphasises that Mr. Flanagan had been offered the opportunity to change some or all of his statement by members of an Garda Síochana and he refused.
185. There is no statutory requirement to corroborate certificate evidence of the kind provided by RBO35. The references to corroboration in the judgment were merely the Special Criminal Court pointing out that not only was it satisfied beyond a reasonable doubt on foot of the certificates, but it was setting out the evidence in addition to the certificates which it found to be persuasive as to its verdict. In the DPP’s view, it was not, as the appellant suggests, guilt by certificate.
Reasons
186. The Director submits that it was not necessary for the trial court to deal explicitly with every element of evidence and argument which arose during a trial which lasted many weeks. The mere fact that a given judgment is shorter than others is not grounds for a challenge. In Oates, the late Hardiman J. made reference to R (Wheeler) v Assistant Commissioner of the Metropolitan Police [2008] EWH C439 (Admin)where it had been held;
“his reasons need not be elaborate or long and certainly should not be analysed as if it was a judgement of a judge of the administrative Court, but it should appear from them that he was conscious of the substantial issues raised by the disciplined person, and explain why or on what basis he has concluded that the review should uphold the decision of the panel”. [at para.52).
187. Hardiman J. relied on the decision of the Court of Justice of the European Union in European Union v Bamba (Case C-417/11) 49 where it was stated;
“the purpose of the obligation to state the reasons in which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, secondly, to enable that judicature to review the legality of the act”. (at para. 53)
188. The respondent submits that, as per Van De Hurk v Netherlands [1994] 18 EHRR 481, the obligation under Article 6(1) of the ECHR cannot compel a court to provide a detailed answer to every argument which might be advanced by a litigant [at para.61]. This position was reiterated by the ECtHR in Ples v Romania [2016] ECHR 37213/06. Parties should expect specific replies to only those submissions which are decisive to the outcome [at para. 25].
189. The respondent submits that Thomas Murphy’s rights and the obligations of the Special Criminal Court have been vindicated through a judgment which expressly outlines the decisive elements of the case i.e. whether the appellant had received income or was entitled to receive income from the trade being conducted during the relevant periods so as to render him a chargeable person and had failed to make a return either knowingly/wilfully or without reasonable excuse as regards the particular periods in question.
190. The Special Criminal Court expressly addressed the defence which had been put forward in order to raise a reasonable doubt, namely that Patrick Murphy was the chargeable person. The trial court held that Patrick Murphy was a chargeable person, but the monies in the 610 bank account were entitled to be enjoyed by Thomas Murphy making him equally chargeable. The learned trial judges rejected the notion of this being a zero-sum game.
191. The respondent also points to the verdict’s setting out the matters upon which it relied to come to its decision, including the s.16 statements of Messrs. Garvey and Flanagan, which the learned trial judges felt reflected the true version of events. The court is free to have regard to some or all of a s.16 statement in the same way it would any other evidence. In this regard, the Special Criminal Court noted it considered the weight to be given to the statements in light of contradictory viva voce evidence and the totality of evidence available. Accordingly, the respondent submits that the trial court did not engage in prejudicial selective reading of the statements, but rather set out those matters which were significant to its ultimate decision. It is also noted that the appellant did not contest evidence given concerning Mr. Garvey’s meeting with Thomas Murphy on the issue of rent due in respect of farming operations.
192. The respondent submits that the Special Criminal Court did have regard to the testimony of the handwriting expert to the extent that blank cheques bearing attributed to Thomas Murphy remained unchallenged. This conclusion was based on the totality of evidence availability to it, including the cross-examination of the Chartered Accountant where the question of alleged forgery arose. The trial court found, in light of the Chartered Accountant’s evidence that the MGO Book disclosed all transactions in the Murphy herds from 1996 to 2004 and that they related to particular herd owners including the Appellant. Furthermore, diary entries reflected entries by Patrick Murphy of monies received to the credit of Thomas Murphy the appellant.
193. The Special Criminal Court was satisfied, in light of the evidence of Messrs. Garvey, Rafferty, and Flanagan, that Thomas Murphy was involved in farming activities and had applied for the 24X herd number. Moreover, it pointed to the sections of that evidence which most clearly illustrated the point.
194. The respondent submitted that the trial court set out sufficient reasoning for its verdict of guilty. It may be that another Court may have set out its reasoning at greater length, but as is, the verdict does set out sufficient reasoning to allow the appellant to understand why he was convicted and to enable him to review or appeal that decision.
195. Bearing in mind some matters that were not seriously in dispute, the respondent submits that the Trial Court’s verdict should be all the more comprehensible to the appellant, since:
(i) There was a bank account in the name of the appellant;
(ii) The evidence of the relevant banking official was that the financial institution considered the appellant to be the person entitled to enjoy the monies in the account;
(iii) This was true whether or not other parties lodged to the account;
(iv) There was unchallenged evidence that the appellant had actually enjoyed some of the money in the account in the form of servicing a pension investment;
(v) There was unchallenged evidence of money being paid into the account from transactions in respect of the particular herd number 24X; and
(vi) It would not appear to be in dispute that that herd number was in the name of the appellant.
Discussion
196. There is no basis for contending that the trial court did not give reasons for its verdict. In earlier sections of this judgment, the specific findings made by the Special Criminal Court are set out and the arguments of the parties in regard thereto. This court is satisfied that the evidence listed by the Special Criminal Court in the judgment was sufficient to establish the guilt of the accused in respect of the charges in the indictment. The prosecution case was strong, cogent and consistent. It began with the application in the name of the accused for a herd number. There was other evidence in the various forms that have been set out and which are summarised in the Director’s submissions. In regard to the admission as evidence of the statements of Messrs. Garvey and Flanagan, this court has found that there was evidence before the trial court as to compliance with each of the statutory requirements.
197. The defence case was based on the proposition that documents in the name of the accused man had actually been created by others, particularly his brother, Patrick Murphy. Those other persons forged Mr Thomas Murphy’s signature on documents and also filled in forms that carried his signature. “Forgery was afoot.” This case was based on the evidence of the defence handwriting expert Mr. Cosslett which is discussed above in its own section. The defence submissions contain a serious misunderstanding of the effect of this witness’s evidence. It will be recalled that Mr. Cosslett described a number of the documents of the selection presented to him as having signatures which in his opinion, on the balance of probabilities, were those of Mr. Thomas Murphy. He accorded these signatures category C, which was the lowest of his three positive conclusions and represented what he characterised as a balance of probabilities conclusion. He was careful to say that such an opinion did not of course rule out the possibility that somebody else had written the signature. Five documents as described above related to routine farming matters and the sixth is the application form for the herd number. The defence submission in respect of these documents is that Mr. Cosslett’s opinion mandates a finding of reasonable doubt in respect of each of the documents. That is mistaken, however.
198. The handwriting evidence in respect of these documents actually tends to confirm the prosecution evidence and the presumptions. It is a matter for the court to decide whether the case has been proven beyond reasonable doubt. It must consider all the relevant evidence in coming to this conclusion. That includes Mr. Cosslett’s opinion but it does not mean that because he has expressed an opinion, that view overtakes the other evidence and supplants it and displaces it. His evidence is expressed in varying degrees of certainty based on the information before him, his capacity to affect a proper comparison including the quality of the samples and the available equipment, among other considerations. But Mr. Cosslett is not deciding the case and neither is his view in any way binding. The position in respect of these documents was correctly understood by counsel for the prosecution when cross-examining Mr. Cosslett, which is that this evidence supports the prosecution case rather than undermining it. This is more a question of logic than of law. The fact that somebody can go a certain distance along the road of proof, but stop short of a degree of certainty as required for a conviction in a criminal trial, does not mean that the witness is establishing innocence in some way or establishing the failure of the prosecution. It is tending more towards confirming the contents of the certificate rather than the opposite.
199. Reference should be made to the discussion of the handwriting expert’s evidence in the earlier part of this judgment. There were serious deficiencies as pointed out. Among them is the fact that Mr. Cosslett did not make any enquiries by way of background information as to documents that were presented to him as questioned but which had Mr. Thomas Murphy’s signatures witnessed by a solicitor. It is also surprising that he was not given instructions or information about that matter. However, apart from any deficiencies in this evidence, taking it at its height it does not appear to go further than the Special Criminal Court held. That court noted the evidence but did not consider that it in any way undermined the case that Mr. Thomas Murphy was a chargeable person for the purposes of the Taxes Acts.
200. Despite the many references to forgery or cognate words in the appellant’s submissions - there are nearly 100 such references - it is difficult to understand how that case could be made without any evidence as to fraudulent intention. It is also obvious that filling in a form which another person later signs is not forgery. Neither is it forgery even to sign something on another person’s behalf with his or her consent. The trial court accepted that he found documents under Mr. Thomas Murphy’s signature which he had not signed. That was sufficient to raise a reasonable doubt about those particular documents but it did not operate as a blanket disqualification of the statutory presumptions from every other document.
201. The defence in regard to the documentary evidence was an elaborate hypothesis that was advanced as a possible explanation which the prosecution would be unable to disprove to the standard beyond reasonable doubt. The trial court rejected that proposition and this court holds that it was correct in doing so. The case put forward was insufficient to raise a reasonable doubt.
202. The fundamental point as held by the trial court was that the evidence satisfied it beyond reasonable doubt that Mr. Thomas Murphy was a chargeable person during the relevant years and the defence case was unable to raise a reasonable doubt in that regard.
203. This Court does not accept as correct the appellant’s requirement as submitted that the trial court was obliged to engage in an individual, document by document, decision-making process and to record in its judgment what it found in respect of each. The trial court must of course consider the case carefully and in detail but this submission is wholly unreasonable and would be quite impracticable and unnecessary in a case such as this.
204. In regard to the reasons contained in the judgment, there is no doubt but that the trial court could have given a fuller discussion, in particular with reference to the defence submissions. However, the question is whether the judgment falls so far short of what was required as to make the trial unsatisfactory or the verdict unsafe. The first point is that the Special Criminal Court did set out in clear and simple and brief terms the reasons why it found the accused guilty. The discussion that appears earlier in this judgment takes the reasons in turn and analyses them in light of the submissions. Therefore, while the trial court could undoubtedly have engaged in a more elaborate discussion, the accused could be in no doubt as to the reasons that led the court to its conclusions. This court hearing the appeal has not had difficulty in regard to the reasoning in the judgment.
205. This Court accepts the submissions of the Director as to the adequacy of the reasons contained in the judgment of the Special Criminal Court. The judgment reflects the fundamental simplicity of the issue before the court in regard to the counts in the indictment, the strength of the prosecution case and the essentially hypothetical nature of the defence. While it is no doubt the case that other judges and courts would have expiated on the defence case in more elaborate detail, regard must be had to the nature of the issues that presented themselves to the trial court. There is not a general obligation that can be invoked in every case. The length of the judgment and the matters covered therein depend on the case to be decided. That must be said to begin with. Secondly, there are differences in the approaches that courts and judges adopt in expressing their conclusions. Brevity and clarity are cited as desirable qualities in judicial writing. There is much criticism of prolix judgments that have long quotations from the evidence, from legal authorities and from statutory provisions. It might be argued that the trial court ought to have engaged more fully with the arguments when explaining its reasons for the verdict. The particular point perhaps is that the court did not engage in a detailed analysis of the handwriting evidence on which the defence based so much of its case. However, as this court has pointed out that evidence fell far short of undermining the prosecution case. It is also true that the Special Criminal Court did indeed refer to the handwriting evidence in terms that make clear the conclusion it reached. The court did fulfil its function of declaring why it found the accused guilty and it can indeed be inferred from the judgment why the defence evidence and submissions did not create a reasonable doubt. In the particular circumstances of this case, the court finds that the nature of the judgment of the trial court does not furnish or support a ground of appeal.
206. This Court is also of the view that if deficiencies of the judgment of the Special Criminal Court could have furnished a ground of appeal it would be appropriate to consider exercising the jurisdiction under section 3 to disallow the appeal on the ground that no miscarriage of justice was involved and there was no basis for setting aside the verdict.
Other Grounds of Appeal
207. By way of final comment, the Court has endeavoured in this judgment to deal with the 48 grounds of appeal in sequence following the judgment of the Special Criminal Court and as far as possible in a thematic and comprehensive manner. It will be apparent from the foregoing treatment of the issues arising in the appeal that the court has also rejected other grounds that may not have been specifically identified and discussed. These include, for example, grounds relating to complaints that the Special Criminal Court erred in failing to direct a ‘not guilty’ verdict at the close of the prosecution case, that the trial court failed to give the benefit of the doubt to the accused when dealing with circumstantial evidence and that it did not appreciate the distinction between Thomas Murphy being a chargeable person rather than the chargeable person when assessing the appellant’s alternative narrative. The Court’s analysis makes clear why those grounds were not found to be tenable.
208. The court accordingly dismisses the appeal against conviction.
