A 52-year-old man convicted of conspiring to possess a firearm, ammunition and explosives should have his conviction set aside, the Court of Appeal has heard.
In May 2019, Thomas Bates with an address at Abbey Street in Cahir, Co Tipperary, was convicted of conspiring with another person or persons of possessing a firearm, ammunition and explosives, on a date between October 24, 2017 and November 10, 2017.
Judge Thomas Teehan sitting at Clonmel Circuit Court sentenced Bates to seven years imprisonment with the final year suspended.
The court heard that Bates, who is originally from Liverpool but whose father is Irish, was not the "prime mover" in the conspiracy which involved an attempt to buy the items from the United States via the Darknet, but was an important part.
Detective Superintendent Michael Gibbons told Bates' sentence hearing that an FBI agent who was carrying out surveillance on the Darknet encountered a communication in September 2017 from somebody in Ireland who wanted to engage in the purchase of illicit objects, namely firearms, explosives and ammunition.
The FBI contacted the gardaí who decided to pursue an investigation. A decision was made to prepare a number of packages for delivery to the address specified by the online purchaser, which was at The Green Door, Abbey Street, Cahir, Co Tipperary.
A "purchase" was confirmed online, with $800 paid in Bitcoin for the items. The three packages were set up by the garda drugs unit and contained two inert hand grenades, a decommissioned Glock pistol and 30 dummy rounds of ammunition.
The court heard that there was no suggestion that Bates was the person who made the order. Arrangements were put in place online to have the packages delivered and they were sent on November 10, 2017 to the address in Cahir, and accepted at that address by Bates.
The appellant told the delivery person that the packages were for his son, Tim Bates, who was in hospital. This transpired to be false as no such person existed.
The packages were left inside the door of the house and surveillance continued at the address for the day. Evidence was given at trial that Bates and another man who also stood trial but was acquitted on all charges were seen "running from the premises". They were intercepted by the surveillance team and arrested. The property on Abbey Street was searched and a number of items turned up, including cardboard packaging.
Opening an appeal against conviction on Thursday, July 2, 2020, the man's barrister Kathleen Leader SC said the trial judge erred in law in acceding to an application in allowing "Agent Peter", who was an employee of the FBI, give evidence without revealing his name to the accused and his legal representatives.
Ms Leader submitted that there exists no power either at common law or statute so as to enable a witness to give evidence at criminal trials in the Circuit Court on an anonymous basis. Counsel said there is a statutory requirement for the name and address of a witness to be given to an accused and this was not done here.
The barrister also submitted that the trial judge erred in law in admitting a document into evidence which purported to record an exchange between Agent Peter and another individual. Ms Leader argued that the document insofar as it recorded a conversation between Agent Peter and the person who was not a witness contained hearsay evidence, which did not come within the exceptions of the hearsay rule.
Furthermore, Ms Leader said the essential ingredient of a conspiracy offence is agreement with another and the appellant was indicted that he conspired with another person or persons. She submitted that a co-conspirator was not identified on the indictment, which allowed the prosecution not to specify their case during the course of the trial and also to be very vague in their closing speech. In addition, counsel argued that what happened after the controlled delivery was not evidence capable of proving a conspiracy and the trial judge had made a mistake by not directing that her client be acquitted.
Finally, Ms Leader submitted that the trial judge failed to direct the jury adequately on the evidential value of the exchange between Agent Peter and another, the nature of the crime of conspiracy and the requirement to prove an agreement and thirdly in allowing the benefit of the doubt to the accused. She said they were obvious things that should have been explained to the jury and were not.
In reply, counsel for the Director of Public Prosecutions (DPP), Garnet Orange SC, said that nothing in respect of the anonymity of any witnesses had in any way affected the fairness of the running of the trial and the accused man was not put at any disadvantage.
In relation to the prosecution admitting a document into evidence which purported to record an exchange between Agent Peter and another individual, Mr Orange said it was only used to support the verbal testimony which took place between Agent Peter and the other individual and did not go much beyond that. "It was relevant and the prosecution was not seeking to rely on anything contained in it," he submitted.
Mr Orange submitted that he could not say when the agreement was precisely formed but Bates' actions upon receiving the package were proof of this agreement.
President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice Patrick McCarthy and Ms Justice Aileen Donnelly, put the case into the afternoon of July 24, when Ms Leader will reply to Mr Orange's submissions.
The remote appeal hearing saw lawyers, the appellant and three judges of the Court of Appeal joined by video-link.