A Louth man who spent 14 months in prison for IRA membership has had his conviction declared a miscarriage of justice after the Special Criminal court agreed there was a "grave defect" in the administration of justice brought about "by agents of the State".
The non-jury court on Monday found that Garda Assistant Commissioner Michael O'Sullivan, who gave evidence of his belief that Michael Connolly (47) was an IRA member, had made "an unqualified assertion" during the trial that none of the material he viewed that formed the basis of his belief was in the Book of Evidence against the accused man.
The Special Criminal Court described this assertion as "seriously incomplete and misleading".
Evidence of the belief of a garda not below the rank of Chief Superintendent that an accused is a member of the IRA is routinely used in membership trials and privilege can be claimed on the material underlying the belief. In order to convict, the court needs to be satisfied that the belief evidence is supported by some other evidence that implicates the accused.
Asst Comm O'Sullivan gave evidence suggesting that he had formed his belief relying on the “entirety” of materials contained in an intelligence file without any knowledge of what was contained in the Book of Evidence. In cross-examination in the original trial, he told Mr Connolly's defence counsel that he had not seen the Book of Evidence but was satisfied from the material that he viewed that none of it was in the Book of Evidence.
In a subsequent re-trial of Mr Connolly, the three judges of the Special Criminal Court examined the intelligence file and ordered the disclosure of two relevant extracts. One of these summarised the movements or activities of the applicant on December 16, 2014: the date of the alleged offence.
The court found there was no evidence that Asst Comm O'Sullivan made his assertion in the knowledge that it was misleading and there could not be any such evidence, as he had no knowledge of what was in the Book of Evidence.
However, the three judge panel said they were satisfied that it was "careless" of the garda officer to make the relevant assertion without "being aware at least of the general nature of the alleged independent supporting evidence disclosed" in the Book of Evidence and because he knew or ought to have known December 16 was a date of relevance to matters contained in the Book of Evidence.
Mr Connolly was previously granted leave to seek compensation from the State and last month his lawyers argued that he had suffered a "classic case of miscarriage of justice".
In a retrial in 2019, Mr Connolly was acquitted of IRA membership after the non-jury Special Criminal Court found it could not rely on the belief evidence given by Gda Asst Comm O'Sullivan as being independent from the investigation.
The court found beyond a reasonable doubt that Asst Comm O'Sullivan honestly and genuinely believed the accused was an IRA member and that the prosecution's evidence tended to implicate the accused in the transportation of two explosive devices. However, the evidence caused the non-jury court to have a reasonable doubt as to whether the garda officer had impermissibly double counted the relevant evidence in arriving at his belief.
In June 2018, the Court of Appeal had set aside the applicant's conviction and ordered a retrial, having found that the trial court had failed to properly exercise its discretion in refusing a defence request to examine the intelligence file upon which the belief evidence of the member of An Garda Siochana was based. This was in circumstances where the Court of Appeal accepted that the belief evidence given by the senior garda officer had contributed "in a significant manner" to the guilty verdict and conviction of the applicant.
Mr Connolly (47) of Grange Drive in Dundalk, County Louth, had pleaded not guilty to membership of an unlawful organisation, styling itself Oglaigh na hEireann, otherwise the Irish Republican Army, otherwise the IRA on December 16, 2014.
It was the prosecution’s case that Mr Connolly was observed by Gardaí driving in convoy with another man, who was then found with two improvised explosive devices (IEDs).
In a judgement returned electronically on Monday, presiding judge Mr Justice Paul Coffey said the requirement that belief evidence be supported by independent evidence that is "wholly extrinsic" to the matters relied upon by the relevant officer in forming their belief had become known as "the rule against double counting". It is an important safeguard which the Special Criminal Court must strictly uphold to counterbalance the use of belief evidence, he pointed out.
The judge said the application for a miscarriage of justice by the applicant was grounded on the newly discovered fact that it was reasonably possible that the senior garda officer's belief was based in whole or in part on the very same facts as were being offered by the prosecution for its independent support.
Mr Justice Coffey said the non-jury court was satisfied beyond reasonable doubt as to the existence of a body of circumstantial evidence which tended to implicate the applicant in the transportation of two improvised explosive devices for a criminal purpose on December 16, 2014. "This is not a case where the newly discovered fact establishes that the applicant was innocent of the crime alleged," he said.
However, Mr Justice Coffey said the Special Criminal Court was satisfied that senior counsel for the applicant, Hugh Hartnett SC, had made out that there had been a "grave defect" in the administration of justice, brought about "by agents of the State". It is clear that the garda officer made "an unqualified assertion" in the trial that none of the material that he "viewed" or that he had "seen" was in the Book of Evidence, said the judge.
Mr Justice Coffey said the non-jury court found that the assertion made by the garda officer was "seriously incomplete and misleading" in that it conveyed to the original court of trial that his belief was based only on matters that were "wholly extrinsic" to those contained in the Book of Evidence.
The three judges were satisfied that it was "careless" of the garda officer to make the relevant assertion without "being aware at least of the general nature of the alleged independent supporting evidence disclosed" in the Book of Evidence, which the prosecution proposed to rely on, he said.
In summary, Mr Justice Coffey said the way in which the senior garda officer gave his evidence "greatly contributed" to the issue of double counting not becoming a live issue in the original trial as it ought to have been. "We are further of the view that if the issue of double counting had been considered in the light of all the evidence that is now available, it is probable that the original court would have considered itself compelled, as did this Court, to acquit the applicant," he concluded.
Mr Justice Coffey, sitting with Judge Sinead Ni Chulachain and Judge James Faughnan, said they were satisfied that there was a "grave defect" in the administration of justice in the trial that resulted in the conviction and sentencing of Mr Connolly and approved the certificate for the miscarriage of justice application.
LAST MONTH'S HEARING:
At last month's hearing on March 22, Hugh Hartnett SC with Philip Rahn BL and instructed by David Thompson Solicitors argued that the applicant’s conviction on June 1 2017 (the first trial) was a miscarriage of justice and it was based in the main part on the belief evidence of Asst Comm O’Sullivan and evidence of the applicant’s movements on December 16, 2014.
It had transpired that this was in breach of the rule against “double counting”, said the barrister, and he submitted that on the balance of probabilities, the belief evidence of the Asst Comm was formed amongst other things by reference to an extract on the intelligence file summarising the movements and activities of Mr Connolly on December 16, 2014.
This newly-discovered fact, which Mr Hartnett submitted showed the conviction to have been a miscarriage of justice, came to light during the re-trial by reason of the court’s ruling on May 22, 2019 that the relevant extracts from the intelligence files be disclosed to the defence. Furthermore, the applicant had spent 14 months and 22 days in custody on foot of this matter, he remarked.
The lawyer said that before and during the first trial the applicant had sought disclosure of the intelligence file upon which the Asst Comm had based his belief but the investigating and prosecuting authorities had declined this request for disclosure and claimed privilege. The trial court in the first trial had upheld the privilege claimed and declined to review the intelligence file, he outlined. "If ever there was a glaring miscarriage it is that,' he added.
Mr Hartnett said the re-trial of the applicant commenced in April 2019, where the Asst Comm again gave belief evidence and claimed privilege over the intelligence file which formed the basis of his belief. The Asst Comm maintained that in forming his belief he did not have regard to any matters contained in the book of evidence, such as Mr Connolly's conduct on December 16, 2014.
The barrister said the three-judge panel in the re-trial examined the intelligence file and ordered the disclosure of two relevant extracts. One of these summarised the relevant movements or activities of the Applicant on December 16, 2014. “This was in direct contradiction of the evidence of the Asst Comm in the previous trial that nothing from the book of evidence was contained in the file he examined. This extract had been ticked in the fashion described by the Asst Comm,” he said.
Mr Hartnett said Mr Connolly was acquitted in the retrial and the court was satisfied in reaching its verdict “that there must be at least a reasonable possibility that the Assistant Commissioner considered and relied upon the relevant matters when forming his belief”.
The court could not accept that the circumstantial evidence relating to December 16 2014 provided independent evidence to support that belief evidence of the Asst Comm, which therefore effectively stood alone and an acquittal followed, he added.
Regarding the application, Mr Hartnett said the fact which was newly discovered by the applicant at the re-trial was that the Asst Comm did indeed read and consider the contents of the extract of the intelligence file relating to Mr Connolly’s conduct on December 16, 2014, when forming his belief and that the claim of privilege in respect of the material was unfounded.
The lawyer submitted that this fact was newly discovered in the second trial and that it breached the rule against “double counting” and tainted the belief evidence which led to the wrongful conviction of the applicant in the first trial, which he said amounted to a miscarriage of justice.
He said this matter was of "great and grave significance" and the first trial was "marred" by a shortcoming in the administration of justice. "If ever there was unconstitutionality it was here," he said, adding that the three-judge panel must now look back at the first trial to see if there had been a miscarriage of justice as there was a deliberate decision not to impose safeguards.
There was an unfounded claim of privilege in the first trial and as a result matters discovered in the second trial went "undiscovered", he said. "This is a classic case of a miscarriage of justice and we don't need to prove anything else such as innocence, we just need to prove that there was a flaw or failure in the administration of justice," concluded Mr Hartnett.
In reply, Fiona Murphy SC on behalf of the Director of Public Prosecutions said the court must be satisfied that on foot of the newly discovered fact that there had been a miscarriage of justice. "It is certainly the case that courts have made it clear that simply because a conviction was quashed by the Court of Appeal or someone was acquitted on a retrial it doesn't automatically follow that a certificate of a miscarriage of justice should be issued," she argued.
Counsel said she accepted that the newly discovered fact were the documents disclosed by the court but disputed that the newly discovered fact was one that would show there was a miscarriage of justice in the case.
Ms Murphy submitted that there was no finding either beyond reasonable doubt or even upon the balance of probabilities that double counting was engaged in or that the Asst Comm had acted in any way inappropriately. She said the court needed to be satisfied on the balance of probabilities that there had been double counting and the applicant in this case had not reached the test.
The barrister submitted that to seek a miscarriage of justice certificate was ill conceived and the relief sought ought to be refused.