A self-titled ‘Arthur Daley’ used-car salesman had his conviction for IRA membership quashed on Tuesday after it emerged his defence team were not told the chief prosecution witness at trial was a convicted criminal.
In an unusual move, the Director of Public Prosecutions (DPP) did not oppose the application, while Court of Appeal President Mr Justice George Birmingham said that the circumstances of the case should now be investigated.
The court will decide later if Robert O’Leary (43), who has been in jail since October 2020, should face a retrial.
At his trial, the DPP claimed a Skoda Octavia car used by the New IRA when they placed a bomb under a PSNI officer's Jeep at Shandon Park Golf Club, Belfast in June 2019 had been supplied by Mr O’Leary.
Mr O’Leary (43), of Clancy Road, Finglas, Dublin, had pleaded not guilty to a single count of membership of an unlawful organisation, contrary to Section 21 of the Offences against the State Act 1939, as amended by section 48 of the Criminal Justice (Terrorist Offences) Act 2005.
However, the three-judge Special Criminal Court convicted him of being a member of a group styling itself as the Irish Republican Army, otherwise Óglaigh na hÉireann, at a location within the State on August 20th, 2019.
He was sentenced to three years’ imprisonment in October 2020 by Mr Justice Tony Hunt.
Mr O’Leary later launched an appeal against the conviction on the grounds that a newly discovered fact about the chief prosecution witness meant it was unsafe.
At the Court of Appeal on Tuesday, Court President Mr Justice George Birmingham, sitting with Mr Justice Patrick McCarthy and Ms Justice Aileen Donnelly, was told the DPP was not opposing the application to have the conviction quashed.
Paul Greene SC, for the DPP, told the court that it “remains in the mix” whether Mr O’Leary should be retried on the original charge.
Mr Greene also said the DPP had no objection to any application from the respondent to be released on bail.
In a submission to the court, lawyers for Mr O’Leary claimed the State’s chief witness against their client, Nik Kasapi (40), was a convicted drug dealer.
Kasapi, according to the defence, had pleaded guilty to two counts of being in possession of a quantity of drugs for sale or supply at Dublin Circuit Criminal Court in May 2016 and was sentenced to two years and six months’ imprisonment.
Kasapi, aka Armin Kasapovic, was also named in the legal papers as the owner of a company called Millennium Motors and it was said that he was wanted in Montenegro for drug offences involving the sale or supply of €2 million worth of cannabis.
It was further claimed that this information was withheld from the defence, despite repeated requests for disclosure.
“If these facts had been known in advance of trial, they would have impacted on the witness’s credibility,” the defence submission stated.
Claiming that a “very different approach to the cross-examination would have been taken” if Kasapi’s criminal record had been disclosed to them before the trial, Mr O’Leary’s lawyers said this opportunity had been denied them “due to the failure of the prosecution to comply with its disclosure obligations”.
Before releasing Mr O’Leary on bail, Mr Justice Birmingham said the circumstances which led to the DPP deciding not to oppose an application to have a conviction overturned were “unusual” and should now be investigated.
“A situation where a witness has a previous conviction and this conviction is not disclosed is an unsatisfactory one,” he said.