Brian Kavanagh and Alison O'Riordan
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 today 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 16th, 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.
Mr Connolly (47) of Grange Drive in Dundalk, Co 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 16th, 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 judgment returned electronically today, 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 16th, 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.