Court allows appeal on newly discovered evidence proving joint enterprise miscarriage of justice.

THE COURT OF CRIMINAL APPEAL

[2014] IECCA 31

1CPA/2000

Hardiman J.

McGovern J.

White J.

APPLICATION PURSUANT TO SECTION 9 OF THE CRIMINAL PROCEDURE ACT, 1993

Between:

MARTIN CONMEY

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of the Court delivered by Mr. Justice Hardiman on the 29th day of July, 2014.

1. On the 22nd November, 2010, this Court (Hardiman J., Budd J., and de Valera J.) quashed the conviction of the applicant for the

manslaughter of the late Una Lynskey. This conviction took place on the 14th July, 1972, some thirty-eight years previously. The

applicant now applies, pursuant to s.9(1)(a)(ii) to this Court to certify “that a newly discovered fact shows there has been a

miscarriage of justice”. This is the issue presently before the Court.

2. The earlier judgment of 22nd November, 2010 is a comprehensive one. It is important to emphasise that this present judgment is

not comprehensible without a reading of the earlier judgment. In particular the very long delay in the case requires to be read in light

of the history of the unexplained disappearance of papers in Garda custody after the applicant’s solicitors sought them in 1997. This is

detailed at pp 41 – 45 of the 2010 judgment.

3. From that earlier judgment, and in particular from page 6 to page 8 thereof, it appears that:

“The nub of the case against the applicant (Mr. Conmey), and against those arrested at the same time, depended on his

being placed in a vehicle on the Porterstown Lane during an extremely tight and short time frame. This time frame was

calculated by adding to the time at which the deceased was known to have alighted from her bus, the fifteen minutes or

so it would have taken to walk from that point to her home, as explained above”.

4. The evidence established that the deceased lady got off the bus at about 6.55pm.

5. At the trial, and on the hearing of the s.2 application, the papers produced by the investigation showed that there were two

alleged sightings of possibly relevant vehicles on the Porterstown Road during the fifteen minutes after 6.55pm on the relevant day,

the 12th October, 1971. One was a large dark car seen by a number of witnesses. But the description of the persons in that vehicle is

plainly not consistent with them being the applicant and his alleged companions. The original investigation did not appear to reach any

conclusion as to who the persons in that car were or what their relevance, if any, to the investigation might be.

6. The only other relevant vehicle was alleged to be, or at least to resemble, or sound like, that of Mr. Dick Donnelly, an associate of

the present applicant. Given that the applicant could not be linked to the first dark vehicle it became central to the case against him

to place him in some vehicle on the Porterstown Road at the relevant time. Due to the absence of any third vehicle it was in practise

vital to the prosecution to place the applicant in the Donnelly car on the Porterstown Road in the fifteen minutes after 6.55pm. But a

major difficulty arose in doing this. The two witnesses, Mr. Madden and Mr. Reilly, who were relied upon at the trial to place the

applicant there had, when they were first approached by the gardaí, failed to place either the Donnelly car or the applicant on the

Porterstown Lane at the relevant time.

7. This is the principal newly discovered fact. One of these witnesses told the gardaí that no car had passed during the relevant

period when he was sitting in another car outside the other witness’s house.

8. The central feature of this case is that these witnesses later departed from their first statements and gave quite different

statements, and subsequently quite different evidence, summarised below. The earlier statements, which tended to favour the

defence, were not produced at the trial and were concealed from the applicant. The prosecution sought to keep alive the possibility

that they might have been “informally disclosed” to the defence, but the Court of Criminal Appeal held against this proposition for the

reasons given in the judgment. Now, the prosecution admit the non-production of the statements but say they were not important, or

not important enough, to have had any realistic effect on the trial.

Changing evidence.

9. The first of these prosecution witnesses was Martin Madden. Martin Madden said in evidence that he had come home from work at

about 6.30pm and shortly afterwards had driven to the house of Séan Reilly on Porterstown Lane. He said that Séan Reilly had come

out and got into his car. He said that while Reilly was in his car a car had passed them going towards the Navan Road. Martin

Madden thought it was a yellow car. He did not know whose car it was. He had not heard the sound of the car before. Speaking of

Dick Donnelly he said “I knew his car was a coppered coloured Zypher or Zodiac; I didn’t know the sound; I didn’t know who was

driving this car”. Mr. Madden was referring to the car that passed Reilly’s house coming from the Fairyhouse Road end of Porterstown

Lane. He said “I didn’t see who was in the car; I couldn’t see”. (Emphasis added) This latter point is an important one, as will be

seen.

10. Mr. Madden having given evidence to the effect set out above, the prosecution made an application for liberty to cross-examine

him, on the grounds that he was a hostile witness. This was on the basis that he had given different evidence in a sworn statement

in the District Court. On being cross-examined with reference to that statement he agreed that he had then said that he thought

that the car passing Reilly’s house was Dick Donnelly’s car, by the sound of it. He had said he was familiar with that sound. He had

further agreed that he said that he thought it was Dick Donnelly who was driving. He said that there were two others in the car - two

in the front and a third person in the back.

11. Having been confronted with his previous statement he was then further examined and he said to the jury that he thought that

the car was Dick Donnelly’s car by the sound of it but that he could not be positive. He said it made the noise of any other big car -

it made the noise of Donnelly’s car. He said that later he had passed Donnelly’s house and his car was there and Martin Kerrigan was

in the driver’s seat but nobody else was in it.

Significance of evidence.

12. The learned trial judge told the jury, at p.12 of the transcript of day 13 of the trial that this evidence of Mr. Madden:

“is a crucial piece of evidence. I do not suggest that you should act upon it or not act upon it: it is a matter entirely for

you. The witness had admitted to two versions: one in which he thought it was Donnelly’s car, and the version here in

which he could not be sure. Of course, the other witness in the car, Séan Reilly, is also evasive.”

13. The learned trial judge then, commenting on the evidence just summarised and the evidence of Séan Reilly, which will be

discussed below, said:

“These two pieces of evidence are much relied on by the prosecution as proving that Richard Donnelly, Martin Conmey

and the late Martin Kerrigan were in the car that went from Barrons’ shop up Porterstown Lane; met Una Lynskey;

something happened which had fatal results; that the car turned back and came down Porterstown Lane towards the

Navan Road. If that is not proved to your satisfaction, much of the prosecution case goes. It is essential for the

prosecution case to show that Richard Donnelly’s car met Una Lynskey and took Una Lynskey into the car and that

something fatal happened.” (Emphasis added)

14. The foregoing seems to the Court clearly to establish the central importance at the trial of the evidence placing Mr. Donnelly’s car

in Porterstown Lane at a relevant time.

15. Séan Reilly, who was referred to in the evidence of Martin Madden, said that on the relevant day he came back from work, having

got a lift to a place where he had left his bicycle that morning, and cycled from there to his home in Porterstown Lane, at about

6.50pm. It was getting dark at that time. He arrived home about 6.55pm and his brother and sister came in shortly afterwards. Then

he heard a car at the gate which was Martin Madden’s. Mr. Reilly told the jury that he came out and got into Mr. Madden’s car which

was parked at the gate. When sitting at the car he said that he saw a car coming from the Fairyhouse direction and said “I thought

it might be Dick Donnelly’s car but I am not going to swear it; I thought there was someone in the passenger seat; I cannot say who

it was or whether it was a man or a woman. The car was about fifteen feet from me.” He said it had its full headlights on and that he

could barely see the top of the driver’s head. He also told the jury:

“I thought the noise of the car might be Dick Donnelly’s, and then again it might not. If it was Dick Donnelly’s car, I

presume he was driving and, if so, I thought he might be driving home Martin Kerrigan.”

16. The learned trial judge told the jury that the evidence summarised above:

“is rather vague evidence. Standing on its own, he would be very slow to act on it. Unless you found that it was borne

out by other evidence which satisfied you, you should not come to the conclusion that Dick Donnelly’s car was being

driven by Dick Donnelly from the Fairyhouse end of the road.”

17. The third witness whose evidence it is necessary to set out at this stage is John Shevlin. He lived in a cul-de-sac near the

Lynskeys house. On the relevant day he come home about 5.20pm for his tea and went out at about 6.45pm. After a little time he

heard a car going up towards Fairyhouse and from the sound of it he thought it was Dick Donnelly’s car. He said he would know the

sound made by his neighbours’ cars. He was then at or near a milk stand which was, at that time, on the Porterstown Lane.

18. In his second statement, the witness, who was only thirteen years old, reversed the direction of travel of the car, thus making his

account consistent with the second accounts of Madden and Reilly.

19. The foregoing summarises some evidence vital to this Application. The elapsing of a long period of time makes it more difficult for

this Court, or any reviewing body, to assess evidence and in particular to assess conflicting oral accounts of events now long past. It

would, of course, be still more difficult now to have a fair and satisfactory trial when such conflicts are present. However, even in the

case of proposed trials, it has now been long established in a series of cases involving much delayed allegations of sexual misconduct,

that, in some instances at least, a fair trial can be had despite huge periods of time elapsed. These difficulties may be more or less

acute depending on the extent to which a trial or other litigation depends on documented facts or expert testimony.

The newly discovered facts.

20. In the present case, counsel for Mr. Conmey submitted that there were ten items of newly discovered facts which he relied upon

to quash the conviction. These were:

The undisclosed statements of Séan Reilly, Martin Madden, and John Shevlin;

Documentation disclosed by the State that supported the contention that Mr. Conmey was a suspect in a criminal

investigation during a forty five hour period which he spent in Trim Garda Station.

Admissions made in evidence by Michael Fanning.

Admissions made in evidence by John Courtney.

The evidence of Séan Reilly.

The evidence of Mary Gaughan.

The evidence of Eileen Conmey.

The evidence of Vera Ennis.

The evidence of Gerry Monaghan.

The evidence of Christopher Ennis.

21. It will be observed that the first of these categories of evidence is entirely documentary. Messrs. Reilly, Madden and Shevlin had

made initial statements to the Gardaí which tended strongly to favour the defence by undermining the case made by the prosecution,

and which were not disclosed to the defence. Notwithstanding this, the non-disclosure continued even after the witnesses in

question gave evidence at variance with the contents of the undisclosed statements. Furthermore, these statements were

undisclosed even when one of the witnesses was cross-examined by the prosecution in relation to another prior statement of his, for

the purpose of rendering him a hostile witness. Even then, the original statements of these witnesses to the gardaí were withheld.

22. These statements, the successive, altered, statements and the evidence generally are discussed fully in the judgment of the

Court of Criminal Appeal of November 2010.

The Law.

23. In argument on the hearing of this application reliance was placed on DPP v. Pringle (No. 2) [1997] 2 IR 225, a case relied upon by

both sides.

24. In that case, this Court gave “examples of circumstances which may constitute a miscarriage of justice”. The Court was careful

to state that they were examples only, and in no way intended to limit the discretion of a court.

25. While four examples were given, two only of these seemed to be of direct relevance to the present case. These are the two

subsequently approved by this Court in DPP v. Nora Wall, in which the judgment of the Court was delivered by Kearns J. The relevant

two were the last of the examples given in Pringle:

“(c) Where there has been such a departure from the rules which permeate all judicial procedures as to make that which

happened altogether irreconcilable with judicial or constitutional procedure.

Where there has been a grave defect in the administration of justice, brought about by members of the State”.

26. Expanding on this, the Court in Nora Wall (Kearns J., Herbert J., and Butler J.) summarised the position as follows:

“The exercise in which the Court is engaged under the Act of 1993 is to determine whether a newly discovered fact

shows that a miscarriage of justice occurred and this is not confined to the question of actual innocence but extends to

the administration in a given case of the justice system itself”.

27. Over and above the authorities cited, the prosecution in the present case relied on an extract from the judgment of the Court in

DPP v. Frank Shortt (reference). The passage relied upon is:

“The mere existence of a newly discovered fact in relation to a trial is, both in law and logic, incapable of itself leading to

a successful result. The newly discovered fact may be irrelevant or of only slight relevance, it may leave untouched a

compelling body of incriminating evidence. It is not sufficient for an applicant simply to plead that there is a newly

discovered fact. He must go on to plead that it shows that there has been a miscarriage of justice”.

The specific issue in this case.

28. It seems obvious in the present case that there has been “a grave defect in the administration of justice, brought about by

members of the State”.

29. It must be borne in mind that the Court on an application such as the present is “not confined to the question of actual

innocence” to quote another phrase from the decision of this Court in Wall. It is very important to bear that in mind because it is

manifestly impossible forty-two years after the conviction and forty-three years after the offence, to make any definite statement

about the guilt or innocence of the accused or of anyone else. The time for that to be determined was at the original trial when all

relevant witnesses were alive and available, except for one of the original co-accused, who had been feloniously killed in the interval

between the killing of Ms. Lynskey and the trial of Mr. Conmey, by connections of the deceased. Accordingly, the question which this

Court must address, and the only question which it can address, was as to whether the original conviction of the applicant was a

miscarriage of justice. On the basis of the passage cited by the prosecution from Shortt, and the finding that the first trial was

marred by a grave defect in the administration of justice in the form of the non-disclosure of the original statements mentioned

above, the question has been much narrowed. It appears to reduce itself to the issue:

“Does the newly discovered fact ‘leave untouched a compelling body of incriminating evidence?’.”

Imponderables.

30. When one attempts to review a conviction following a trial which took place more than forty years ago, in light of newly

discovered facts, there are of necessity a number of imponderable issues. That is, a great number of hypothetical questions are

raised.

31. In the judgment of 22nd November, 2010, there is set out in some detail the history of how the original statements of the

relevant three witnesses came to light. It is obvious from this that, for the reasons there set out, these documents were not

available to Mr. Conmey until approximately the year 2010. For that reason alone, it is impossible to be certain what the effect of the

documents would have been had they been available at the trial. For example, much might have depended on the time of the trial at

which they became available. Had they been available to the accused (as Mr. Conmey then was) in order to cross-examine the

witnesses when they gave evidence against him, their effect might have been dramatic indeed. It is apparent that one of the

witnesses actually gave evidence in accordance with his original statement and was then cross-examined on this by the prosecution,

relying upon his second statement and the deposition he gave based on it. Had it been revealed that there was a still earlier

statement, entirely consistent with his evidence, the prosecution case, or at least part of it, might have collapsed there and then.

Had the statements become available at that juncture or later, a major part of their effect might have depended on what explanation

the gardaí put forward for not disclosing them earlier. At the hearing of this appeal, no explanation whatever was put forward for the

non-disclosure despite the fact that, happily, the Chief Investigation Officer, Chief Superintendent Courtney, was available and more

than capable of giving evidence, which in fact he did. It must be clear that if no explanation for the suppression of the Statements

had been put forward at the trial, that fact would have gone significantly to undermine credibility of other items of garda evidence

against Mr. Conmey.

Importance of the witnesses’ evidence.

32. The importance of the evidence of the witnesses who put Mr. Conmey in Mr. Donnelly’s car at the Porterstown Road in the

relevant fifteen minute period on the 12th October, 1971, seems beyond doubt. In charging the jury, the learned trial judge (the late

Mr. Justice Henchy) said this:

“These two pieces of evidence are much relied on by the prosecution as proving that Richard Donnelly, Martin Conmey

and the late Martin Kerrigan were in the car that went from Barrons’ shop up Porterstown Lane; met Una Lynskey;

something happened which had fatal results; that the car turned back and came down Porterstown Lane towards the

Navan Road. If that is not proved to your satisfaction, much of the prosecution case goes. It is essential for the

prosecution case to show that Richard Donnelly’s car met Una Lynskey and took Una Lynskey into the car and that

something fatal happened.”

33. It therefore seems beyond argument at this stage that if the prosecution evidence from the three relevant witnesses were

disbelieved, much of the prosecution case would have fallen away.

34. The importance of the quotation from the learned trial judge is that his conclusion is not speculation indulged in forty years later;

it was the opinion of the learned trial judge at the time of the trial.

35. It would be very difficult to conclude that, if the original statements had been available to the defence at the trial, that the jury

could have been satisfied beyond reasonable doubt with the evidence placing Mr. Conmey on the Porterstown Road at the relevant

time. Indeed, the probability must be that they would not have been so satisfied. The issue would have depended to perhaps a

considerable degree on what explanation the gardaí put forward for withholding the original statements. It is difficult to think of any

explanation that would have been remotely satisfactory at the trial, given that none could be advanced thirty-eight years later.

Summary of conclusions to date.

36. It therefore appears safe to conclude:

The evidence of the three witnesses whose original statements were withheld by the State from the defence was

important at the trial. Indeed, the learned trial judge used the word “crucial” in this connection. According to the passage

from the learned trial judge, cited at p.12 of the judgment of November, 2010, in speaking of the evidence of Mr. Madden

and Mr. Reilly:

“These two pieces of evidence are much relied upon by the prosecution…”.

“They were relied upon “as proving that Richard Donnelly, Martin Conmey, and the late Martin Kerrigan were in the car

that went from Barron’s Shop up Porterstown Lane”.

“If that is not proved to your satisfaction much of the prosecution case goes…”.

“It is essential for the prosecution to show that Richard Donnelly’s car met Una Lynskey and took Una Lynskey into the

car and that something fatal happened”.

The responsibility for the withholding of the statement was wholly that of the gardaí or those concerned with the

prosecution in 1971. It is, of course, quite impossible now to be sure whether or not the gardaí disclosed the statements

to the Attorney General, the State Solicitor or prosecuting counsel. But the statements were known to the State, though

perhaps not to every individual concerned with the prosecution.

The original statements were radically inconsistent with later statements of the same witnesses. No explanation of

these inconsistencies was ever given.

The nature of the inconsistencies is set out in the judgment of the 22nd November, 2010 so that it is unnecessary to set

them out again here.

It is very striking indeed that the second statements were made within a short time, only a few days, of the first

statements. Thus, the first statement of Seán Reilly was taken on the 20th September, 1971. Only four days later, on the

24th September he gave a statement which was radically inconsistent with the first. It is unlikely that his memory would

have changed so dramatically in so short a period without some external intervention.

Significant use was made of the second and subsequent statements for the purpose of deposition and at the trial.

The survivor of the three relevant witnesses, Seán Reilly, now gives an account of having been severely and unlawfully

pressurised by the gardaí to make the altered statements. This account includes allegations of physical assault. No other

explanation for the changed statements was put forward by the State.

Miscarriage of Justice.

37. The topic of miscarriage of justice was discussed by this Court in the case of DPP v. Feichín Hannon (Court of Criminal Appeal,

unreported, 27 April, 2009). The concept of miscarriage emphatically does not involve positive proof that the applicant is factually

innocent of the offence. In the great majority of cases, especially cases which are more than forty years old, that would be

impossible to establish.

38. As it happens, in the case just referred to it was possible affirmatively to establish the innocence of the applicant. This was

because the complainant, who had made an allegation of a sexual kind against him, years afterwards withdrew it, having had a

religious experience. She explained that she had made the allegation out of malice at a time when there was an ongoing row between

her family and the applicant’s family, related to land in the west of Ireland. But that case was most unusual.

39. It appears to me that, in the present case, it would be quite impossible to establish factually at this stage that the defendant

was either guilty or not guilty in fact of the offence of which he was convicted. Nor would it be possible to establish who it was that

directed the suppression of the first statements of the three witnesses mentioned above and why, precisely, that person took this

gravely wrong step.

40. All that it seems to us to be possible to establish at this point was whether or not the applicant’s conviction for the offence in

1972, on the evidence on which he was in fact convicted, and bearing in mind the suppressed evidence, was a miscarriage of justice.

On the authorities (since there is no dispute that the missing evidence should not have been concealed) this question comes down to

whether the establishment of the suppression of the first statements of the three witnesses leaves untouched a large body of

incriminating evidence. It does not appear to us that it does this.

41. The Court in Hannon, following the custom of the Court of Criminal Appeal ever since the miscarriage of justice jurisdiction has

been called into being in 1993, avoided offering a comprehensive definition of “miscarriage of justice”. The wisdom of this reticence is

vindicated by the facts of the Hannon case itself. Uniquely in our experience, that case came before the Court on a s.9 application in

circumstances where the defendant asserted and the prosecution agreed that he was innocent of the offence on which he was

convicted, not merely presumptively, or because of a technical error in the trial, but actually innocent as a factual proposition. But,

even in that unique situation, the prosecution resisted the conclusion that innocence in fact of an offence of which the applicant was

convicted entitled him to have the conviction regarded as a miscarriage of justice. The prosecution contended that, before a

miscarriage could be found, there had to be some substantial element of culpability on the part of those responsible for the conduct

of the prosecution. The prosecution agreed, of course, that it was truly unfortunate that an absolutely innocent person had been

convicted of a serious offence. But they said that this was the doing of the woman who (as a ten year old girl) had made a false

allegation against the applicant, and not at all of the prosecution services. They said that the DPP had little choice but to prosecute

when there was a coherent complaint not obviously afflicted by any inconsistency.

42. Accordingly, there is no universally applicable definition of “miscarriage of justice” available to be applied in the present case. But

the previously decided cases do offer illustrations of “miscarriage”. Thus, in Pringle, cited above and later approved in Wall, also cited

above, one of the definitions of miscarriage is that it arises “where there has been a grave defect in the administration of justice,

brought about by members of the State”.

43. Further in Wall, it is held that the phrase “miscarriage of justice” is “not confined to the question of actual innocence, but extends

to the administration of justice in a given case”.

44. In Hannon also cited above, the dictionary meaning of the phrase “miscarriage” was discussed, and it was noted, firstly, that the

phrase (except in a medical context) is to be regarded as rare or indeed archaic. On the authority of Smeton v. Secretary of State

for Health [Queen’s Bench Division, The Times, May 2, 2002] it was held that the phrase was formerly used “to convey a variety of

meanings including misdemeanour or misdeed, mismanagement or failure of an enterprise, or a blunder, as well as its use in the medical

or obstetrical sense. The phrase “miscarriage of justice” is defined in the Oxford English Dictionary as “a failure of the judicial system

to attain the ends of justice”.

45. We conclude that, in that sense, a miscarriage of justice has been established in the present case. Indeed, that much seems to

follow from the finding that “there has been a grave defect in the administration of justice, brought about by members of the State”

to quote the passage already cited from the decision in Pringle.

46. The only escape from that logical process would arise if, to quote the formulation from Shortt, the evidence which was withheld

“leaves untouched a compelling body of incriminating evidence”. On this aspect the onus must be on the prosecution to point to this

body of incriminating evidence and to reasons why the suppressed evidence might be thought to “leave it untouched”. This, too, is a

very difficult exercise because it necessarily involves a measure of speculation. We have already speculated above as to what the

effect of the suppressed evidence would or might have been if available at different stages of the trial.

47. There are also difficulties in assessing whether there is a body of incriminating evidence “left untouched” by the new material. The

bulk of the evidence on which the State might rely in this regard was produced during the applicant’s forty-six hour visit, to use a

neutral term, to Trim Garda Station. Though it is admitted that he was at one stage locked in a cell during this period, and that he

was never given an opportunity to sleep, it is nonetheless maintained that his presence there was entirely voluntary. It was also

admitted that he was invited to go to the Garda Station by reason of the second statements of Messrs. Madden and Reilly.

48. As already mentioned, neither at the original trial, nor on the original appeal, nor on the hearing of the s.2 application or the

present application, was any evidence put forward as to the reason for the suppression of the first statements of Messrs. Madden,

Reilly and, less importantly, Shevlin. The only evidence bearing on that important question was the evidence of the sole survivor of

these three witnesses, Mr. Reilly, who says that the second statement was obtained by pressure from the gardaí including physical

assault. This is the only explanation before the Court, from either side, for the changed evidence.

49. That state of affairs invites speculation but does little to resolve it. If the gardaí knew that the second statements were procured

by them by unlawful means, what effect would that have had on the admissibility of whatever developed during the applicant’s long

sojourn in Trim? If the statements had been produced, what effect would that have had on the garda evidence, and in particular on

its credibility.

Joint enterprise.

50. In the course of the hearing of the present application pursuant to s.9, Mr. Brendan Grehan S.C. for the Director, in the course of

discussion with Mr. Justice White, stated that:

“Conmey could only be convicted as part of a joint enterprise”.

51. Later this was slightly rephrased as follows:

“Conmey could only be convicted on the basis of a finding of his involvement in a joint enterprise”.

52. He said this on the basis that:

“The three men, Donnelly, Conmey and the late Kerrigan, were in the car on Porterstown Lane, that they caused the

deceased to get into the car, and stopped her leaving the car”.

53. He said that, after that “Someone tried something”.

54. He then submitted that each of the three men in the car is responsible for that “something” if he “did not do something to

alleviate her position”.

55. Mr. Grehan put the case in this way frankly conceding that there was no authority for the view that each of the men in the car

was guilty “if he did not do something to alleviate her position” but said that it followed from first principles. He said that the effect of

these principles could be expressed as follows:

“Conmey was one of the three people present in the car. He was not a mere onlooker. This is either proved directly or

arises by necessary inference. Whatever happened, happened in the presence of all three and all three are

responsible”. (Emphasis added)

56. It appears to us that the only evidence relied upon by the prosecution which is wholly “untouched” by the newly discovered facts

is the evidence of the applicant’s former flatmate, a Mr. Mangan, who stated that the applicant had told him “They killed her with the

car”.

57. This statement is unfortunately afflicted by many ambiguities and imponderables. Who, precisely, is “they”? Specifically does it

include Mr. Conmey or does it include merely those whom Mr. Conmey was, allegedly, speaking about? The second difficulty is that

the proposition that Ms. Lynskey was killed by or with a car is simply not correct: it was excluded by the medical evidence. The

medical evidence was, unfortunately, due to the circumstances, and in particular the lapse of time before the body was found,

inconclusive as to the actual mechanism of death. But it was certainly not due to being struck by a car, whether accidentally or

otherwise.

Conclusion.

58. In the result, it seems to be of vital importance that the prosecution have conceded that Mr. Conmey could only be convicted of

the offence on the basis of a finding that he was part of a joint enterprise. As Mr. O’Higgins S.C., for the applicant relevantly

enquired:

“What was the joint enterprise, or common design?”.

59. This question, in our view, received no answer.

60. In the result, there is no “untouched” body of incriminating evidence capable of establishing a joint enterprise involving Mr.

Conmey. But the establishment of such joint enterprise is, admittedly, essential to the establishment of any case against Mr. Conmey.

On this narrow basis we find that the conviction of Mr. Conmey on the 14th July, 1972 after a trial during which the three original

statements of Messrs. Madden, Reilly and Shevlin were suppressed by a person unknown, but connected with the prosecution,

amounted to a miscarriage of justice.