Court quashes conviction under s.2 Criminal Procedure Act 1993 due to newly discovered contradictory witness statements.

THE COURT OF CRIMINAL APPEAL

Hardiman J. 001/2000 CCA

Budd J.

de Valera J.

APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL PROCEDURE ACT, 1993

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

and

MARTIN CONMEY

Applicant

JUDGMENT of the Court delivered by Mr. Justice Hardiman on the 22nd day of November, 2010.

This is an application pursuant to s.2 of the Criminal Procedure Act, 1993.

Section 2, sub-s. 1 of the Criminal Procedure Act, 1993 provides, inter alia:-

“A person-

( a ) who has been convicted of an offence either—

(i) on indictment, or…who, after appeal to the Court including an application for leave to appeal, and

any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and

( b ) who alleges that a new or newly-discovered fact shows that there has been a miscarriage of justice in

relation to the conviction …

may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing

the conviction…”

Section 2, sub-s.2 of the Act of 1993 provides:-

“An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence.”

Section 2, sub-s. 4 of the Act of 1993, provides:-

“The reference in sub-section 1(b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted

person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by

the convicted person or his advisers during the trial or appeal proceedings.”

Section 3, sub-s. I of the Act of 1993, provides:-

“On the hearing of an appeal against conviction of an offence the Court may:-

(a) affirm the conviction (and may do so, notwithstanding that it is of opinion that a point raised in the appeal might be

decided in favour of the appellant, if it considers that no miscarriage of justice has actually occurred), or

(b) quash the conviction and make no further order, or

(c) quash the conviction and order the applicant to be re-tried for the offence, or…”

Section 9, sub-s. 1 of the Act of 1993, provides:-

“Where a person has been convicted of an offence and either-

(a) (i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any

re-trial, and

(ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a

miscarriage of justice,

or

(b) (i) he has been pardoned as a result of a petition under section 7, and

(ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice…

the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal

personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.”

Construction of Section 2.

Section 2 of the Criminal Procedure Act, 1993, introduced an entirely novel jurisdiction. It was “the legislative reaction to the fall out

from recent well publicised cases of miscarriages of justice, including the Guilford Four and Birmingham Six cases in Britain and, in

Ireland, the Nicky Kelly case.” The learned authors of the Annual Review of Irish Law for 1993 considered that the statute, together

with another passed in the same year, “resulted in enormous changes to the Irish criminal justice system and for that reason their

significance should not be allowed to pass without comment at the outset of [the Criminal Law] chapter.”

Not long after the passage of the Act, as one would expect, the provisions of s.2 were authoritatively interpreted by this Court, in a

judgment delivered by Keane J. (as he then was) in The People (Director of Public Prosecutions) v. Joseph Meleady and Joseph

Grogan [1995] 2 IR 517. This was another case where it was alleged that an unfortunate non-disclosure of evidential material had

rendered a conviction unsafe. The Court was required to construe the Section which it did in a discerning fashion. Keane J. said, at

pp.540-541:

“… the Court takes it as clear at the outset that its jurisdiction in a case such as the present is properly

invoked where a convicted person who has previously appealed unsuccessfully against his conviction alleges

that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the

conviction and applies to the Court for an order quashing the conviction.

Thereafter, the application is to be treated ‘for all purposes’ as an appeal to the Court against the conviction.

In the result, the Court is empowered to affirm or quash the conviction or to order a retrial, as though it were

dealing with an appeal by the well established machinery already in existence. There is nothing in the wording

of s.2 or s.3 to suggest that the applicant under s.2, in addition to alleging that a newly-discovered fact

shows that there has been a miscarriage of justice, must satisfy the Court that such a miscarriage has

actually occurred before it proceeds to exercise the powers to quash the conviction or to quash and order a

retrial.

Nor is there any reason for such a requirement: the mischief which this legislation was designed to remedy

was not simply the nondisclosure to the Court of trial of facts which, if available, would have conclusively

demonstrated the innocence of the accused. It was also to provide redress, hitherto not available, in cases

where facts came to light for the first time after the appeal to this Court which showed that there might have

been a miscarriage of justice. The power to order a retrial in cases under s.2 would be inappropriate if relief

under that section was only intended to be available to those who could satisfy this Court that miscarriage of

justice had actually occurred. It seems clear to this Court that it was also intended to afford relief to those

who could point to materials which, if they had been available at the trial, might - not necessarily would -

have raised a reasonable doubt in the mind of the jury.”

This passage, whose citation at some length was absolutely necessary to explain the nature of the jurisdiction now being exercised,

appears to me to establish, so far as is relevant to this case:

(1) That the applicant need not establish that a miscarriage of justice has actually occurred before proceeding to quash the

conviction,

(2) That the Act operates to provide redress in cases where facts come to light for the first time after an appeal, which show that

there may have been a miscarriage of justice,

(3) That s.2 provides redress to an applicant who can point to material which, if it had been available at the trial might - not

necessarily would - have raised a reasonable doubt in the minds of the jury.

___________________________________________________________

The Applicant in this application, Martin Conmey, was, together with his co-accused Dick Donnelly convicted, on the 14th July, 1972

of the manslaughter of Una Lynskey. This occurred after a trial before Mr. Justice Henchy and a jury. Some days later they were both

sentenced to three years imprisonment. The learned trial judge granted a certificate for leave to appeal. On appeal the conviction of

Dick Donnelly was set aside but that of the applicant was affirmed. A third person suspected by the gardaí of having been involved in

the disappearance and killing of Una Lynskey, a Mr. Martin Kerrigan, was kidnapped and killed during the course of the garda

investigation, by relatives of the deceased lady.

The evidence against the Applicant was entirely circumstantial. There was no direct evidence and no forensic evidence linking the

applicant to the crime. This circumstantial evidence must now be summarised.

Factual Context.

Ms. Lynskey disappeared on the evening of the 12th October, 1971. She was a young unmarried lady and lived with her parents on

Porterstown Lane, Ratoath, County Meath. She worked with the Land Commission in Dublin and typically travelled by bus to and from

work. On the night of her disappearance there was uncontradicted evidence that she had as usual travelled home by bus and had

alighted from the bus at the Fairyhouse Road end of Porterstown Lane.

The geography of the area around Porterstown Lane, as it was in October 1971, was important at the trial and on the appeal and is

important on this application. Porterstown Lane was a narrow road leading off from the Navan Road to Fairyhouse Road. It was 1½

miles long from one end to the other. In October, 1971, if one went from the Fairyhouse Road end of Porterstown Lane to Ms.

Lynskey’s family home, it would be a distance of 770 yards. The total distance she would have had to walk on alighting from the bus

at the bus stop would be 1,446 yards, or about 4/5ths of a mile. There was evidence that this would have taken her about fifteen

minutes to walk. Accordingly, the 15 minutes after she got off her bus is the vital period.

There was evidence, which was substantially unchallenged, that she had alighted from the bus at a stop near the Fairyhouse Road

end of Porterstown Lane at 6.55pm. The driver and the conductor of the bus said that they had got to Ratoath at about 7pm and to

Ms. Lynskey’s stop about five minutes earlier. Another witness who had travelled on the bus, Ms. Mary Glynn said that she had got off

at the first stop on Fairyhouse Road at about 6.50pm or 6.55pm.

Though these details are mundane, they perform the vital function of indicating a short time frame during which something must have

happened to Ms. Lynskey and, accordingly, during which anyone involved in her disappearance and death must have been able to

encounter her. The prosecution case as it was presented at the trial was that the applicant, Martin Kerrigan and Dick Donnelly were

on Porterstown Lane, in Dick Donnelly’s car, travelling towards the Navan Road, during that short period of time. Evidence was led to

place the three in Porterstown Lane. The controversy in this case relates to this evidence. The principal new or newly discovered fact

relied on in this application also relates to this evidence. Its significance must now be explained.

The nub of the case against the applicant, 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.

On the basis of the papers produced by the investigation, it appears that there were two alleged sightings of possibly relevant

vehicles on the Porterstown Road during that short period of time. 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. No

conclusion appears to have been reached by the investigators as to who the persons described were or what their relevance to the

investigation might be.

The only other relevant vehicle was said to be, or at least to resemble, or sound like, that of Dick Donnelly. Given that the applicant

could not be linked to the first dark vehicle it became central to the case against him and his alleged companions to place them in

some vehicle on the Porterstown Road at the relevant time. Due to the absence of any third vehicle at the relevant place and time, it

was in practice vital to the prosecution to place the applicant in the Donnelly car on the Porterstown Road during that short time

frame.

But a major difficulty arose in doing this. The two witnesses later relied upon at the trial to place the applicant there had, when they

were first approached by the gardaí, failed to place either the car or the applicant on the Porterstown Lane at the relevant time. That

is the main newly discovered fact. Very strikingly, one of these witnesses told the gardaí that no car had passed during the vital

period, when he was sitting in a car outside another witness’s house. These witnesses later departed from their first statements and

gave at the trial the quite different evidence summarised below. The earlier statements, which tended to favour the defence, were

not produced at the trial and the applicant says they were concealed from him. The prosecution say that the relevant documents

may not have been withheld from the applicant at all, but may have been given to his counsel. In any event, they say, the earlier

statements are not significant, or not significant enough to have had any realistic effect on the trial. Furthermore, if indeed they were

not produced that may have been due to the culpable failure of the defence to ask for them. And lastly, the prosecution say, there

has been gross delay in raising the question of these statements.

Changing evidence.

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.

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.

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.

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.”

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)

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.

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.”

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.”

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.

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 present Application: the new or newly discovered facts: background.

Section 2 of the Act of 1993 has definitions of “new facts” and of “newly discovered facts”.

At section 2, subsection (3) it is provided that:

“… the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal

proceedings, the significance of which was appreciated by him, where he alleges that there is a reasonable

explanation for his failure to adduce evidence of that fact.”

Section 2, subsection (4) provides:

“… the reference to a newly discovered fact is to a fact discovered by or coming to the notice of the

convicted person after the relevant appeal proceedings have been finally determined or a fact the significance

of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.”

In the present case, counsel for Mr. Conmey submit that there are newly discovered facts which identify as follows:

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

(b) Documentation disclosed by the State that supports the contention that Mr. Conmey was a suspect in a criminal investigation

during a 45 hour period which he spent in Trim Garda Station;

(c) Admissions made in evidence by Garda Michael Fanning;

(d) Admissions made in evidence by retired Chief Superintendent John Courtney;

(e) The evidence of Séan Reilly;

(f) The evidence of Mary Gaughan;

(g) The evidence of Eileen Conmey;

(h) The evidence of Vera Ennis;

(i) The evidence of Gerry Monaghan;

(j) The evidence of Christopher Ennis.

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

statements to the gardaí which tended to favour the defence and which, counsel for the applicant says, were not disclosed to his

client or his advisers. He says that this non-disclosure continued even though the witnesses in question gave evidence at variance

with the contents of the undisclosed statements. He further maintains that these statements were undisclosed even when one of the

witnesses, as summarised above, was cross-examined in relation to another prior statement of his, for the purpose of rendering him a

hostile witness. Even then, he alleges, the original Garda statements, supporting the evidence first given by Mr. Madden at the trial,

were withheld.

The evidence given by these witnesses, as summarised by the learned trial judge to the jury, has itself been summarised earlier in this

judgment. It is now necessary to look to the content of the statements alleged to have been undisclosed. The applicant’s case,

substantively, is that statements by the three named witnesses were undisclosed to him or his lawyers at the trial notwithstanding

that they contain accounts which are materially inconsistent with the version of events put forward by the prosecution at the trial. In

particular it is said that the initial statements by each of the witnesses state that they did not sight Dick Donnelly’s car on

Porterstown Lane during the vital period of fifteen minutes being 7pm and 7.15pm on the relevant day. They are all therefore

inconsistent with the State’s case that the applicant, Mr. Conmey, was in the back seat of Mr. Donnelly’s car at the time it was

alleged to have passed Mr. Reilly’s house.

The State’s case in relation to these witness statements will be discussed below. But it is important at this stage to note the Director

of Public Prosecution’s concession (at p.3 of his “Further Submissions” filed on the 12th July, 2010) that:

“The issue of alleged non-disclosure of the statements of Séan Reilly, Martin Madden and John Shevlin is

capable, as a matter of law, of constituting either a new or a newly discovered fact within the context of a

s.2 application.”

This is not a concession which was made in relation to all of the categories of alleged newly discovered facts set out above. That

fact in itself, together with the largely documentary content of this first category, makes it convenient to deal with the submission

based on these statements first, before proceeding, if necessary, to the other alleged new or newly discovered material and the

submissions based on them.

Newly-discovered material: detail.

The Court has been provided, by the Solicitors for the applicant, with a “Booklet of Tabulated Core Documents”. This contains,

amongst much other material, two statements of Séan Reilly, taken on the 20th October and the 24th October, 1971 respectively;

four statements of Martin Madden taken on the 20th October, 25th October, the 8th November and the 19th November, 1971

respectively and four statements of John Shevlin, dated the 17th October, the 25th October, the 18th November and the 20th

December, 1971 respectively.

All these documents, in the form in which they were made available to the Court (in which they are sometimes difficult to read), are

presented as an appendix to this judgment. It is important to note the variations between these statements and also the variations

between the statements and the sworn evidence of the witnesses who made them which was placed before the jury. This evidence

has been summarised earlier, largely relying on the Trial Judge’s charge. The statement, in the form they were presented to the Court,

will be advanced in the office of the Court of Criminal Appeal.

Since the statements are exhibited it is sufficient to make two points only about them to illustrate the subject matter, and the

fundamental nature, of certain of the variations.

Martin Madden made his first statements to Garda Fanning and a Sergeant Caesar on the 20th October, 1971. This is a long

statement extending to four typewritten pages and must have taken quite a considerable time for the gardaí to write down in

manuscript. It was the usual practice to take statements in this way and later to send them for typing. In it he described, at p.3,

pulling into Reilly’s yard when:

“I then blew the horn of my car and Séan Reilly came out, who was followed by his brother Michael. I was

then asked by Michael to drive him to the County Club, Dunshaughlin as he had to go to work. I stayed talking

to Séan and Michael Reilly outside the house until 7.05pm. During the five minutes I was parked outside

Reilly’s house no car or any other person passed up or down the road.” (Emphasis added)

In total contradiction of the foregoing, in his statement of the 25th October, 1971 made to Detective Sergeant (later Chief

Superintendent) John Courtney and Detective Inspector Hubert Reynolds, both of the Technical Bureau, Martin Madden said:

“Just as Séan had got into the car, a car passed going towards the Navan Road. As soon as this car passed I

said to Séan Reilly that ‘that must be Dick’, meaning Dick Donnelly. I said this because I know Dick Donnelly’s

car very well. It’s a silvery coloured Zephyr. I think [three indistinct letters] are the letters. I also know it by

the sound that is a rattle in it. This would be around 7.05pm or maybe 7.10pm. I saw three people in the car

the three were in the front of it. I think Martin Kerrigan and Martin Conmey were in the car with Dick

Donnelly.”

These statements could hardly be in more dramatic contrast, on the vital issue as to whether a car passed and who was in it.

Furthermore, the first statements makes no contribution whatever to any case against Mr. Conmey whereas the second statement

tends to place him at the scene.

The mysteries and imponderables created by Mr. Madden’s two statements quoted above are compounded by those of Séan Reilly.

This man told the gardaí (Garda John Farrell and Sergeant Caeser) on the 20th October, 1971, in a two page typewritten statement

that he had indeed sat into Martin Madden’s grey Anglia de Luxe but that it was “parked facing into our yard. It had its rear to the

road”. But in his second statement, given to Garda Guildea and Garda Jennings on the 24th October, 1971, he said:

“Martin Madden was seated behind the driving wheel, and the way his car was parked he had a good view of

Porterstown Lane”.

Mr. Madden’s statement that “I couldn’t see”, quoted above, will be recalled.

On the third page of his statement he claims that he himself had “a good look” at the car which passed. As to who was in it,

however, he identified Mr. Donnelly as the driver and added “I am almost sure Martin Kerrigan was sitting beside him but I am not sure

if there was a third person with Donnelly and Kerrigan”.

It is perfectly clear that this statement relies for the credibility, indeed the feasibility, of the events it describes on Madden’s car

being faced towards the road, which is omitted from the description given four days earlier, though it is plainly vital as to what those

in the parked car could see. Furthermore, the first statement said that the car “had its rear to the road”.

In the case of John Shevlin, a witness who was only thirteen years old at the time and who unfortunately has since died at a young

age, the contrast is also significant. In his statement to Sergeant McGee on the 25th October, he described, as previously mentioned,

being for a period during the relevant time frame at a milk stand which was then in place on the Porterstown Road, just at a point

where the road from his house met Porterstown Lane. He said:

“I don’t remember seeing any car passing up or down Porterstown Lane. They could have passed but I do not

remember.”

However, in a further statement dated the 18th November, 1971, he told Garda Fanning that:

“I then decided to come home and about ten yards over Lynskeys’ lane I heard a car coming from Fairyhouse towards the

Navan Road. I looked behind me and I just saw the back end of the car. It appeared grey in colour and the back end of it

reminded of Sergeant McGee’s car.” (Emphasis added)

In a further statement on the 20th December, 1971 he said:

“While I was with the calves [that is, in his own yard] I heard a car coming from the Navan Road and going

towards the Fairyhouse Road at the end of the lane. I heard this car slaking its speed and from the sound of

this car I knew it was Dick Donnelly’s car. Dick Donnelly’s car is a Zephyr and is golden coloured. The reason I

knew the sound of it is because it passes up and down the lane every day, and it mostly calls to Conmeys’

house. I would know the sound of most of the local cars that pass up and down the lane.”

(Emphasis added)

There is here no gross contradiction such as is found in the statements of the other two witnesses but certainly there is a major

development in the context of the successive statements which would call for explanation, if one were making a very important

decision on the basis of the accuracy and veracity of what the witness said. It will also be seen that the car this witness eventually

recalled was going in the opposite direction to that eventually recalled by Mr. Reilly, and that John Shevlin’s own second and third

statements have the car going in different directions.

The fact that these inconsistencies or difficulties arise from the statements does not, of course, mean that any person is to blame.

There may (or there may not) be a perfectly innocent explanation. But in fact the topic was never explored at all for the simple

reason that the initial statements, the applicant says, were never disclosed, and he and his lawyers had no way of knowing about

them.

Were the statements undisclosed?

The State, however, say that it is not certain that the initial statements were undisclosed. They say that they may have been

disclosed. Implicit in this argument, of course, there appears to be a necessary concession that the statements were such that, by

the standards of the time, they called for disclosure. Equally, say the State, if they were not disclosed it may have been because of

a culpable failure on the defence side to call for their disclosure.

Both Mr. Harold Whelehan S.C., later Attorney General, who had been junior Counsel for Mr. Conmey at the time of his trial, and the

solicitor who had instructed him, Ms. Maire Teehan, later County Registrar of Meath, gave evidence on the hearing of this application.

They had absolutely no recollection of the initial statements of these three witnesses being furnished to them and Mr. Whelehan said:

“… While I have no recollection, I don’t believe those statements were furnished to us. If they had been

furnished to us, on my reading of the papers, I would have expected to find that the existence of any

additional statements by these witnesses, which were not entirely consistent with one another, would have

been used to challenge their credibility and their reliability. And furthermore I am firmly of the view, and I

know that hindsight is a wonderful thing, but in this case I have no doubt that it is correct, that if we had

been able to establish that these witnesses in the case, who are not implicated, had been brought a number

of times to the Garda station and further and additional statements required from them, that we would have

been able to explore how they came to be brought back several times to the Garda Station; the nature of the

interrogation or questioning to which they were subjected; and to establish a possible consistency between

the allegations made by Mr. Conmey relating to his treatment in custody, and indeed Mr. Donnelly, concerning

his treatment while in custody, and the treatment of the witnesses who are not in any way implicated in the

investigation except for the purpose of putting together a sequence of events.”

Equally, Ms. Teehan said:

“I have no recollection of seeing them. It is as simple as that. I did not see - I cannot recollect ever seeing them. No and

I can’t understand but that if we were made aware of them and we had seen them that we would have had to take them

into account and had to do something with them.”

A possible reason for the change.

Mr. Séan Reilly is the only survivor of the three witnesses whose evidence changed during the garda investigation as outlined above.

He gave evidence on the hearing of this application and said that he was pressurised and intimidated by the gardaí into making a

statement implicating the accused persons in the disappearance of Ms. Lynskey. He said that when he was re-interviewed by the

gardaí on either the 24th or 25th October, 1971, one of these gardaí, whom he thought was Garda Guildea, was extremely concerned

that he, Mr. Reilly, should give them information placing Donnelly’s car on Porterstown Lane during the vital fifteen minutes. He ended

up making a statement to this effect. In fact, he said, he did not think it was Dick Donnelly’s car that was present, but the

suggestion that it was, was strongly made to him by the gardaí. On the 28th April, 2010 the following passage occurred in his cross-

examination by the prosecution:

“Q. So, just so I’m clear about this, are you saying you didn’t know whose car it was?

A. I didn’t know whose car it was. I couldn’t know whose car it was because the way Martin Madden’s car was facing, my back was

to the road.

Q. (by the Court)

Is that the account given in the first statement? That the car was facing in?

A. (counsel)

Yes

A. (Witness)

The car was always facing in, yes.”

Counsel then went to the affidavits sworn by Mr. Reilly for the purpose of this application and put various sections of it to him so that

he could confirm them. The full text appears on the transcript for Day 2 of this application.

Mr. Reilly said that, in Trim Garda Station, he was put into a room with some gardaí. He gave them an account, at their request,

which was the same as the account given in his first statement. He said “They were not satisfied with this, I was punched on the

outside of the shoulder and on the cheek.” He said there were several detectives taking different interviews, at least six at different

times. He said he was punched three or four times, he also said that the table was banged and that the gardaí swore at him. He said

the worst of his interrogators was Garda Guildea of whom he said “I can tell you he was frothing out of the mouth with temper”. He

also said “One of the things I’d say was, he thought I had seen a car on the Porterstown Lane when I was coming home from work on

the bike… that never happened… they tried to tell me that I knew it was Dick Donnelly’s car that passed while I was sitting with

Martin Madden. But as I say again, there was no chance of me knowing that because I wasn’t turned out towards the road, but to

tell them fellows, they weren’t just listening to me.”

The Court is not at present concerned with the veracity of these allegations by Séan Reilly. It is sufficient to note, however, that this

explanation of why he made the second statement exists, and is of course heavily favourable to the defence, and there is no other

explanation before the Court as to how that dramatic change came about. It is something that, had it been disclosed at the trial,

would clearly have called for explanation from the prosecution.

___________________________________________________________

Moreover, it is clearly the case that, at the trial in 1972, both prosecution and defence were aware of the importance of checking the

accuracy and credibility of witness’s statements against previous accounts given by the same witnesses. The most specific, indeed

dramatic, example of this is the confrontation of a prosecution witness, by prosecuting counsel, with his own previous evidence taken

on deposition. It is also very noteworthy that this evidence was on the very same subject as that to which the undisclosed

statements relate, what exactly any of the three named witnesses had or had not seen of Dick Donnelly’s car and those in it on

Porterstown Lane on the day Ms. Lynskey disappeared. What happened at the trial was that, at the prosecution’s discretion, one

previous statement, the one favourable to the prosecution theory, was put to a witness who was not “swearing up”, but a still earlier

statement on the very same point, favourable to the defence, which was in the possession of the prosecution, was not put or ever

mentioned.

It is inconceivable that the devastating effect of the putting of the earlier deposition to the witness would not have been

counteracted by the defence, by themselves putting the contents of the still earlier signed statement of the witness to him, if the

defence had been in possession of the first statements of each of these witnesses. The combination of the evidence of Mr. Whelahan

and Ms. Teehan, and the actual conduct of the trial, especially in the particular mentioned above, allows one to be confident that the

earlier statements were not in the possession of the defence. This confidence is strengthened by the fact that on Day 2 of the trial,

Q. 726a, Mr. Whelehan, in cross-examining Martin Madden on behalf of the applicant said:

“You had made a statement to the gardaí and I take it you had said more or less what you have said in court

today?”

The witness answered affirmatively, and therefore falsely. This falsity could have been instantly exposed by a cross examiner in

possession of the first statement.

It appears to me that this question demonstrates, firstly, that the defence were concerned to correlate the account given in court

with previous accounts, secondly, that they did not have in their possession the original statement since, if they did, it would

certainly have been deployed at this point and, thirdly, that the prosecution, having heard the witness give a false or inaccurate

answer, had the opportunity and obligation to produce the original statement but (as will be seen) did not do so.

It must also be noted that there was no positive evidence by any person, and no documentary evidence suggesting, that the first

statements of the three relevant witnesses had at any time been given to the defence. But on the hearing of this application, counsel

for the Director of Public Prosecutions raised the possibility that the relevant statements might have been “informally” given to the

defence, during the trial, by being handed to defending counsel by the leading prosecuting counsel (the late Mr. John Lovatt Dolan

S.C.). In the absence of positive evidence this can only be speculation. It would be extraordinary if such a thing happened with no

note being made. It seems a speculation most unlikely to be correct. If it were correct, that would mean that documents, whose

relevance was so obvious and manifest that they were handed over during the trial by prosecuting counsel, were nonetheless ignored

by a notably proactive and dedicated defence team.

Significance of the earlier statements.

An order under s.2 will not be made merely on the basis (assuming it to be established) of a failure of proper disclosure by the

prosecution to the defence unless this failure is a matter of significance in enabling the defence to discharge the burden which lies on

it on this application, as set out in the case of The People (DPP) v. Meleady and Grogan, above.

On the fifth day of the trial, during cross-examination of Detective Sergeant Courtney (as he then was), he was asked about his

object in bringing Martin Conmey to Trim Garda Station where he remained, apparently without sleep, for forty-five hours. It was

central to the prosecution case to show that Martin Conmey attended voluntarily, could have left at any time, and was not a

suspect. In answer, the witness referred to the statements of Mr. Conmey and Mr. Donnelly made to the gardaí about their

movements and added:

“… then through the course of enquiries we were told that Donnelly’s car came from the Fairyhouse direction

and went towards the Navan Road.”

Asked by the judge who had told him that he answered:

“Martin Madden and Séan Reilly. They had good reason to believe that Donnelly’s car went towards the Navan

Road at about 7pm.”

The main significance of these passages is, in fact, conceded at p.7 of the “Further Submissions” of the Director of Public

Prosecutions on this application. There, it is said:

“There was substantial evidence given at the trial that statements had been made by Séan Reilly and Martin

Madden to the gardaí placing Dick Donnelly’s car in Porterstown Lane at the relevant time. It was the cause

of the applicant and his friends being further interviewed by the gardaí at Trim Garda Station on the 25th

October, 1971.”

This concession is contained in the prosecution submissions for a different purpose viz to argue that the defence were, or were likely

to have been, aware “that Reilly and Madden had made statements” and this is obviously true. But there is no evidence that they

were, or were likely to have been, aware that Reilly and Madden had first made statements which wholly contradicted these later

statements.

It is however now conceded that the later statements were the cause of Mr. Conmey and others being taken to Navan Garda Station.

This was a significant development in the case. It means that the earlier statements, if disclosed, could have been used to undermine

the later statements which were in such gross contradiction of them. In this way the legality of Mr. Conmey’s presence, or detention,

in Trim Garda Station might well have been undermined.

In the Garda Station.

This is what happened in Trim Garda Station, in the words of the judgment of the Court of Criminal Appeal in this case, in 1973:

“There is no doubt that the applicant was subjected to very intensive and persistent interrogation, the

necessity for which is not at all apparent from the evidence. It should have been possible for the gardaí, in

carrying out their investigations at that time, to have treated the applicant with respect and reasonable

consideration to which every person supposed to be innocent of any criminal offence is entitled. Nevertheless

though the treatment of the applicant may have been harsh and oppressive, the statements made by him

were held by the learned trial judge to have been… admissible”.

(Emphasis added)

An account of events allegedly given by the applicant to Detective Inspector Reynolds in Trim Garda Station was a vital part of the

evidence against him. It did not amount to a confession of any involvement in the disappearance or death of Una Lynskey but

constituted an admission to being in Donnelly’s car with Kerrigan at the relevant time and gave a very vague but exculpatory account

of what happened next. On the applicant’s account this admission was improperly obtained, and some of the alleged newly discovered

material goes to this issue. But, for the present, the Court is concerned only with the effect of the undisclosed first statements of

Messrs. Reilly, Madden and Shevlin.

In 1971, there was no relevant provision in statute law for the detention of a person for questioning. Accordingly, it was necessary

for the prosecution, in order to admit at the trial evidence of anything alleged to have been said by the applicant, to establish that he

was voluntarily present in the Garda station.

Assessment.

Based on the foregoing, the following points appear to be established:

(a) That the gardaí were at all material times in possession of original statements, presumably in handwritten form, and typed versions

of the initial account of the witnesses, Séan Reilly, Martin Madden and John Shevlin,

(b) That these original statements were radically inconsistent with later statements of the same witnesses and with the evidence

given at the trial,

(c) That neither on the hearing of this application, nor at the trial, did the State offer any explanation of the changes in the

statements of these witnesses,

(e) That significant use was made of the subsequent statements (including depositions) of these witnesses or certain of them and

that the later statements also played a significant role in the investigation, specifically in causing the applicant and the two others to

be brought to Trim Garda Station.

(f) There is evidence (quoted above) that it was the later versions of these witnesses account that led to the taking of the applicant

and his colleagues to Trim Garda Station and their retention there, admittedly without sleep, for some forty-five hours,

(g) That the survivor of the three relevant witnesses, Séan Reilly, now gives an account of having been severely and unlawfully

pressurised by the gardaí to make the altered statement. This account includes allegations of physical assaults.

Should the original statements have been disclosed?

The Court has no doubt, in the circumstances of the case, that the original statements of Messrs. Madden Reilly and Shevlin should

have been disclosed to the defence. It is difficult to see that (subject to questions of privilege) the onus of disclosure in a criminal

case is less far reaching than the onus of discovery in a civil case. This extends to material which enable a party to strengthen his

own case or to undermine the case of his adversary and material which may put him upon a line of inquiry towards either of these two

ends. (See The Compagnie Financiére et Commerciale du Pacifique v. The Peruvian Guana Company [1882] 11 Q.B.D. 55).

This test was well established at the time of the trial.

Application of the above principles to Criminal cases.

In D.P.P. v. McCarthy and Ors. [Court of Criminal Appeal, unreported, 25th July, 2007, per Kearns J.) it was said at p.28:

“There is no doubt under the modern jurisprudence of our courts that the prosecution are under a duty to

disclose to the defence any material which may be relevant to the case and which could either help the

defence or damage the prosecution and that if there is such material in the possession of the prosecution

they are under a constitutional duty to make that available to the defence.”

In so holding, the Court relied on the judgment of this Court in D.P.P. v. Special Criminal Court and Paul Ward [1999] 1 IR 60,

where the obligations of the prosecution in relation to disclosure were described in the following terms, at p.71 of the Report:

“The prosecution must disclose any document which could be of assistance to the defence in establishing a

defence, in damaging the prosecution case, or in providing a lead on evidence that goes to either of these

two things.”

___________________________________________________

There seems to be no scope for the view that the material in question here did not fall to be disclosed. The prosecution called the

relevant witnesses at the trial, so that their relevance cannot be challenged. When one of them did not “swear up” to his second

statement, he was confronted with a deposition, that is, another prior statement of his. But his earliest statement, which was

consistent with the evidence which he had first given at the trial was not disclosed. It seems perfectly clear that if one prior

statement is relevant so must the other be. From the prosecution point of view, however, to produce the first statement taken would

have involved a necessity to give some explanation as to how the witnesses’ accounts changed so fundamentally. If the witness

Séan Reilly, on being cross-examined on this question, had given the account which he gave in April 2010 on the hearing of this

application, that would clearly (if believed) have had a devastating effect on the prosecution case. It must be recalled that the

learned trial judge said that, without the evidence placing Conmey in Donnelly’s car on Porterstown Lane at the relevant time, “much

of the prosecution case goes”.

It is clear therefore that this material should have been disclosed, both on the voir dire and in the substantive trial.

The prosecution’s answer.

The prosecution, however, argue that the foregoing conclusion should not, or should not in and of itself, lead to the quashing of the

conviction at this stage. Relying on The People (DPP) v. Gannon [1997] 1 IR 40 at p. 48, they submit that the Court on an

application such as this “is required to carry out an objective evaluation of the newly discovered fact with the view to discovering in

the light of it whether the applicant’s conviction was unsafe and unsatisfactory”. (Final Submissions, at p.10). They also rely on DPP

v. McCarthy and Ors. at p. 30 for the proposition:

“… a failure of disclosure must be shown to have been important, as distinct from technical or trivial, if a

conviction is to be regarded as unsafe.”

The applicant, as I understand it, agrees that these principles apply but relies also on the following proposition from the Gannon

case, at p. 48:

“… the question of whether a newly discovered fact has rendered a conviction unsafe or unsatisfactory,

cannot be determined by having regard to the course taken by the defence at the trial. What the Court is

required to do is to carry out an objective evaluation of the newly discovered fact with a view to determining

in the light of it, whether the applicant’s conviction was unsafe and unsatisfactory. The Court cannot have

regard solely to the course taken by the defence at the trial.”

In a sense, of course, this last passage is a statement of the obvious: if material, due to concealment or otherwise, was unavailable

to the defence at the trial, it follows that it cannot have influenced the course taken by the defence at that time. Nor is it

realistically possible to reconstruct with any degree of certainty what course the defence would have taken if they had had available

to them material which was in fact unavailable. It may be that these very practical difficulties are what underlies the “might, not

would” formulation in the Meleady and Grogan decision, cited above.

The Court is of the opinion that this is material which should have been disclosed, so that there was a failure of disclosure.

To this the prosecution say firstly that the defence should have requested their statements and that the point in relation to non-

disclosure should have been taken at the trial or at any rate much earlier than it was in fact taken. It seems ludicrous to submit that

the point should have been taken at the trial when, as the Court has found, the statements were not discovered or disclosed at that

time. The point is strongly made that the defence were aware that the witnesses had given evidence on deposition, and that is

undoubtedly so. But that in no way involves the disclosure, or hints at the existence, of the earliest statements whose content was

dramatically different either to the depositions or to the subsequent statements.

The prosecution next strongly argue, and this appears to the Court to be their main point, that even if there was a significant failure

of disclosure in relation to these statements, it cannot be regarded as being really important to the course or outcome of the trial

because any damage it did was in any event independently done by the applicants’ admission to Detective Superintendent Reynolds,

mentioned above. It is conceded, indeed it was emphasised by the prosecution, that this statement was generally exculpatory in

nature but it was said to place the applicant in Mr. Donnelly’s car and to establish a connection between the car and Ms. Lynskey.

On the hearing of this application the applicant asserted the position which he asserted at the start: he was not in Dick Donnelly’s car

as it travelled (if it travelled) towards the Navan Road at the relevant date and time. He was not voluntarily in the Garda Station, he

was never told that he could leave, and he was at one point locked in a cell. Under extreme pressure he acquiesced in what the

gardaí were telling him, the nature of the pressure being broadly similar to that described by Mr. Reilly. As to the time of his

application (a point strongly relied upon by the prosecution), Mr. Conmey says that after the failure of his appeal in 1973 he had, as

the law then stood, no further recourse. But he continued to assert his innocence and sought the assistance of his local Deputy, Mr.

John Bruton T.D. In the 1980s and 1990s he followed with great interest the progress of the miscarriage of justice cases concerning

the Birmingham Six and the Maguire Seven. Shortly after the Act of 1993, which for the first time, provided a remedy in cases such as

this, he consulted his solicitor.

Progress of the case.

Having regard to the emphasis placed by the prosecution on the delay in raising the non-disclosure point, it may be important to

summarise the facts about the progress of the case.

Outline history of proceedings.

The applicant sought advice from his present solicitors in 1996. After suitable investigations it transpired that neither of the two firms

who had previously acted for him had retained his file. In June, 1997, his solicitors wrote to the office of the Director of Public

Prosecutions requesting that the applicant be furnished with the Book of Evidence and all other relevant material and documents.

On the 21st October, 1997, the applicants were told by the Chief State Solicitor that the relevant documents were stored at both

the National Archives and Garda Headquarters. They were advised that the documents were being assembled and would be sent to

them by the Chief State Solicitor’s office on receipt of them by the State Solicitor.

However, on the 27th January, 1998, the State changed its front significantly. They now considered that the Director of Public

Prosecutions was “constrained by law not to release the documentation sought”.

Accordingly, the applicant made an application to the Court for an order for Discovery. An affidavit of discovery of Enda Walshe was

eventually sworn in January, 2004. But by that date a considerable quantity of documentation had been lost.

Superintendent Walshe says that the gardaí had documentation relevant to the case in Garda Headquarters in the Phoenix Park and in

Dunshaughlin Garda Station. The material at Headquarters was discovered in the affidavit of January, 2004.

As to the material in Dunshaughlin, it transpired that this material was forwarded to Drogheda Garda Station in November, 1997, some

months after the defence solicitors asked for it. Directions were given that the material be secured. But it was in fact stored in the

womens’ toilets in Drogheda Garda Station in a plastic refuse sack. Superintendent Walshe speculates that perhaps between

November, 1997 and March 2001 the materials may have been mistaken for rubbish and disposed of. The room it was stored in was, it

seems, rat-infested.

The affidavit of discovery includes statements from 105 people. However an inventory prepared at Trim Garda Station before the

dispatch of the documents to Drogheda extends to 371 statements. Thus, about 266 statements have disappeared since the defence

asked for the papers.

In relation to the Director of Public Prosecutions office materials, Mr. Donoghue, an officer of the D.P.P., says that the file was stored

on racking in the National Archives. It was forwarded to the Deputy Director on the 14th January, 1998, after Mr. Conmey’s solicitor

sought the documents. Thereafter the file was mislaid. When the affidavit of discovery was sworn in January, 2004, the file remained

mislaid but a case file was eventually located by the Government Supplies Agency on the 28th October, 2009. It appears that the

archive file, which had been mislaid, and the file found in 2009 “may be one and the same”. It was described as “The Trial Court file of

the Chief States Solicitors’ Office”. It does not contain depositions taken from Mr. Madden and Mr. Reilly.

Against that background, notably the unavailability of the Director of Public Prosecution’s file until at least late 2009, it does not

appear to the Court that the applicant can be debarred from relief on the grounds of delay, even if the Court were empowered to

reject an application on that ground.

The argument remains to be considered that the original statements are without significance having regard to the applicant’s

subsequent admissions. These, it is said, corroborate the later statements of Messrs. Madden Reilly and Shevlin and are in turn

corroborated by them.

This line of argument assumes that the two pieces of evidence, that contained in the later statements of the three witnesses and the

evidence of Detective Inspector Reynolds, are wholly independent of each other. This does not appear to be the case.

It is clear from the dates set out above that, within days of the taking of the first statement from Messrs. Madden and Reilly they

were again interviewed, a process which produced dramatically different, quite contradictory, statements. It was, as a number of

quotations above establish, this different account which led to the applicant and his friends being taken to Trim Garda Station. There,

the applicant, according to the prosecution, was “told that Madden and Reilly had made statements putting your car in the opposite

direction at different time”. (Trial, Day 8 at line 290). In other words, he was confronted with the later, unfavourable statements of

the men named, but not with their earlier, favourable, accounts.

On the hearing of this application there was evidence that a large Zephyr or Zodiac car had been seen on Porterstown Lane about

the relevant time, but the description of the occupants was inconsistent with any of the three suspects. Whether on that account,

or for some other reason, the fact is that gardaí having taken the statement of Séan Reilly on the 20th October, returned to him for a

further, and significantly different statement, on the 24th and having taken the statement of Martin Madden also on the 20th October

returned for another statement on the 25th. Having taken the statement of John Shevlin on the 17th October they returned for

another on the 25th October. Why they did this and why and how the statements changed, are all unexplained, except in the case of

Mr. Reilly, whose account of how the gardaí procured the altered version has been quoted above.

It must be obvious, at a minimum, that having sight of the original and totally inconsistent statement of, for example, Martin Madden,

would have put the defence on inquiry as to why his account was transformed.

In those circumstances the existence of the original statements and the questions which must necessarily arise as soon as these

originals are considered, about how the witnesses’ account came to change, appear to be highly relevant both to the question of the

applicant’s movements at the relevant time, and quite separately, to the question of the veracity and reliability of the garda account

of the legality of his lengthy retention (to use a neutral term) in Trim Garda Station. On this, in turn, depends the admissibility of the

statements attributed to the applicant while in Trim Garda Station. It is quite impossible, especially after so many years, even to

approach certainty as to what the effect of this non-disclosure was.

However, the task of the Court on an application such as this is not to attempt the fruitless task of achieving certainty about a

hypothetical change in the evidence in a trial that took place more than thirty years ago. It is instead to resolve the question

whether this is a case “… where facts came to light for the first time after the appeal which showed that there might have been a

miscarriage of justice” The People (D.P.P.) v. Meleady and Grogan [1995] 2 IR 517 at pp. 540-41). The Court is of the opinion that

it is such a case.

On this basis the Court will quash the conviction of the applicant.