Court of Criminal Appeal dismisses application for retrial based on newly discovered facts and alibi evidence.

THE COURT OF CRIMINAL APPEAL

Hardiman J. 27CPA/08

McKechnie J.

Birmingham J.

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

Between:

CATHERINE NEVIN

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

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…

and 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, according to the 1993 Annual Review

of Irish Law, “the legislative reaction to the fall out from recent well publicised cases of miscarriages of justice, including the Guildford

Four and Birmingham Six cases in Britain and, in Ireland, the Nicky Kelly case.” The learned authors of the Review 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.”

It was of course inevitable that the Section cited above, which introduced such dramatic changes into the criminal law and procedure

of Ireland would be authoritatively interpreted by this Court not long after its passage. In a judgment delivered by Keane J. (as he

then was), The People (Director of Public Prosecutions) v. Joseph Meleady and Joseph Grogan [1995] 2 IR 517, the Court was

concerned with an alleged non-disclosure of evidential material, and actual misstatement in court of the effect of that material, and

whether it rendered a conviction unsafe. The Court was required to construe s.2 in particular which it did in what we respectfully

consider to have been a discerning fashion. Keane J. said, at p.540:

“… 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 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 is

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.”

(Emphasis added)

This passage, whose citation at some length is absolutely necessary to discover 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 judgment in the Meleady case immediately became, and has remained, the leading judgment on the construction of s.2 of the

Act of 1993. Naturally, however, different cases arising under the subsection, with their infinitely varied facts, have caused the

Court, in subsequent decisions, further to discuss the Section. Thus, in The People (DPP) v. Gannon [1997] 1 IR 40, the Court

emphasised that on an application under Section 2 it :

“is required to carry out an objective evaluation of the newly discovered fact with a view to discovering in

the light of it whether the applicant’s conviction was unsafe or unsatisfactory.”

In D.P.P. v. McCarthy and Others [2008] 3 I.R.1, it was held that:

“A failure of disclosure must be shown to have important, as distinct from technical or trivial consequences, if a conviction is to be

regarded as unsafe”.

Finally, for purposes of this case, it may be important to give another citation from the Gannon case:

“… the question whether a newly discovered fact has rendered a conviction 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.”

These various citations appear cumulatively to amount to this. Firstly, the applicant in an application under s.2 need not establish

that a miscarriage of justice has actually occurred before a conviction can be quashed. This is because the Act operates to provide

redress in cases where facts come to light for the first time after an appeal, which showed that there may have been a miscarriage

of justice. Accordingly, the Section provides a 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. This in turn appears to require a failure

of disclosure which is significant, and not merely technical or trivial (still less irrelevant) if a conviction is to be regarded as unsafe.

Finally, the question of significance as opposed to triviality of an undisclosed fact or document cannot be determined, or at least

cannot be determined solely, by a consideration of the course actually taken by the defence at the trial. It would be a dangerously

hypothetical exercise to speculate, having regard to that course, what approach the defence might have taken if they had known a

fact which was actually concealed from them at the relevant time. But in an appropriate case it might be proper to consider the

defence’s attitude at the trial if, for example, a newly discovered fact arose which however might only have supported a defence

which the conduct of the accused’s defence had specifically disavowed at the trial, or had not pursued in cross-examination or

otherwise.

Legal Background.

Catherine Nevin was, on the 11th April, 2000, in the Central Criminal Court (Carroll J. and a jury) convicted of the following offences:

(1) That on the 19th March, 1996, at Jack White’s Inn, Ballinapark, Arklow, Co. Wicklow, she did murder Thomas Nevin.

(2) That on divers dates in or about the year 1989 at Finglas, Dublin, she did solicit John Jones to murder Thomas Nevin.

(3) That on divers in or about the year 1990 within the State she did solicit Gerard Heapes to murder Thomas Nevin.

(4) That on divers dates in or about the year 1990 at St. Vincent’s Hospital she did solicit William McClean to murder Thomas Nevin.

The jury had been instructed, as was absolutely necessary in the circumstances of the case, that Mrs. Nevin could not be convicted

on the murder count unless she was convicted of at least one of the counts of solicitation.

Mrs. Nevin appealed these convictions without success.

Circumstances of Thomas Nevin’s death.

The deceased Thomas Nevin was 55 years old in March, 1996. He had married the former Catherine Scully in the year 1976. They had

owned Jack White’s Pub since 1986.

Thomas Nevin was found dead in the early morning of the 19th March, 1996, by gardaí who had been summoned to his licensed

premises by the activation of a panic alarm. These premises are the very well known “Jack White’s” on the main Dublin to Arklow

Road, at the point where the road from the seaside resort of Brittas Bay joins the main road. Mr. Nevin was found dead in a service

area of the premises, surrounded by the books and papers he needed for doing his accounts. His pen was still held in his hand in a

writing position and his glasses were still on his head. There was unchallenged scientific evidence to the effect that he had been shot

at very close range - between one and four yards. He had been shot with S.G. shot, each pellet of .33 inch calibre, comparable to a

revolver bullet. There was no evidence of a forced entry and no evidence of a struggle. It appears that the deceased man had no

time to react and was shot at close range by an assailant who had walked into the premises.

It appears that the assassin or assassins escaped in an Omega car belonging to the family, later found in Dublin.

It is possible to be reasonably precise as to the time at which Mr. Nevin was murdered. Shortly after midnight he left the premises to

drive two regular customers to their nearby homes and, according to Mrs. Nevin’s statement, arrived back at 12.20am on the 19th

March, 2000. Moreover, he required in order to complete the accounts a reading from the till, known as a “Z1” reading, and this was

taken at 12.43am indicating that he was doing, or ready to do, the accounts at that time. There was evidence that the accounts

would normally take thirty or thirty-five minutes, but longer at weekends. It was thought that the three book-keeping books upon

which Mr. Nevin was working were close to completion at the time of the killing. There was an estimate from a Ms. Liz Hudson who

worked in the premises that the accounts might take an hour at weekends.

Accordingly it is reasonable to think that the murder took place between 00.43am and about 1.45am. Mrs. Nevin herself estimated

that the accounts would have been completed at 1am or 1.30am.

One has no hesitation in using the word “murder” for the killing of Mr. Nevin, even apart from the verdict of the Central Criminal Court.

All the circumstances point to a deliberate shooting of the deceased gentleman as he sat there doing his accounts, before he had any

time to react in any way, and from very short range.

Relations between Mrs. Nevin and the deceased.

There was evidence from Mrs. Nevin herself that she and Mr. Nevin slept in different rooms on the premises. There was ample

evidence that she had expressed ill will towards him to a number of different people. She told Assistant Commissioner McHugh that her

husband was violent and assaulted her with the result that she was hospitalised on occasions. But the evidence appeared to establish

that her hospitalisations were for the purpose of cosmetic surgery. She made similar allegations to staff members at the pub, none of

whom ever observed any assaults by the late Tom Nevin on the applicant.

She told Mr. Donnchadha Long, a carpet layer who visited the premises shortly before the killing, that her husband was a big drinker

and that she did not like him. Equally she told Assistant Commissioner McHugh that he drank a litre of whiskey a day. There was no

extraneous evidence to support this and the blood alcohol level taken from the body suggested that he had had three to five drinks

on the weekend of the 18th/19th March. She also told Donnchadha Long “that she was going to have him done” referring to Mr.

Nevin. She told Agnes Phelan that she would “sort him out”. She told a number of people that the relationship between herself and

Tom was merely that of business partners and told both Ann-Marie Finnerty and Assistant Commissioner McHugh that they were

planning to separate. She told Mr. Pat Russell in the Davenport Hotel that she wanted Tom out of the business but that she did not

believe he would go.

The case against Mrs. Nevin.

It must immediately be said that the case against Mrs. Nevin for the murder of her husband was entirely circumstantial. It was not at

any time suggested by the prosecution that she had directly and personally fired the shot that killed Mr. Nevin, but rather that she

had procured someone else to do so. The evidence against her on each of the three counts of solicitation, on the other hand, was

the direct evidence in each case of the person said to have been solicited, Messrs. Jones, Heapes and McClean. This was denied by

Mrs. Nevin in each case but it is clear from the verdicts that the jury accepted the evidence of each of these prosecution witnesses.

Once this evidence was accepted, the three previous acts of solicitation, combined with the circumstances of the actual death, were

significant parts of the circumstantial case against Mrs. Nevin as it was presented at the trial.

The Solicitees:

John Jones said he had first met Catherine Nevin in 1984 or 1985. He was a member of a Sinn Féin Cumann in Finglas and ran an

Advice Centre for that party there. He met Mrs. Nevin when she came to the centre because she was in search of a pub to rent.

Subsequently she and her husband rented the Barry House Pub in Finglas. Mr. Jones said he made two visits to Jack White’s in 1986.

He said the Advice Centre in Finglas was in a portion of his television repair shop premises. When Mrs. Nevin was involved in the Barry

House, she allowed Sinn Féin to sell their newspaper “An Phoblacht” there and to run fundraising functions. After she moved to

Wicklow she continued to call to the Advice Centre. On one such occasion she called in and explained that she was in Dublin to

attend the Mater Hospital with a medical problem. She visited the centre four or five times a year. In or around 1989 she came to the

centre and spoke to Mr. Jones for three quarters of an hour. Eventually she said “I have a proposition for you”. She continued “I want

you to get the I.R.A. to kill Tom”. Five or six weeks later she asked Mr. Jones had he thought about the proposition. She said she

wanted Tom killed by the I.R.A. in what would look like a botched hold up. She said there would be a sum of over €20,000 available

for the job. She said that he (Tom) would always lodge money on a Tuesday after a bank holiday. She said that normally one of the

young male staff travelled with him to lodge money but she would ensure that he was alone on the occasion fixed upon for the killing.

She said there would be a lot of money after a bank holiday. Mr. Jones said that he replied that he could not do such a thing, that he

knew Tom Nevin and got on well with him. He said that on another occasion she approached him in the Advice Centre wearing dark

glasses and with bandages on her hands. She said that Tom had assaulted her and showed bruising. However, there was other

evidence that she had been hospitalised for cosmetic surgery to her eyes around that time. Mr. Jones said he had two or three

further meetings with Mrs. Nevin at which her proposal to kill Tom was mentioned. Eventually he said, according to himself, that he

did not want to hear any more of it and he did not see anymore of her after that.

It is notable that Mr. Jones’s telephone number was found in Mrs. Nevin’s bedroom.

Mr. Heapes was also a member of the Sinn Féin Cumann in Finglas who had previously served eight years for his role in an armed

robbery carried out on behalf of the Provisional I.R.A. He met Mrs. Nevin the Sinn Féin Advice Centre in Finglas. He said that he had

attended the opening of Jack White’s in 1986 and had met William McClean there. He met her again in 1989 in the Barry House where

he was working as a doorman. She complained that Tom was beating her up and she said she wanted him (Heapes) to kill Tom. Later

she said she wanted him to kill Tom or to get someone else to do so. The following week she approached him again, this time in the

Cappagh House, another pub in Finglas. He got into her car and she drove him to the Phoenix Park and asked en route if he thought

about her proposition. She said that she was serious that she could not take any more abuse. She said she wanted him killed in the

pub to make it look like a robbery. Heapes said to her “you couldn’t do that”. She next suggested that Tom collected rents from

apartments on the South Circular Road and explained that he would be making lodgements after a bank holiday. She mentioned he

would be taking £25,000 to the bank. Heapes said that he had replied that he would not kill anyone for that amount, whereupon she

increased the price to £40,000, £25,000 from the takings and the rest to be paid within six months. He said that he had met her in all

about ten times in different places and had been to the flats on the South Circular Road where she suggested that the killer should

wait inside the house and do it there. She proposed that the killing should be done on or after a bank holiday weekend because he

would have the weekend’s takings when he went to lodge the money in the bank on the Tuesday after the bank holiday.

Heapes claimed that at one of these meetings she had showed him a bank book with £6,000 to £8,000 in it. This, she said, was in her

maiden name, Catherine Scully. It was opened in June, 1989. When it was transferred to AIB, Drumcondra, in February, 1991, there

was nearly £22,000 in it.

As an alternative plan, Mr. Heapes said Mrs. Nevin suggested that he should shoot Tom outside the Grasshopper Pub in Clonee where

he sometimes went for lunch. They (Heapes and the applicant) went to the Grasshopper on three occasions. She suggested that he

could wait until Mr. Nevin came out of the pub and then shoot him and take the keys to the boot of the car, where his lodgement

would be. She said she would go back with him to the Grasshopper on the day fixed for the assassination because it would “look great

if Tom were to die in her arms”. He said she suggested both St. Patrick’s weekend and the August bank holiday weekend for the

killing.

The third solicitee was William McClean. He said first met Mrs. Nevin in late 1984 or early 1985 and that he had an affair with her

which lasted until August or September 1986. Tom Nevin knew about this affair, he said. He said that Tom was a “nice quiet man”. He

never saw any emotion or violence between Tom and Catherine. He said that after they bought Jack White’s he would occasionally

help out in the bar. When the affair finished he had no contact with her until around Christmas 1989 or early 1990. He called to Jack

White’s about that time with his then girlfriend and while they were there she asked him how she could contact him. He said he could

be contacted at the Irish House Pub in Harold’s Cross. She did in fact contact him there in 1990 by telephone. She said that she was

in St. Vincent’s Private Hospital and asked him to visit her. He went there and saw her in her private room. She said that Tom and

herself were not getting on and asked would it be possible to get someone to kill him for a price of £20,000. He asked her why she

would do that and she said she would get the insurance money, the lot, everything. She proposed that he might be killed at the flats

or on his way to the bank, however Mr. McClean indicated that he did not want to be involved and walked out of the hospital.

Jack White’s on the night of the killing.

The prosecution maintained that there were a number of unusual circumstances obtaining in the Jack White’s premises on the night of

the killing. In the first place it was noted (apparently without dispute), that both Mr. and Mrs. Nevin were very security conscious.

There was an elaborate alarm system in place in the pub and there were also various safes. They always locked up after the last

customer left. A member of the staff called Bernie Fleming said that she would normally deactivate the alarm when she came on duty

in the morning. However in the period coming up to Tom’s death she noticed that the alarm was sometimes off. Two witnesses, Liz

Hudson and Catherine McGraynor said that Mrs. Nevin did not herself do the washing for the premises but on the 18th March at about

11.15pm she went in and out to the service area and the rear hallway of the premises. On one occasion about that time she was in

there for about ten minutes. She explained this by saying that there was fifteen minutes to go on the washing machine. But when Ms.

Hudson went to check the machine there was nothing in it, the towels were in a bucket and there was no condensation or water on

the door of the machine. She concluded that the machine had not been used. The purpose of this evidence was apparently to fix Mrs.

Nevin with an opportunity to open a rear door.

There were a number of live in staff on the premises. It was usual for them to go to a local disco on the Monday of a bank holiday

weekend and to come back and sleep on the premises. But for some weeks before the bank holiday weekend Mrs. Nevin had made it

quite clear that there was no question of staff staying on the night of the 18th/19th March. According to Liz Hudson she said on the

18th “There’s no-one, and I mean no-one, staying here tonight”, on the 18th March. Two or three weeks before that she had told

Jessica Phelan that no-one was coming back to the pub after the disco on the bank holiday weekend. Similarly, Catherine McGraynor

was told that she could not come back on that night. A number of staff members gave evidence to support the proposition that they

normally came back after the disco on a bank holiday Monday.

A Mr. Gerard Molloy gave evidence that he had tried to reserve bed and breakfast accommodation for St. Patrick’s weekend,

1996 in Jack White’s but Mrs. Nevin said there was nothing available. This seemed to happen on or about the 8th February, 1996.

When the gardaí came to the premises about 4.30am on the morning of the 19th, having been alerted by the panic alarm, they found

Mrs. Nevin there dressed in night attire. She said that she had gone to bed about 12.30am the previous night and while she was

reading in her room, or just before she fell asleep (her accounts vary) she was disturbed by a raider who was hooded or masked. She

said she only saw this person but was conscious of the presence of another person. She said he had tied her up and searched her

room, demanding jewellery. He had tied her hands and feet but she had managed to get her feet loose. There were two panic alarms

in her room but neither was used. She went downstairs and used the alarm beside the door. Not until some time after the gardaí

arrived did she mention the question of where Tom was. The gardaí went to look for him and found his body, as described above.

It is clear that a shot was fired while Mrs. Nevin was, according to herself, upstairs in her bedroom. The gardaí conducted

experiments and found that a shot fired in the room where Tom Nevin was doing the accounts was clearly audible in the bedroom

beside Mrs. Nevins. They could not experiment with Mrs. Nevin’s room because she would not permit them to do so. The shot was

clearly audible, said the gardaí, but Mrs. Nevin said she had heard nothing except a noise like that of a pot being dropped. It was also

material that, on the Friday of the bank holiday weekend, Tom Nevin had gone out with the view to lodging the cash he had on hand

in a local bank. He drove Mrs. Nevin to her doctor’s, was delayed, and did not make it to the bank in time to make the lodgement.

Mrs. Nevin had earlier gone to the bank, apparently to get change, and had enquired what the latest time was at which one could

make a lodgement.

___________________________________________________________

There was evidence led at the trial to support all of the foregoing propositions. Some of it was contradicted by Mrs. Nevin and there

were clearly issues of credibility, but these were for the jury to resolve. It is obvious from the verdicts that the jury accepted the

evidence of Messrs. Jones, Heapes and McClean, since there was no other evidence on these counts.

The point was strongly made for the defence that the three alleged episodes of solicitation were six or seven years before the actual

murder. That, too, was a matter for the jury to assess and to give such weight as they thought proper. If the account of the

solicitees, and particularly the most detailed account of Mr. Jones, was accepted, it would clearly be an extraordinary coincidence if

someone else, for reasons other than being requested or paid by Mrs. Nevin to do so, had come into the pub, on or about bank

holiday weekend, through a door which happened to be unlocked, and murdered Mr. Nevin. Again, it would be an extraordinary

coincidence if a killer other than one procured by Catherine Nevin found the premises occupied only by Mr. and Mrs. Nevin on the

night when the fatal attack took place, again assuming that the tribunal of fact accepted the evidence of the solicitees and of the

staff members who gave evidence of being excluded from the premises on the night in question. From a prosecution point of view,

there was no reason why the staff members should lie on this subject.

Mrs. Nevin’s case.

Mrs. Nevin gave evidence at her trial commencing on Tuesday 14th March, 2000. It is not proposed to set out or to summarise all of

her evidence, but to limit the summary to topics which are significant having regard to the nature of the prosecution case. She said

that it was not true that she had met Mr. Jones at a Sinn Féin Advice Centre. She had not gone there enquiring for licensed premises

to rent. She had never in fact been in the Sinn Féin Advice Centre though she had “once or twice” been in Mr. Jones’s TV repair shop,

where the Advice Centre is also situated. She said she knew Mr. Jones only to see, as a friend of her husband. She said that it was

her husband who had permitted the sale of “An Phoblacht” in the pub. He was friendly with the vendor, Mr. Ellis. Having said this she

said that her husband had political friends of his in the premises but that she really did not know everything that had happened there

because “I wasn’t there all the time”. Asked what kind of political friends or from what political party or organisation these people

were, she said “… my husband was a member of the I.R.A.”.

This was a very dramatic assertion. It had not been put to any of the prosecution witnesses, even to Mr. Jones who was linked by

her to the I.R.A. Later, the prosecution were permitted to call evidence rebutting it. They called nineteen witnesses, both Gardaí and

civilians, for that purpose.

Mrs. Nevin went on to say that her husband, Mr. Jones and certain other people, including one man from Northern Ireland, had

planned to go into partnership in the purchase of a pub in Kilinarden. She and her husband arranged the finance through a named

bank manager and the Nevins’s were to put up three houses which they owned between them as security for the borrowing. Jones

was to put up £100,000 but the premises was to be in Tom’s name alone. But this transaction did not go ahead because “something

happened between John Jones and my husband and the deal just couldn’t go through. My husband was very upset over it”. After that

they went looking for another licensed premises and eventually bought Jack White’s. She said:

“… my husband, God rest him, had a lot of dealings with Mr. Jones but I don’t really know what they were

about. They were political, I have no idea what they were about.”

She described a strange event that had, she said, occurred in a property owned by the Nevins at 446 South Circular Road. She said a

flat there had become vacant and Mr. Jones wanted it. This, she said, was during the time they were in the Barry House. She said

Tom had given the flat to him rent free. When he was about five weeks there she was passing the premises. It could have been the

month of February, 1985. She noticed that all the lights were on in the house at 2 or 3 in the morning. She said she went in to check

what was going on and she was then confronted by two men who “came at me with a sheet of glass”. She said the door to Mr.

Jones’s flat was solid wood at the bottom but there were glass panels above. The glass was broken. As she went to go in “two men

came for me and they had a piece of glass in their hand and I put up my hands to protect my face and my two fingers on my left

hand were very badly injured”. She required hospital treatment as an out patient. Her husband told her not to ring the police and she

did not do so. Inside of Mr. Jones’s flat there was “… all bundles of wire and what looked to me like little small components of the

backs of televisions”. Her husband said that these would have to be given to John Jones immediately, Mrs. Nevin said.

Mrs. Nevin was then asked in direct examination about her acquaintance with Mr. Heapes. He said that John Jones introduced Mr.

Heapes to herself and her husband in the Barry House. Her husband said that he (Heapes) “had been in Portlaoise Prison for some sort

of problem”. He introduced Mr. Heapes to her, on the street just outside John Jones Television Shop in Finglas. They went to another

pub, not the Barry House, and had a cup of coffee. She said she never had any “meetings” with Mr. Heapes but occasionally he would

come into the Barry House for a drink. He spoke frequently to her husband. She said it was not true to say that she had met Mr.

Heapes in the Sinn Féin Advice Centre.

She was then asked by her own counsel about her involvement with Mr. McClean. She said that Tom had introduced her to Mr.

McClean in the Red Cow Inn where they went after collecting some rents from their premises in Mayfield Road, Mountshannon Road

and 446 South Circular Road. This was about a year before they left for Jack White’s. Tom introduced him, and seemed to know him

quite well. They all had a drink which Tom bought. She had never sought his company or met him again, prior to their move to Jack

White’s except once when he called looking for Tom and he wasn’t there. Mr. McClean simply went off. He was in a way involved in

some capacity in the movement of their furniture to Jack White’s. She never had any relationship with him.

She said she and her husband were joint owners of Jack White’s. She said they had quite a lot of patronage by guards:

“Arklow Station had four units and three of the units came on a regular basis. They were of great assistance

to us, helped in every way they could. One unit didn’t, never came in.”

She said however that in 1991 a young girl who worked in the premises “was sexually assaulted by a policeman in the early hours of

the morning in the patrol car” and that she herself had made a “confidential statement” about this to a Superintendent. Later, after

Tom’s death, she was sued for defamation by one of the gardaí. As a result of this ill feeling none of the rank and file gardai would

come to her premises but some of the higher ranks did. She said that the business in Jack White’s was mainly food and drink and

although there were bedrooms available they did very little B & B trade, principally because they used the rooms to accommodate the

staff. She said that in the summertime they would have about eighteen staff but in the winter it would be cut back to eight or nine

and some part timers. They built up the food business until they served a full range of Restaurant food. She denied that the

relationship with Tom had deteriorated. She said that they had always slept in separate rooms but their personal relationship

continued and was good. She denied asking the three men who had given evidence or anyone else to kill Tom Nevin. She repeated for

a third time that she was never in the Sinn Féin Advice Centre “ever in my life”. She said she had never complained that her husband

was violent to her and that he was not in fact violent. She was never in the Phoenix Park or in Clonee with Mr. Heapes and neither

was she in any of the flats with him. She said that Tom had refused to rent a flat to Mr. Heapes because of his background. She had

written down Heapes number when he said that he would like a flat. She did so because, she said, she would have to get Tom to ring

him. When Tom reacted very much against renting the flat - “He said that because he had been in prison, if he let a flat to him it

would draw attention to the house…”, she said she later scratched the number out of the book having seen Tom’s reaction. When she

was asked about the fact that a garda said he had seen the number uncrossed out in the book just subsequent to the murder and

had then seen the book some days later when the number was crossed out she said it was crossed out because Tom was so annoyed

about it. She said that she had never seen Heapes from the time he had abortively tried to rent their flat to the time she saw him in

court during the trial.

Mrs. Nevin said that she had never telephoned “Willy McClean” and asked him to come to St. Vincent’s Hospital and had never asked

him to kill Tom or have him killed. She had never ascribed a desire to own the pub and lay her hands on the insurance policies as the

reason for killing Tom. She had had several hospitalisations but McClean never visited her in hospital at all. She knew nothing about

McClean except what her husband told her. Tom had said that he (McClean) “had plates and that he was in to making twenty pound

notes”. The prosecution pointed out that this was never put to Mr. McClean, either.

It appears that after the second day of her evidence, prior to cross-examination, Mrs. Nevin disappeared. She was gone for several

days and when she returned gave an account of having gone back to a flat where she was living and found a man there who she said

compelled her to take some tablets. Her explanation was accounted for by her counsel on the 20th March, 2000, on the basis that

she “is still in hospital suffering from the effects of the ingestion of noxious substances”. She was treated by a number of doctors

including two psychiatrists. In his evidence on this point the defendants’ solicitor, Mr. Sheehan stated that he did not know whether

or not she was under the care of a toxicologist, but that she had undergone various blood tests. He had not got a toxicology report.

Mrs. Nevin had not authorised him to tell the court the circumstances leading to her hospitalisation. Answering a direct question he

said that he was not in a position to tell the Court what was wrong with Mrs. Nevin. He understood that the noxious substances in

question were Delamene and certain diuretics. There may have been other substances.

When Mrs. Nevin returned to court, on the 22nd March, 2000, she identified the man whom she had found in her flat as someone she

did not know by name “but the man was a friend of my husband’s, a connection of my husband’s”. He was wearing an anorak with a

hood and had a beard and seemed to be “about nearly forty years of age”. She had seen him quite a few times over the years.

She said that she had gone to put the side light on and she fell over the man’s feet where he was sitting on the couch. He told her to

sit down and he told her that she was naming people she should not be naming in court “… and he made me take tablets which he

took out of his pocket”. She had no idea what they were. She did not remember anything else until she was in hospital.

When evidence resumed in front of the jury she described Tom Nevin as “an alcoholic but - Tom was a very disciplined alcoholic…”.

She described certain episodes of alleged drunkenness. No third party evidence supported the view that Tom Nevin was an alcoholic

or drank excessively.

Asked about evidence that she had said to an employee, Ms. Douge “there are two ways Tom will meet his death, driving while drunk

or resisting a robbery”, she did not deny the substance of this conversation. She did however deny the conversation with Mr.

Donnchadha Long.

As to staff staying on the premises, she said that Tom had made it a rule that they could only return to the premises late at night,

for example after a disco, if one particular senior member of staff, Alan McGraynor, was there to let them back in. But Mr. McGraynor

was not available on St. Patrick’s weekend, 1996, because he had had an accident. She had never known Ms. Hudson to let people

back in. She said that on the night of the 18th/19th March “It never even crossed my mind” to expect the staff back because Alan

was not there. She said she did not give any directions at all about people not coming back to Jack White’s “because it was an

understood thing that if Alan wasn’t going to the disco that if the staff were coming back, they didn’t - sometimes they didn’t come

back if they didn’t go to a disco” (sic).

Mrs. Nevin denied all of the comments attributed to her which were detrimental or of threatening to her husband and specifically

denied saying that she would “do him” or “have him done”. She could give no explanation why the relevant witnesses had given

evidence of these comments.

Mrs. Nevin said that she had never told anybody about her husband’s confession to being in the I.R.A. She said she understood he

was dealing “with money aspects” of the I.R.A.

Observation on Evidence.

It appears from the foregoing that the evidence establishes, without controversy or contradiction, that the late Mr. Tom Nevin was

murdered by being shot with a shotgun as he did his accounts in a service area of Jack White’s Pub, on the ground floor. His assailant

appeared to have entered and left the premises by a door to that area which was normally locked after public house hours. At the

time the assailant entered the premises there was no-one present except the deceased, in the service area, and Mrs. Nevin, in her

bedroom upstairs. A shot fired in the service area was clearly audible on the bedroom floor but Mrs. Nevin said she only heard a sound

like a pot falling. When she left the bedroom she did not immediately investigate the whereabouts of her husband but got the guards

to do so sometime fairly shortly after their arrival, after an interval of some hours during which she had not seen him, and during

which she knew there had been a robbery.

There was also evidence, available for the consideration and assessment of the jury, that Mrs. Nevin had, some six or seven years

before the death of her husband, solicited three separate men to kill him. There was evidence that she had suggested that might be

done in a number of different ways. These included that he might be killed at the end of a bank holiday weekend (apparently so that

the amount of cash available for robbery would be maximised) in the pub, or when he went to lodge the takings. There was evidence

that Mrs. Nevin had suggested that she could ensure that Mr. Nevin would be alone at the time decided upon for the attack, although

he normally brought a male member of staff with him when he went to make lodgements. There was evidence that Mrs. Nevin had

made threats in relation to her husband, for example that she would “do” him or “have him done” and very odd remarks were

attributed to her such as that her husband would die in one of two ways, when driving while drunk or when resisting an armed

robbery. There was evidence that she was on bad terms with her husband, sleeping in separate rooms and complaining of serious

assaults by him. There was evidence that the facial injuries she showed to a witness in support of her account of assaults might have

been referable to cosmetic surgery which she had had performed.

Much of this evidence was controversial and was contradicted by Mrs. Nevin. Its assessment therefore became a matter uniquely for

the jury and not for the trial judge, the Appellate Court or this Court on the present application. Having regard to the verdict of the

jury and to the directions given to them by the learned trial judge it appears quite clear that the jury accepted the evidence of the

three men who gave an account of being solicited to kill Tom Nevin by his wife. There was quite a volume of other evidence,

damaging to Mrs. Nevin, which was available for the jury to accept, if they wished, for example the evidence that she had ensured

that no staff member, even those who normally slept on the premises, would be there on the night of Mr. Nevin’s death; evidence

that the premises were normally carefully secured at night; evidence that Mrs. Nevin, though she did not normally attend to the

washing of sheets etc. in the washing machine went, allegedly to check on the washing, into the service area and observed that

there was fifteen minutes left on the washing cycle; evidence that in fact the washing equipment had not been used at all at the

relevant time.

There was, accordingly, quite a volume of evidence available to the jury as to the classic matters of motive, means, malice,

opportunity and conduct of the defendant, if they chose to accept it. This was the evidence of many different people, with no

obvious shared motive to implicate her.

It is against this background that the alleged new or newly discovered facts must be viewed.

Matters relied upon.

In the “Statement of Grounds” of the 13th February, 2008, the applicant relied on the following matters in support for application that

the conviction should be quashed because new or newly discovered facts showed it to be unsafe:

1. On the 11th day of April 2000 the Applicant was convicted of the murder of Mr. Thomas Nevin and three counts of solicitation to

murder Thomas Nevin.

2. The three alleged Subornees were John Jones, Gerry Heapes and William McClean.

3. There are newly-discovered facts (since the trial and the appeal herein) which reveal that there has been a serious non-disclosure

in this case such that the Applicant did not receive a fair trial herein.

4. The said newly-discovered facts go to the credibility and connections of the three alleged Subornees Mr. Gerry Heapes, Mr. John

Jones and Mr. William McClean and possibly also to the credibility and connections of another State witness Mr. Patrick Russell.

5. During the trial herein certain Special Branch files in relation to Mr. Tom Nevin, Mr. Gerard Heapes, Mr. William McClean, Mr. John

Jones and Mr. Pat Russell were given to the Prosecutor and ultimately the Trial Judge.

6. It is most likely that the newly-discovered facts were contained in said files. However despite seeking disclosure of these files

same was refused on the basis of lack of relevancy.

7. The decision of the trial Judge in this regard was upheld on Appeal.

8. Even if the said newly-discovered facts were not contained in the said files then they were contained in other documents in the

possession of the State or an arm of the State and these documents should have been disclosed to the Defence.

9. In relation to William McClean the newly-discovered facts are that he had Paramilitary connections at the time of the trial and/or

was a State informer since approximately 1974. (When I say a State informer I mean a paid informer).

10. In the case of Gerry Heapes and John Jones the newly-discovered facts are that they were State informers (i.e. in the pay of the

State) at the time of the Trial herein.

11. This non-disclosure has a very serious impact and could have affected the minds of the Jury. Apart from the alleged subornations

(which allegedly happened seven years, in the case of John Jones and six years, in the case of Gerry Heapes and William McClean,

prior to the murder), there was only circumstantial evidence against the Applicant herein in respect of the Charge of Murder.

12. It was conceded by the Prosecution during the Trial herein that the Charge of Murder could not proceed against the Applicant

without the evidence of the said solicitations being admissible on the Murder Charge.

13. The failure by the DPP and/or the Trial Judge to make any adequate disclosure to the Defence of the said newly-discovered fact

or facts rendered the Applicant’s Trial herein so inherently flawed for want of disclosure that the convictions of the Applicant for

Murder and the said three Solicitations to Murder were a Miscarriage of Justice.

14. These grounds are set out in further detail in the Affidavit of Anne Fitzgibbon herein.

This Court inspected the documents already inspected by the Trial Court and the Court of Criminal Appeal and confirms that they

were quite irrelevant to the trial and are irrelevant to present application.

On the hearing of this application, counsel for Mrs. Nevin, Mr. Hugh Hartnett S.C. identified the principal matter relied upon as follows:

“Well the height is, taking the various points I’ve made, we have discovered a document which contradicts

the evidence of one of the chief witnesses, the Suspect Antecedent Form, which may place him as a suspect

in the matter himself, and which is bound to have a significant effect on the mind of a jury because people

will lie to protect themselves and that, I submit, is one of the considerations that the jury will take into

account, the extraordinary factors involving McClean’s presence - or absence according to him - in the Four

Courts Hotel in the days preceding the Dublin/Monaghan bombings in 1974, where whatever material was

given to Mr. Justice Barron, and we don’t know what it was, led him to form the conclusion that this man had

a known association with a well known paramilitary, Joseph Stewart Young.”

This statement by counsel on behalf of Mrs. Nevin perhaps requires being placed in context. He is referring to information from two

sources, or discovered in two separate ways. The first relates to the inquiry which was carried out by the late Mr. Justice Henry

Barron, and later by Mr. Patrick McEntee S.C., in relation to the Dublin/Monaghan bombings of 1974 and the investigation into that

event. This inquiry happened in the present decade, more than thirty years after the event. The material referred to consists in part

of certain statements taken for the purposes of the inquest into those killed in the Dublin bombing, some of these people were

employees of the former Four Courts Hotel and another was a local small businessman. The proposition which the defence were keen

to establish is that William McClean was a man who had stayed in the Four Courts Hotel for some days immediately prior to the Dublin

bombing of May, 1974, some twenty-six years prior to the trial. The material in question does not itself establish this identification but

it is fair to say that it provides some leads which might be useful to a person attempting to identify the witness William McClean with

the man in the hotel twenty-six years previously. For example it provides the names of some people who apparently had dealings with

a man staying in the hotel and who, if alive and still available, might offer an opinion on the identity of the man, insofar as that can

be done after an interval of thirty-six years. This material also contains an unevidenced hearsay assertion that Mr. McClean was

friendly with Joseph Stewart Young, said to be a loyalist paramilitary. Mr. McClean denies this connection in a statement.

The second class of material involved first came to public attention by being published, in photographic form, in an article in a tabloid

newspaper written by a journalist called Niamh O’Connor. It was, or purported to be, a “Suspect Antecedent History Form” relating to

William McClean. It was a very remarkable feature of this hearing that Ms. O’Connor, having been called as a witness by Mrs. Nevin’s

legal advisers, took the opportunity, without being asked, to proclaim her own strong view that Mrs. Nevin was guilty of the murder of

her husband. She declined to say where she had got the document in question but it certainly originated in garda hands. She said,

however, that she had been approached by “a professional person on behalf of Mrs. Nevin” and asked to “spin a yarn” favourable to

Mrs. Nevin, in return for which she would be given, apparently on an exclusive basis, the first opportunity to interview Mrs. Nevin

after she was released. She said she declined this offer.

Ms. O’Connor, in the article she wrote for her newspaper, referred to the photograph of the document and wrote as follows:

“This is the top secret document black widow Catherine Nevin hopes will free her from jail.”

Some legal aspects.

The only conceivable basis upon which Mr. McClean might have been cross-examined on the question of whether or not he was the

man in the Four Courts Hotel, or whether the contents of the form referred to was correct, is that it was relevant to credibility. But

this is a “collateral” issue and it seems quite clear in law that his answer to any such question would have been binding on the cross-

examiner and could have been taken no further. Thus, in Healy’s Irish Laws of Evidence, (2000) at p.76, para. 3.1, there is a strong

assertion of the right to cross-examine opposing witnesses. It is then said:

“Fundamental to this process is the facility to make particular challenges to a witness’s credibility. Given the

high likelihood that an unrestricted right to discredit or impeach witnesses testifying for an opponent would

expose the trial to elaborance of splitting issues and delay, a rule exists which chiefly operates at the cross-

examination stage to restrict the extent and sometimes the nature of credibility challenges against witnesses.

Also more cumbersomely known as the rule governing the finality of answers to collateral questions, the

collateral issue rule provides that when an answer is given by a witness to a collateral question his answer is

final and may not be contradicted by evidence in rebuttal. The rule applies not withstanding that his answer

may be false, although the witness risks penalty for contempt of court and prosecution for perjury.”

As to the identification of what is “collateral” the general rule is that if a matter were such that, in the same case, the cross-

examining party could himself call evidence of a particular matter, that matter is not collateral.

In another leading Irish text, McGrath Evidence (2005) the rule is justified as follows, citing from Rolfe B. in A.G. v. Hitchcock (1847)

1 EXCH. 91:

“The laws of evidence as to what ought and what ought not be received, must be considered as founded on

a sort of comparative consideration of the time to be occupied in examinations of this nature, and the time

which is practicable to bestow upon them. If we lived for a thousand years instead of about sixty or seventy,

and every case were of sufficient importance, it might be possible, and perhaps proper, to throw a light on

matters in which every possible question might be suggested, for the purpose of seeing by such means

whether the whole was unfounded, or what portion of it was not, and to raise every possible enquiry as to

the truths of the statements made. But I do not see how that could be; in fact, mankind find it to be

impossible.”

This justification turns on the practical need to limit the length of litigation and the issues, remote from the issues in question at a

trial, which may be gone into. If a witness is contradicting a party as to something sufficiently relevant that that party could call

evidence on it himself then it is deemed to be of direct relevance and a witness’s answers can be contradicted. But if a party seeks

to contradict a witness on a matter itself irrelevant to the trial except insofar as reflects on the witness’s credibility, he is bound by

the answer of the witness and can take the issue no further. I may say that it appears to me that the rule can also be justified on

the basis that a witness coming to court, perhaps because he is summoned by the public prosecutor, is entitled to the protection of

the Court to ensure that he is not exposed to damaging contradiction or publicity about a matter which happened (if at all) very many

years previously and is irrelevant to the trial, in the sense that the opposing party could not call evidence of it during that trial.

An example of the operation of the rule, which in that case favoured a defence, is from the quite venerable Irish case of R. v. Bourke

(1858) 8 Cox CC 2 - CC 44. This is cited by Mr. McGrath at para. 3.67. A witness was called to give evidence and he pleaded a lack

of competence in English whereupon he was sworn and gave evidence in Irish. On cross-examination he was asked whether he had,

on a recent occasion, spoken in English to two persons who were present in court and were pointed out to the witness. He denied

this, and the two persons were called to contradict him. On appeal, a Court consisting of ten judges held that the contradicting

evidence had been wrongly admitted. Christian J. was of the view that the question of whether the witness could speak English was

“wholly beside and collateral to the issue which the jury had to try”, which was the guilt or innocence of the prisoner.

The issue in the case of Hitchcock, cited above, was whether the witness had been offered a bribe to give false evidence, which

had not been accepted. This was held to be a collateral matter totally irrelevant to the matter in issue.

It will be observed that the matters relied upon as new or newly discovered facts, including that identified in the passage quoted

above as the most important of them, are all collateral matters. That is, they do not directly go to the question of who killed Mr.

Nevin or who had him killed. Instead, they are said to be relevant because they go to the credibility of a witness, William McClean,

who was produced by the prosecution at the trial as one of three men solicited by Mrs. Nevin to kill her husband.

It must be borne in mind that none of these three witnesses were, or were put forward at the trial as being, persons of good

character. All were in one way or another involved with a particular political Party, one had served a lengthy prison sentence and

apparently served it “on the Provo landing” in Portlaoise Prison. McClean, by his own admission was involved in smuggling across the

border, which he did not apparently regard as criminal and apparently in other fraudulent practices as well. It is of course intrinsically

unlikely that someone seeking to employ an assassin would approach a person of known good character.

The only conceivable basis upon which Mr. McClean could have been questioned about whether or not he was the man from the Four

Courts Hotel is that it was relevant to credibility. But because it was a collateral issue, it appears that his answer to any such

question would have been binding on the questioner and could not have been taken further. The purpose of this rule is to stop a trial

which naturally relates to a specific crime at a particular time and place becoming encumbered by perhaps an unlimited number of

quite different issues, for which the other party might or might not be prepared.

Having regard to the wording of the grounds relied upon in this application, the Court wishes to state that there is nothing in the

Garda material which it has inspected, in the “Suspect Antecedent History Form” a photocopy of part of which appeared in Ms.

O’Connor’s newspaper, or in a bundle of more than 140 other such forms produced for the inspection of the Court, which gives the

slightest credence, direct or indirect, express or implied, to the allegation that the solicitees were “State informers” or paid informers

of the gardaí. It is not proposed to discuss or describe these documents any further (save in relation to the “Suspect Antecedent

History Forms” discussed below, because they contain names or identifying details of particular individuals who have no conceivable

connection with the present case. The information about them may be inaccurate, and may be prejudicial to them. But it is certainly

irrelevant.

The “Subversive” theme.

It will be clear from the summary set out above that the proposition that the late Mr. Nevin was in the I.R.A. arose for the first time

in direct examination of Mrs. Nevin when she gave evidence in her own defence. That is to say, she did not say it when under

pressure from hostile cross-examination but in answers to questions from her own counsel.

As was pointed out at the time, without contradiction, this proposition that the late Mr. Nevin was a member of the I.R.A. was never

put, in the cross-examination carried out on Mrs. Nevin’s behalf, to any witness, even to witnesses who themselves had, on the

evidence, some Sinn Féin or I.R.A. connection. This in turn suggests that the allegations she made was unknown to her own counsel

prior to her saying it in open court, because if it formed part of her case it would require to have been put to any witness for the

other side who might have a view upon it. Equally, Mrs. Nevin in giving direct evidence on her own behalf alleged that the witness

William McClean “had plates and that he was in to making £20 notes”. This again was a matter which imperatively required, if it were

to be given in evidence, to be put to Mr. McClean so that he could deal with it but this did not occur.

In cross-examination of Mr. William McClean, specifically on days fourteen and fifteen of the trial, he was questioned by senior

counsel on behalf of Mrs. Nevin about various criminal involvements of his own. These involved convictions for the crime of Deception,

which Mr. McClean said was for purchasing items and paying for them with a cheque which “bounced” and also the “kiting” of

cheques. This line of questioning was all done on the basis of information as to his previous convictions supplied by the prosecution.

He was also questioned about smuggling spirits across the border from Northern Ireland. He said he got the spirits in question from

Holmes Cash and Carry. He said he was able to get into this establishment because he knew someone who worked in the place. He

was asked who this contact was and he said “they knew me from going in and out” and “I didn’t know anybody personally”. He was

then (Day 15, Q. 269) asked the following series of questions:

“Q. Were you getting it from paramilitaries?

A. Sorry?

Q. Were you getting your spirits from paramilitaries?

A. I have no connections with paramilitaries.

Q. Were you getting your spirits from paramilitaries?

A. I said I have no connections with paramilitaries.

Q. I am going to put it to you a third time, were you obtaining those spirits from paramilitaries?

A. No.”

This topic appears to be the sole significance of paramilitaries in the course of the cross-examination and it is clear that the only

context for these questions was the source of the spirits which Mr. McClean was smuggling. However, attention has since focussed

on his statement that he had no connections with paramilitaries, as will be seen below.

Earlier in the cross-examination (Day 15), Q.210, he had been asked whether paramilitaries were involved in smuggling and said that

he could not say. He also said that he did not know what paramilitaries do.

It was not put to him that paramilitaries had played any role in this particular crime, or might have done so, or had reason to do so.

The I.R.A. was brought into the case by Mrs. Nevin in her own direct evidence. She did not in any way link the organisation to the

crime, but left the reference hanging/there without any explicit relevance to the case, or any evidential basis for any relevance,

express or implied.

Indeed, the only express query raised in connection with “paramilitaries” during the cross-examination of Mr. McClean was as to

whether he obtained the sprits which he admitted smuggling into the Republic from paramilitaries. He was also asked if paramilitaries

were involved in smuggling. He denied knowledge of this in strong terms and the matter was not taken any further.

The credibility of Mr. McClean and the other witnesses who gave an account on being suborned by Mrs. Nevin was not presented on

any false basis at the trial. It was clear, and was proved in the course of the prosecution case, that John Jones was a member of the

Sinn Féin Cumann in Finglas and that he ran an Advice Centre there for that party. So also was Mr. Heapes a member of the Sinn Féin

Cumann in Finglas and he had served eight years for armed robbery carried out on behalf of the Provisional I.R.A.. McClean was an

associate of these two men. Not only was that aspect not concealed, it was part of the essential context of his evidence.

It is also necessary to bear in mind that the prosecution case was that Mrs. Nevin had procured the shooting of her husband by a

third party, and not that she had done it herself. Even if, which does not appear, one or other of the three solicitees were suspected,

intuitively or on some factual basis, of having actually shot Mr. Nevin, that fact would not at all exclude, or even tend to exclude, the

guilt of Mrs. Nevin on the basis that she procured the killing. It was however the garda evidence on the hearing of this application,

which was not challenged, that Mr. McClean was not a suspect in the murder of Mr. Nevin and was not arrested in relation to that

crime.

The Suspect Antecedent History Form.

It transpired in evidence that there was indeed a document entitled “Suspect Antecedent History Form” which had been filled out in

respect of William McClean. It may be material to say that it emerged in the course of the hearing that there were a great number of

such forms, over 140 in all, filled out in relation to this investigation. What was, perhaps, somewhat surprising was the consistent

garda evidence as to the lack of status or significance of the form in question. The main garda witness on this matter was Detective

Sergeant Fergus O’Brien who was the principal investigating officer in relation to the murder of Thomas Nevin. Detective Sergeant

O’Brien attended the hearing of this application having been served with a notice of intention to cross-examine by the defence.

Speaking of the “Suspect Antecedent History Form” he said “It was a document that didn’t seem to be … any value laid on it. It was

a worthless document to all intents and purposes. It told nothing really only apart from his name and his address, a couple of his

drinking buddies, it didn’t even outline his previous convictions, that document didn’t”.

He also said:

“It was of no intelligence value whatsoever… it’s a kind of

in-house ad hoc form that wouldn’t carry any weight or value. That would be the way I’d see it. That’s my

own personal opinion on it having been involved in the investigation and involved at that time.”

“… It was a document that was created really … you see, nobody would have known who Willy McClean was

when that would have been created. It was just to kind of get a bit of background or a bit of a handle on

who is Willy McClean. You know, what was he? Really, he was a man who was just into fraud really. That was

his background, fraud.”

It would, I think, have to be conceded that the title “Suspect Antecedent History Form” is a rather portentous one, suggesting a

degree of care in its construction and a degree of significance greater than what Detective Sergeant O’Brien appeared to attach to it.

Nevertheless the Court must record that, having read not merely the form in relation of Mr. McClean but the great number of similar

forms referred to above in respect of other people, that they bear out the account of the Detective Sergeant. Most of the forms

have comparatively little information on them, and feature considerable gaps. Nor were such forms filled only in relation to people who

are suspects. While there are some notations along the lines “cannot be ruled out”, forms of this kind were also filled out, despite the

title, for people who (the completed form makes clear) could not be regarded as suspects for one reason or another and are so

described on the forms, that is described as not being suspects. It is hard to escape the impression that some of the forms were filled

out, in a more or less casual way, simply because a name had come up and it was desired to create some note of who the person in

question was.

Many of the forms contain a list of the associates of the person to whom they relate and in some cases it is noted that some of the

associates are connected with political or subversive organisations or with specific types of crime. In the specific case of William

McClean Detective Sergeant O’Brien said:

“Willy McClean was cheque man, that’s what he was. Most of the guys that he was hanging with and drinking

with, they were all cheque men, that’s what they were. And they were all famous cheque men is what they

were.”

Consistent with this, the form in question under the title “Modus Operandi” noted simply “Fraud”. Dealing with the suggestion that the

Special Detective Unit had carried out surveillance at an address of Mr. McClean, Sergeant O’Brien said ‘monitoring’ is probably a

better word than surveillance. Asked why they were monitoring Mr. McClean the Detective Sergeant said “because he was involved in

crime, it’s what he was involved it, but there might be guys that might be on the periphery of other activity; I don’t know.”

In the course of further cross-examination, the witness’s attention was drawn to correspondence between the State Solicitor’s Office

and Mrs. Nevin’s solicitor and in particular to a letter of the 11th February, 2000. This contained the following statement:

“However, the Garda Síochána did investigate a possibility that William McClean, witness no. 2 in the Book of

Evidence, murdered the deceased at the instigation of your client. In the course of their enquiries, they

obtained a statement from [a named woman with a stated address]. This statement was already furnished to

you and is enclosed within.”

Counsel for Mrs. Nevin then put it to the Detective Sergeant that the letter “does seem to suggest that Mr. McClean was

investigated as were others in relation to the possibility that they had carried out this murder?” The Detective Sergeant answered:

“Well that would be one interpretation of it, but it wouldn’t be the correct interpretation.”

Counsel said “I see?”.

The Detective Sergeant answered “Do you want me to elaborate?”.

After a pause, the Court asked “Do you want the witness to elaborate?”.

Counsel replied “No, I don’t, I don’t”.

No further light was thrown on the matter.

Conclusion on forms.

Having considered not only the form which had come into possession of Ms. Niamh O’Connor, journalist, and been published by her in a

tabloid newspaper, but more than 140 other such forms completed in the course of this investigation, the Court has come to the

following conclusions about them:

(a) They do not in any way displace Detective Sergeant O’Brien’s account of the forms as having been created in a relatively casual

fashion and in particular of not relating, either necessarily or exclusively, to persons who are suspects for the murder of Thomas

Nevin.

(b) On the contrary, the forms when considered as a whole tend to bear out what the Detective Sergeant said, in particular that

such forms were filled out to deal with a person who came up during Garda enquiries and would have been unknown, or only very

vaguely known, to many of those engaged in the investigation.

(c) The forms did not relate only to suspects and indeed had been filled out in respect of certain persons who are categorically said

not to be suspects.

(d) The forms listed, in most cases, the known associates of the persons to whom they related but did not in general link the person

about whom the form was compiled to the criminal or other nefarious activities of their associates. Certainly, there was absolutely no

such linkage in the case of William McClean either to crime or to subversive activity. As Sergeant O’Brien pointed out, in a phrase

quoted above, although McClean was engaged in crime in the form of fraud, some of his associates might be “guys that might be on

the periphery of other activity; I don’t know”. This point is indeed an obvious one: being an associate of a person in the sense of a

regular drinking companion is not enough, either legally or logically, to suggest that the associate is connected with all of the drinking

companion’s activities.

(e) None of the forms in question is, in and of itself, of any evidential effect: that is to say they prove nothing. Information contained

in them is often clearly hearsay or opinion. Certainly that is the case in relation to the form regarding William McClean. In the course

of the trial, the learned trial judge indicated that disclosure should be limited to facts which are relevant to the issues in the trial and

did not extend to opinion or speculation. As this Court has already held on the appeal, that was a perfectly proper approach and, we

would add, very necessary for the protection of people who might have a very tenuous or innocent association with a person who

would come to garda attention.

(f) There is nothing in the form in relation to William McClean to rival in specificity the information already disclosed about him during

the course of evidence at the trial which included details of previous convictions and associates in the 1990s. There is nothing to

contradict his account of where he got the spirits he was involved in trading or to establish him either as a “State informer” or a paid

informer or as a member of an unlawful organisation.

(g) It is quite clear that each of the three solicitee witnesses were acquainted with each other and, at least to that extent

“connected” with each other. It is equally clear that each of them, in different ways, was a person of dubious character but none in

that “connection”, nor any other known association, does more than bear out what was already known about these men, by

disclosure or otherwise. A slight acquaintance with a fraudster or a robber does not make one a person connected to fraud or

robbery.

Any major investigation which is conducted by a large number of people will generate documentation. Inevitably, much of the

documentation will relate to lines of investigation which, in the event, simply run into the sand, to persons considered but eliminated,

to suggestions or speculations as to what might be a useful line of inquiry, and in general to the working papers and cogitations of

those engaged in a work in progress. It is clearly most important that investigators be allowed to exchange such material with each

other. The fact that a particular line of enquiry leads nowhere may of course be of the greatest importance in excluding innocent

people from the inquiries. Moreover, people engaged in a large co-operative enterprise must be allowed to exchange thoughts and

“hunches” with each other as well as propositions which could be proved to the legal standard necessary in a court of law.

It would be very contrary to the public interest, and would tend to handicap any major police inquiry, if documents of the sort

mentioned above were required to be freely disclosed. Equally, it would be clearly outrageous, and for exactly the same reasons, if

the working papers of the defence lawyers, or of experts or investigators employed by them, had to be disclosed to the prosecution.

All of these considerations were part of what led to the learned trial judge’s conclusion on disclosability, summarised above. Apart

from that, the fact is that the “Suspect Antecedent History Form” which someone thought fit to put in the hands of the tabloid press

with a view to ensuring its publication, simply does not live up to its billing. It is not a form related to “suspects”, despite its title and

this is demonstrated by the fact that such form has been filled out in respect of people who are clearly not suspects. It gives rise to

no reasonable possibility that there might have been a miscarriage of justice in this case nor, having regard to the totality of evidence

in this case, can it be regarded as such as might have raised a reasonable doubt in the minds of the jury.

The material relating to the alleged presence of William McClean in the Four Courts Hotel in May, 1974, some thirty-six years ago now,

and more than a quarter of a century before the trial, is simply too remote to meet the criteria for significant newly discovered facts.

It is remote not only chronologically, but in terms of any connection to the issues which arose at the trial. It is important in this

context to bear in mind what is said earlier in this judgment about the legal impossibility of contradicting a witness with evidence on

matters not directly related to the trial. It is also important to bear in mind that sentiments ascribed to third parties, or statements of

opinion, do not prove themselves but have to be established by the persons who can speak directly of them. The class of persons

who can realistically be approached with a view to seeing if he or she will undertake a murder for money is a limited one and by

definition involves people of the most dubious repute. The poor characters of the subornees produced in this case was in no way

concealed and seems to have been put to those witnesses in cross-examination in every particular which the law of evidence allows.

Vagueness.

It must, indeed, be recorded that the case which was made by the applicant was in certain important particulars very vague. Thus,

at para. 8 of the “Statement of Grounds”, quoted above it states that:

“Even if the said newly discovered facts were not contained in the said files, then they were contained in

other documents in the possession of the State or an arm of the State and these documents should have

been disclosed to the defence.”

In relation to the witness in whom most of the present application focussed, William McClean, it is said in paragraph 21 of an affidavit

sworn on behalf of the applicant on the 13th February, 2008, that “it has been said of McClean that he was a Special Branch

informant…” and, at para. 30 that the applicant’s solicitor has been “informed by a high level journalist that the three main State

witnesses in the trial herein were high level State informers at the time of the trial herein.”

This is hearsay of the rankest sort, vague in the extreme and simply irrelevant to the issues on this application.

In relation to such claims, the Court finds not the least support for them in the documents which it has examined and notes what was

said by the Court of Criminal Appeal in the Applicant’s appeal against her conviction:

“This Court was given the opportunity of examining the Special Branch files in order to reach its own

conclusions as to whether they could have been relevant in any way to the applicant’s defence. This Court’s

examination of the files was carried out with the benefit of having read the transcript of the entire trial and

therefore in the light of evidence given by the applicant. This Court has carefully and thoroughly examined

each file in question and is completely satisfied that there is nothing contained therein that could in any way

have assisted the applicant’s defence either directly or indirectly or by leading to other information that might

be of assistance in that regard. Therefore there is no basis for making any order of disclosure as sought.”

This Court agrees with that expression and also with the statement of the learned trial judge that she had rejected the applicant’s

application for disclosure of the documents disclosed to the trial court “… basically because of lack of relevancy”. That is the most

fundamental rationale of this judgment as well.

Seeking an alibi.

Another matter relied upon at the hearing of this application is best described as the “alibi” incident.

According to Mrs. Nevin’s solicitor, a “high level journalist” introduced her to a man called T., who owned an entertainment venue. He

sometimes employed a man called C. in a security capacity. T. told the solicitor that a named guard contacted him and asked him if C.

had been working in his premises on the 18th March, 1996. C. told the guard that he certainly had not been, because his premises

were never opened on the day after a bank holiday.

According to T., he was contacted a little later by C. himself who asked to meet him. He met him in a public house and in the

presence of a number of other men including Mr. Heapes, a witness in this case. C. said he needed an alibi for the evening in

question, as a favour. T. said it was too late because he had already told the guards that the premises were not open at the relevant

time. C. suggested that he might tell them that he had looked up his diary and now knew that there was a private party on the night

in question. T. said that he was afraid of C. and the men with him and kept his options open by saying that he would see what would

happen if the gardaí got back to him.

As mentioned several times above, the prosecution case at all times was that the applicant had procured someone to murder her

husband, not that she had physically done so herself. It is not at all clear in what way the evidence of Mr. T., taken at its height,

might be regarded as weakening, or creating a reasonable doubt about, the prosecution case as actually made. It does not appear

capable of doing so.

Even if one considers that Mr. T.’s evidence established a link between C. and Mr. Heapes, that would not be a surprising matter and

would not be one capable of casting doubt upon the prosecution case. The person who shot Tom Nevin was never apprehended or

charged and is presumably still at large. No doubt there are circumstances of suspicion attaching to the actual killer, and perhaps to

others who did not in fact kill Mr. Nevin. The gardaí, as they were bound to do, considered various suspects, and took certain steps

and made certain enquiries about them, but without succeeding in building a criminal case against anyone. There is no logic in relying

upon the steps taken by the gardaí to find the actual shooter and suggesting that they, or a suspect’s reaction to that process, in

some way casts doubt on the case against Mrs. Nevin. It does not do so when that case is properly understood. Like so many of the

other matters mentioned in the course of the hearing, this matter is simply irrelevant.

The learned trial judge, at the conclusion of the trial, expressed her view that the applicant here had her husband assassinated and

had then attempted to assassinate his character. This Court reiterates those views.

This application will be dismissed.