THE COURT OF APPEAL
[Appeal No. 190CPA/10]
Birmingham J.
Mahon J.
Edwards J.
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPLICANT
JUDGMENT of the Court delivered by Birmingham J. on the 18th day of April 2016
1. On 26th June, 1996, Ms. Veronica Guerin was murdered on the Naas Road, at a time when the car that she was driving was stopped at traffic lights. On that occasion, she was returning to Dublin from Naas District Court where she had dealt with a speeding summons. While stationary at the lights, a motorcycle pulled up alongside her vehicle. The pillion passenger discharged a number of shots into the car, fatally wounding Ms. Guerin.
2. On 2nd June, 1999, the applicant stood trial in the Special Criminal Court charged with the murder of Ms. Guerin. After a 31-day trial, he was convicted of murder along with other offences involving firearms and drugs. The case the prosecution made against him was that he was the driver of the motorcycle from which the shots were discharged. At trial, Mr. Meehan was represented by Mr. John McCrudden Q.C., Mr. Anthony Sammon S.C. and Mr. Michael O’Higgins, Barrister-at-Law instructed by Michael E. Hanahoe Solicitors.
3. Sixteen and a half years after his conviction, and nineteen and a half years after the murder was committed, the applicant now seeks pursuant to s. 2 of the Criminal Procedure Act 1993 to set his conviction aside as a miscarriage of justice. The substantive question raised in this application is whether evidence used in the subsequent trial of another individual in respect of the same offence was properly disclosed to the applicant’s legal team and, if so, whether the applicant’s legal team failed to fully appreciate its significance such that it constitutes new or newly discovered facts for the purposes of a s.2 miscarriage of justice application.
4. To put the current application in context, it is necessary to say something about the chronology of events that has unfolded.
The Chronology of Events
5. On 1st November, 1999, an appeal against conviction and sentence was lodged by the applicant.
6. On 15th March, 2001, one John Gilligan was acquitted of a murder charge that he had faced, arising from the events of the 26th June, 1996, on the Naas road, but was convicted of drugs offences. Mr. Gilligan was tried on those charges before a differently constituted Special Criminal Court. The prosecution case against Mr. Gilligan was not that he had been present and played any part at the murder scene on the Naas Road, in fact he had been in Amsterdam on the day of the murder, but rather that he was the gang leader who had ordered the shooting of Ms. Guerin. Both at the 1999 trial of the applicant and the 2001 trial of John Gilligan, one Russell Warren was a significant prosecution witness. Mr. Warren had been a member of the gang led by John Gilligan and, at the time of both trials, was a participant in the Witness Protection Programme.
7. By a motion dated 20th May, 2002, the applicant sought liberty to adduce fresh evidence at his appeal, namely the transcripts from the trial of John Gilligan and also the transcripts of the trial of Paul Ward and to expand the grounds of appeal. Mr. Ward had also been convicted by a division of the Special Criminal Court (The People (DPP) v. Paul Ward (Unreported, Special Criminal Court, 27th November, 1998)), once again differently constituted to that of the court of trial in the present case, but that conviction was overturned on appeal (The People (DPP) v. Paul Ward (Unreported, Court of Criminal Appeal, 22nd March, 2002)).
8. On 7th February, 2003, written submissions on behalf of the applicant were filed. Of note is that these written submissions anticipated, to a very significant extent, the arguments that have been canvassed in the course of the current application. In particular, the submissions contain significant references to aspects of the evidence that was given at the Gilligan trial.
9. On 23rd May, 2003, written submissions on behalf of the DPP were filed.
10. On 3rd February, 2004, there was an application on behalf of Mr. Meehan to vacate the hearing date of 23rd March, 2004, which had been assigned to the appeal on the basis that a certificate pursuant to s. 29 of the Courts of Justice Act 1924 had issued in the Gilligan case. Mr. Meehan’s appeal was adjourned generally until after the conclusion of this s. 29 application.
11. On 23rd November, 2005, the Supreme Court delivered judgment in the case of The People (DPP) v. Gilligan [2006] 1 IR 107, dismissing the appeal against conviction. Of note is that the Supreme Court, per Denham J., indicated that it was not in agreement with the approach taken by the court of trial with regards to the issue of corroboration. In effect, the Supreme Court judgment appears to doubt the correctness of the basis on which Mr. Gilligan was acquitted of the murder charge.
12. On 27th - 28th June, 2006, the Court of Criminal Appeal heard Mr. Meehan’s appeal. At the outset, the application to adduce the Gilligan and Ward transcripts by way of additional evidence and expand the grounds of appeal was withdrawn.
13. On 24th July, 2006, the Court of Criminal Appeal delivered judgment on Mr. Meehan’s appeal against conviction. The Court referred at p. 472 of the reported judgment, which is to be found at The People (DPP) v. Meehan [2006] 3 IR 468, to the fact that the delay in bringing on the appeal was undoubtedly connected with the various appeals brought by John Gilligan, the leader of the criminal gang of which Mr. Meehan was a member. On the hearing of the appeal, Mr. Meehan was represented by Mr. Patrick Gageby S.C., Mr. Conor Devalley S.C. (with them, Mr. Cian Ferriter, Barrister-at-Law) instructed by John J. Rice & Co. Solicitors of Belfast. Following the determination of the appeal, counsel for Mr. Meehan indicated to the Court that the question of applying for a s. 29 certificate would be considered.
14. On 2nd November, 2006, the appeal was listed for mention before Kearns J., in a situation where the sentence aspect of the appeal remained outstanding. On this occasion, Mr. Greg O’Neill, Solicitor, came on record for the applicant in place of John J. Rice & Co.
15. On 10th December, 2007, the case appeared in a list to fix dates. The Court was informed that the applicant intended to bring an application pursuant to s. 2 of the Criminal Procedure Act 1993. The matter had, in the meantime, appeared in various mention lists and lists to fix dates.
16. In April, July and October 2008, the matter once again appeared in various case management lists and lists to fix dates.
17. On 22nd June, 2010, the matter once more appeared in a case management list with a view to ascertaining the up to date position in relation to the sentence aspect which was outstanding and also whether a s. 2 application was being made. On 13th July, 2010, a statement grounding a s. 2 application as well as a Statement of Grounds was served on the DPP. The Statement of Grounds refers to the evidence given by a number of witnesses during the Gilligan trial, namely Marion Finnegan, Michael Hickey, Victor Poleon, Bernadine McCabe, Fergus McCarthy, Philip Pearson, John D’Arcy, Sarah Dever, Eamon Brady and Martin Ely. The Statement of Grounds complains that, in each case, documents relating to the witness were omitted from the documents that were served, pursuant to the Rules of the Special Criminal Court; that those documents were not disclosed; and that the court of trial and the applicant were thereby mislead.
18. The Statement of Grounds makes reference to the evidence of telephone records adduced at the trial of John Gilligan which, it is said, did not bear out or support, but in fact undermined, the evidence of Russell Warren as to the telephone contact which he had with the applicant on 26th June, 1996, the day of the murder.
19. The Statement of Grounds also refers to what is described as substantial non-disclosure of pertinent and relevant material which amounted to a grave irregularity in the prosecution and trial of the applicant and constituted a violation of his constitutional entitlement to the observance of fair procedures in the proceedings against him and in his trial.
20. Notwithstanding the assertions made in relation to non-disclosure, made both in general terms and with specific reference to individual witnesses, it does not seem, at this stage, to be in dispute that there was no non-disclosure, but that full disclosure was made. The Court finds it disturbing that such allegations of non disclosure could have been made without any factual basis for them, and it would seem without any real inquiry as to whether there had been material non disclosure or whether proper disclosure had in fact been made.
21. By Notice of Motion dated 5th July, 2011, the DPP brought a motion purportedly seeking an order pursuant to s. 5 of the Criminal Procedure Act 1993, dismissing the application. This gave rise to a flurry of affidavits; an affidavit of Padraic Taylor, the solicitor in the Office of the Director of Public Prosecutions having responsibility for Court of Criminal Appeal files, including the Meehan file, two affidavits from Mr. Brian Meehan, three affidavits from Ms. Síuna Bartels, Solicitor, who had taken on the representation of Mr. Meehan from Mr. Greg O’Neill, Solicitor, as well as an affidavit of Garda Inspector Noel Browne, who had been involved in the murder investigation and, in particular, in the process of disclosure of documentation to the legal representatives of Brian Meehan.
22. On 24th January 2014, the Court of Criminal Appeal, presided over by Murray J., delivered its ruling which refused to dismiss summarily the applicant’s claim.
The Present Application
23. Section 2 of the Criminal Procedure Act 1993 is at the heart of the current application. So far as material, it provides as follows:
“2. (1) A person—
(a) who has been convicted of an offence either—
(i) on indictment, or
(ii) after signing a plea of guilty and being sent forward for sentence under section 13 (2) (b) of the Criminal Procedure Act, 1967 , 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 or that the sentence imposed is excessive, may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence.
(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence.
(3) In subsection (1) (b) 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.
(4) The reference in subsection (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.”
24. The section focuses attention on whether the applicant is in a position to identify one or more new or newly discovered facts, as those terms are defined in the section which would lead to the Court quashing the conviction.
25. Before looking at the evidence to which the applicant points, it is appropriate to note that the system of disclosure that operated in 1999 and 2001 differed in certain respects from the system that is now in place. Then, as now, the obligation on the prosecution to disclose material that would assist the accused in mounting a defence or in undermining the prosecution case was recognised. However, whereas today the practice is for the prosecution to copy and serve on the defence unused material by way of disclosure, at that time the practice was for the defence lawyers to be given an opportunity to inspect the material at the investigation H.Q. and to request the gardaí to copy and provide documents of interest. As might be expected, the Veronica Guerin murder investigation generated an enormous amount of documentation which was kept at Lucan garda station, where the incident room was based. In the case of both the Meehan and Gilligan trials, the defence legal teams were facilitated in visiting the station, reading the documents kept there and obtaining copies of documents of interest.
The Finnegan/Kearney/Hickey Evidence
26. The first issue raised by the applicant relates to the evidence of Marion Finnegan in the course of the Gilligan trial; she had also given evidence at the Meehan trial. Linked to her evidence in the Gilligan trial was the evidence of Sergeant Kearney of Lucan garda station. Counsel for Mr. Meehan, Mr. Hugh Hartnett S.C., has made it clear that this is the core of the present application.
27. To understand the point that is being made here, it is necessary to recall that Russell Warren was a key prosecution witness at both trials, and the trial court in the Meehan case relied substantially on the evidence of Russell Warren in order to convict Brian Meehan. In addition to the evidence of this witness, there was a very considerable volume of other evidence linking the applicant to the murder. Dealing with the evidence of Russell Warren, the Meehan trial court commented as follows in the course of its ruling:-
“As has already been said, the Court approaches the evidence of Russell Warren with extreme caution. It recognises that doubts have been cast upon his account of the circumstances in which the motorcycle came to be stolen, and indeed, as counsel for the defence has put it, it seems unlikely that it was happenstance the motorcycle came to be stolen at the very time when it became useful in carrying out this crime. Moreover, counsel suggests forcibly to the witness that he was an integral part of the murder plan and was in fact deep into this plan rather than an innocent outsider of whom the gang was making use. While these criticisms may well be valid, and if so, give additional reason to approach the witness’s evidence with caution, the Court has recognised two pieces of evidence, one of which is extremely supportive of this witness’s evidence, and the other corroborates it. The first is the evidence of Mrs. Maureen (sic) Finnegan. This lady says, and the Court unreservedly accepts, that she visited the town of Naas on the morning of 26th June, 1996, and, while there, observed a man dressed in a green jacket with his shirt collars out over the reveres of his jacket, carrying an old-type large mobile phone. She observed his conduct on the occasion and observed him peering around a corner of the street using his mobile phone. The Court is satisfied beyond all reasonable doubt that this person that she saw was Russell Warren. The defence have submitted that it cannot have been him because Russell Warren never got on to the courthouse steps where Mrs. Finnegan says she saw him, or that it could have been the second lookout man who was stationed on the roof by the group involved in this crime. The Court does not accept that these matters materially affect the conclusion that the person observed by Mrs. Finnegan was Russell Warren. The evidence which he has given the Court of what he did when he was in Naas fits in precisely with the evidence which Mrs. Finnegan has given, in the sense that on seeing the red sports car, he made a telephone call and then went back to the van which he had parked on the Newbridge Road. In the Court’s view, it is beyond the realms of coincidence that there would have been two people in the Main Street in Naas at that very time behaving in precisely the same way. The Court is satisfied beyond all reasonable doubt that the man Mrs. Finnegan saw was Russell Warren.”
28. At trial, the evidence of Mr. Warren was that he was in Naas on 26th June, 1996, on the instruction of the applicant; that he was in the area around the courthouse; that he was looking out for and located the murder victim’s car, a red sports car; and that he reported to the applicant on the movements of the car. It was the defence case that Mr. Warren was never in Naas on the day of the murder, and therefore he could not have located Ms. Guerin’s car or reported on its movements, though there was some equivocation at least as to whether it was the defence case that he was, or was not, on the Naas Road. It may be said that the defence sought to ride two horses. On the one hand, it was suggested that Mr. Warren was not in Naas, and so was not in a position to give evidence against the applicant or indeed anybody else, but on the other hand it was suggested that he was centrally involved in the conspiracy to murder.
29. During the Meehan trial, Ms. Marion Finnegan gave evidence of having been in the vicinity of the courthouse in Naas on the day of the murder and of having observed the actions of a man outside the courthouse, which were such as to cause her to make contact with the gardaí when she later learned about the murder. The trial court was satisfied that the person she saw was Russell Warren, taking the view that it would be too much of a coincidence for there to have been another individual in the area at the time acting in the same way as Russell Warren said that he had acted. On behalf of Mr. Meehan, it is said that the trial court erred in taking the view that Mr. Warren’s account of his actions and Ms. Finnegan’s evidence of what she observed tallied to a significant extent. The Court is quite satisfied that this is not a point that can be entertained at this stage. The defence at trial had Mr. Warren’s account of his activities as well as Ms. Finnegan’s account of her observations, and it was open to the defence to make such use of all the material as they wished. This Court recognises that it was only late in the trial that the potential significance of Ms. Finnegan emerged, and it became evident that the Court was attaching greater attention to the testimony of Ms. Finnegan than had been contended for by either the prosecution or defence up to that point. However, it was open to both sides to make such submissions as they wished on the evidence, and indeed to apply to examine or cross-examine further on this topic. The descriptions of what Ms. Finnegan saw and of what Mr. Warren says he did remain unaltered, and there is nothing here by way of a new or newly discovered fact.
30. The more significant aspect in the context of the current application is that the defence now seek to place emphasis on the fact that Ms. Finnegan attended an identification parade in a garda station where Mr. Warren stood on the parade, but she failed to pick him out. The defence say that this is highly significant and that if the Meehan court of trial was aware of the unsuccessful identification effort, it could not have concluded that the person that Ms. Finnegan saw in Naas was Russell Warren. The identification parade in question was held on 2nd October, 1996, and was supervised by Sergeant Kearney of Lucan garda station.
31. The defence contend that linked to the issue relating to Ms. Finnegan and the parades provided by Sergeant Kearney is the evidence of Michael Hickey. At trial, Ms. Finnegan stated that the person whose actions she came to regard as potentially significant was wearing a “striking green-coloured jacket, strong green-coloured jacket, the colour coming out of the jacket”. On the day following the murder, gardaí took a statement from Mr. Hickey who was a businessman and who had been in Naas on the morning of the murder because he was required to appear before Naas District Court in relation to a speeding summons. In his statement to gardaí, Mr. Hickey described what he was wearing, mentioning in particular a lime-green jacket. The defence say that the person observed by Ms. Finnegan may have been Mr. Hickey, who was in Naas for entirely legitimate reasons and had nothing whatever to do with the plot to murder Ms. Guerin.
32. It is necessary to see to what extent the Finnegan/Kearney/Hickey issues involve a new or newly discovered fact, or facts. Ms. Finnegan was called to give evidence at the Meehan trial and was examined and cross-examined. However, Sergeant Kearney and Mr. Hickey were not witnesses during the Meehan trial. It may be noted that Russell Warren was among those arrested and detained following the murder. The custody records of Russell Warren created during his detention were disclosed to the applicant’s legal representatives. These records included an entry dated 2nd October, 1996, as follows:-
33. The custody records are also of interest in that they show that when Mr. Warren was processed on his arrival in the garda station that he requested that “M. Hanahoe Solicitors" be contacted. The custody records show that this was done on 30th September, 1996, at 10.20 p.m. There is then an entry at 10.23 p.m. which records that “M. Hanahoe” wished to speak to Russell Warren, that Mr. Warren was brought to the Public Office by Garda McCabe and that Russell Warren hung up on “Mr. Hanahoe” saying that it was not “M. Hanahoe.” An entry on 1st October, 1996, records that Mr. Warren was visited by “solicitor Mr. Hanahoe” between 10.25 p.m. and 10.40 p.m. Then, an entry on 2nd October, 1996, at 6.00 p.m. records that Mr. Warren was taken from his cell to the Public Office for the purpose of two phone calls to “solicitor Michael Hanahoe in relation to the holding of an identification parade.” Mr. Warren was taken back from the Public Office at 6.10 p.m. We have already seen the entries at 8.43 p.m. and 8.50 p.m.
34. The significance of the involvement of Mr. Hanahoe with the detention of Mr. Warren and the fact that he was consulted in relation to the identification parade arises from the fact that M. Hanahoe Solicitors represented Mr. Meehan at trial.
35. So far as Sergeant Kearney is concerned, records that have been retained by the gardaí establish that his statement (Statement 921) was made available to Mr. Meehan’s solicitors in May, 1999. The records relating to the disclosure process held by gardaí also record that Lever Arch files Nos. 11 and 12 (Statements 901 to 1000) were examined by Mr. Hanahoe at the Special Criminal Court on 10th June, 1999. Context for this inspection is provided by the fact that in the course of a visit to Lucan garda station on 27th May, 1999, Mr. Michael Hanahoe indicated that counsel had instructed the defence to go through all of the statements at Lucan garda station again; this was to be done in the coming weeks during the course of the trial. Records are also available in relation to requests for copies of statements and documents including requests made in the course of a visit to Lucan garda station by Mr. O’Higgins B.L. on 5th June, 1999, who requested copies of a number of witness statements.
36. A document entitled ‘Annex 4 - DPP v. Brian Meehan, Disclosure, Alphabetical List’ contains a typed list in alphabetical order of the witnesses whose statements were disclosed. At this stage, it may be noted that Sergeant Michael Kearney appears at Statement 921; Mr. Michael Hickey at Statement 101; Ms. Bernadine McCabe at Statement 198; Mr. Victor Poleon at Statement 1; Mr. Fergus McCarthy at Statement 20; Philip Pearson at Statements 19 and 591; John D’Arcy at Statement 9; Sarah Dever at Statement 15; Eamon Brady at Statement 93 and Martin Ely at Statement 167. These are all persons whose statements feature in the current application. The records relating to the visit by Mr. O’Higgins B.L. on 5th June, 1999, indicate that among the statements copies of which were sought were Sarah Dever (15), Philip Pearson (19), Fergus McCarthy (20), Eamon Brady (93), Michael Hickey (101) and Bernadine McCabe (198).
37. The application was presented at the outset as a case of grave non-disclosure, but it is now clear that not only was there no non-disclosure, but that prior to and during the trial of Mr. Meehan, the defence focused on certain statements now said to be of significance.
38. In a situation where it was not possible to present a case on the basis of non-disclosure, the case has evolved into one that criticises the performance of Mr. Meehan’s lawyers at the time. So far as the trial is concerned, the criticism is restrained, put in effect on the basis that “these things happen”. However, where a case involves criticism of the original legal team, one would have expected that there would have been affidavits from all the lawyers who acted, but in fact only one affidavit has been provided, that from Mr. Michael O’Higgins S.C. Mr. O’Higgins was Junior Counsel at the trial of Mr. Meehan and was Senior Counsel for the defence at the trial of John Gilligan. Mr. O’Higgins comments that memory fades with time and that his recollection is therefore very tentative. He says that drivers or passengers who were in the vicinity of the murder were not called at the Meehan trial. He cannot say at this remove whether these documents were noted during the disclosure inspection, he thinks that it is very unlikely because, if they had been, he would have expected that they would have been the subject of discussion, and he does not have a memory of such a discussion. His recollection is that when he read the documents in the course of preparation for the Gilligan trial, that he regarded the information as new, at least new to him. He adds that the documentation may have been read by other members of the legal team during the Meehan disclosure process, but he does not know that and cannot comment.
39. The Court is of the view at this stage that a new fact or newly discovered fact in relation to the Finnegan/Hickey issue has not been identified. There is a further reason why the Court does not believe that there is a new or newly discovered fact in issue, which relate to what occurred in the Court of Criminal Appeal.
The Proceedings before the Court of Criminal Appeal
40. As we will see, all the material that is now in issue was available and known to be available at the time of the appeal against conviction to the Court of Criminal Appeal, but that information was not utilised. The significance of that will be considered presently, but at this stage, of interest is the fact that the circumstances in which the decision was taken not to proceed with the material at the appeal stage have been addressed by both the applicant, Mr. Meehan, and Mr. Patrick Gageby S.C., who led the defence team on the appeal. Again, only one affidavit from the appeal legal team has been provided. Surprisingly, given the contents of an affidavit sworn by Mr. Meehan, no affidavit has been provided by the solicitor who acted on the appeal.
41. In the course of an affidavit sworn on 9th December, 2011, Mr. Meehan says that it was never his wish that the motion to adduce new evidence in the Court of Criminal Appeal should have been dropped. He says that a few days before the appeal was listed for hearing on 27th June, 2006, he was visited by Mr. Gageby S.C. and other members of his legal team; that Mr. Gageby informed him that he could not adduce the new evidence despite the fact that the motion was before the Court; and that Mr. Gageby informed him that detailed legal submissions had been prepared. He claims that Mr. Gageby told him that a fairly recent decision of the Supreme Court in The People (DPP) v. Mark Cronin (No. 2) [2006] 4 IR 329, which Mr. Gageby referred to as the Cronin decision, precluded him from relying upon the new material that had come to light from the disclosure made to John Gilligan and the evidence adduced at the Gilligan trial. He says that on the morning of the appeal he was again told by Mr. Gageby that the law did not permit him to advance the new material because of the Cronin decision. Mr. Meehan also refers to the fact that he says that he wrote a letter to his solicitor, Mr. Joseph Rice, expressing deep disappointment that the lawyers had not brought the new material to the attention of the Court as it was clearly the strongest part of the appeal. He exhibits a letter dated 25th September, 2006, but does not say what response, if any, he received to this letter. Mr. Rice has not provided an affidavit to say whether he received any such letter, and if he did, how he responded. An affidavit of Ms. Bartels, Mr. Meehan’s current solicitor, dated 17th November, 2015, referred to contact with Mr. Rice and exhibits a letter dated 12th November, 2015, to Mr. Rice in respect of this s. 2 application, which was listed for hearing on 19th and 20th November, 2015. That letter, in its final paragraph, refers to the fact that Mr. Gageby suggested that an instruction not to proceed with the appeal [presumably a reference to the motion to adduce new evidence] was given in writing, but that Mr. Meehan utterly refutes this. Mr. Rice is asked whether he can assist in that regard. Mr. Rice responded with a very brief email saying that he had spoken to a solicitor who had worked on the case and that, similarly, he (Mr. Rice) had no real recollection of the details of the consultation on “12th June, 1999,” Given that judgment in the trial was delivered on 29th July, 1999, and John J. Rice & Co Solicitors were only engaged by Mr. Meehan subsequent thereto, it is not clear to what consultation reference is being made here. However it seems likely from the context of the correspondence that it may be the consultation that Mr. Meehan (at para. 15 of his affidavit of 9th December, 2011) says took place a few days before the appeal hearing (27th June, 2006) and thus should be 12th June, 2006.
42. That the memories of all involved with the trial and appeal have faded with the passage of time is entirely understandable. However, one might have hoped that Mr. Rice would have been in a position to say that it was his practice to take written instructions from clients in relation to key decisions, if that was indeed the case, or that he had no recollection of ever asking a client to provide written confirmation of instructions, if that was the situation, or to otherwise indicate what his approach to such issues was. Having one’s instructions terminated in one of the highest profile murder cases in the history of the State is not something that would be easily forgotten, even with the passage of time.
43. Mr. Gageby, in his affidavit, says that the decision to advise Mr. Meehan not to proceed with the motion to adduce additional evidence was influenced by the Supreme Court decision in Cronin, that there may also have been other reasons why the decision was made and refers to the fact that he opined in correspondence that he thought the grounds were unstateable. Mr. Gageby says that all decisions during the appeal were taken by Mr. Meehan following advice and that if Mr. Meehan had insisted on the additional grounds being run, they would have been run. He says that he strongly refutes any suggestion that either he or Mr. Ferriter would have misled Mr. Meehan on the day of his appeal or on any other occasion. Mr. Gageby says that he did not act in the way complained of and that the decision to withdraw the additional evidence grounds of the appeal was made in consultation with the client.
44. In the final paragraph of his affidavit, Mr. Gageby says that the decision to withdraw the motion was certainly not a tactical decision taken with a view to litigating the matter afresh or providing some form of fallback. This Court, without equivocation, accepts what Mr. Gageby has to say in that regard.
45. It is noteworthy that both Mr. Meehan and Mr. Gageby indicate that the Cronin decision was in people’s minds at the time that the decision not to proceed with the motion was taken. Counsel on behalf of Mr. Meehan, on the present application, suggest that there was a misunderstanding on the part of the appeal lawyers as to the significance and relevance of the Cronin decision.
46. The Court finds the suggestion that the defence team were operating on a mistaken understanding of the significance of Cronin, which had only recently been delivered, entirely unconvincing. In relation to the observation that Cronin had only recently been delivered, with the implied suggestion that there had been insufficient time to absorb the significance of the decision, the Court will point out that the Supreme Court delivered its judgment in Cronin on 3rd March, 2006, while the motion was withdrawn on 28th June, 2006, i.e. more than three months later. Moreover, the Supreme Court decision in Cronin was no bolt from the blue. The decision upheld the approach of the Court of Criminal Appeal in that case, reported in The People (DPP) v. Cronin [2003] 3 I.R. 377, and was a re-statement of the long established jurisprudence of the Court of Criminal Appeal. In his appeal, Mr. Meehan was represented by counsel who were experienced and able. The leader of the defence team was particularly able, experienced and highly regarded and the Court regards it as inconceivable that such a team, so led, could have fundamentally misunderstood the situation.
47. It is worth bearing in mind the factual background to Cronin. There, the applicant had been convicted of murdering a woman in a nightclub by shooting her. At trial, the defence case was that Mr. Cronin did not have a gun and still less that he had discharged one. Three years post-conviction, and following a change of legal team, an attempt was made for the first time to argue on appeal that the judge’s charge at trial was deficient in that it did not put before the jury the question of an accidental discharge of the firearm, and linked to that a manslaughter outcome.
48. The legal submissions filed in relation to the motion in this case had made a claim of substantial, indeed gross non-disclosure. Cronin could have no relevance in a case of gross non-disclosure which was only discovered post-trial. If Cronin had any relevance to how an appeal could be conducted, it could only be because of decisions taken and strategies pursued at trial. At this time remove, it is not possible to identify the matters that occurred at trial which brought into relevance the Cronin case, but the Court is not persuaded that any new or newly discovered fact has been identified. Whatever the position in relation to the trial may be, the position in relation to the appeal to the Court of Criminal Appeal could hardly be clearer. Written submissions dated 5th February, 2003, running to some 30 pages as well as an appendix were delivered. Pages 4 to 19 of those submissions deal with the evidence of Russell Warren. Paragraphs 22 to 39 deal with what is said to be an error on the part of the trial court in relying on the evidence of Ms. Finnegan. At para. 33, it is submitted that the details given by Ms. Finnegan did not correspond with Russell Warren’s evidence, which gave a step-by-step account of his movements in Naas. At para. 35, reference is made to a submission that the person wearing the green jacket was not Russell Warren. At para. 38, there is more specific reference to the evidence of Mr. Hickey at the Gilligan trial. Also, at para. 35, there is reference to the fact that it “emerged” at the Gilligan trial that Ms. Finnegan had failed to identify Russell Warren in an identification parade. Paragraph 36 refers to the fact that the parade was organised and supervised by Sergeant Kearney.
49. Paragraph 37 refers to evidence given by Bernadine McCabe in the Gilligan trial, namely that she saw Veronica Guerin in the hall of the courthouse at 12.40 p.m. The relevance or otherwise of Ms. McCabe’s evidence will be discussed later in the context of telephone evidence. For present purposes, it is sufficient to note that the submissions filed made specific reference to Ms. McCabe. It should also be recalled that the witness statement of Ms. McCabe was one of those that the defence specifically requested to have photocopied at the trial stage in Meehan.
50. The section of the submissions between paras. 63 and 72 is headed ‘Material Witnesses not made Available’. At para. 64, the submissions recite that according to Russell Warren the rider of the motorcycle wore a silver grey helmet at the scene of the murder, that Russell Warren claimed to have been at the scene of the murder in a blue Liteace van and that the applicant would be seeking to rely on the following witnesses who gave evidence at the Gilligan trial. Reference is then made at paras. 63 to 71 to the evidence given at the Gilligan trial by Victor Poleon, Fergus McCarthy, Philip Pearson, John D’Arcy, Martin Ely, Sarah Dever and Eamon Brady. In an affidavit sworn by Ms. Bartels for the purpose of responding to the DPP’s application for dismissal of this s.2 application on a summary basis, there is a statement at para. 4 to the effect that it is clear that serious issues of non-disclosure arise that go to the root of the convictions. She exhibits the transcripts of the evidence of all these witnesses, and for most of them she also exhibits witness statements.
51. Paragraphs 40 to 53 deal with the issue of telephone evidence. At paras. 52 and 53, it is submitted that the Meehan trial court made a number of material errors of fact in its summary of the evidence relating to the telephone traffic. The trial court summarised Warren’s evidence as being that “while he was at Naas, he was constantly phoning with Mr. Gilligan and the accused, Mr. Meehan, enquiring if he found the car”. The records show that the applicant’s phone was only called twice by Russell Warren’s phone. The Court summary claims that Mr. Warren “continued to get and send phone messages to Mr. Gilligan and Mr. Meehan while he was following the car”. Again, it is said that this is not borne out by phone records. It is also submitted that the telephone traffic does not bear out “constant communication” between Russell Warren and Brian Meehan as found by the Court.
52. The question of telephone traffic featured prominently at the Meehan trial, and indeed we have seen the significance attached to this topic by the trial court. It is necessary to say now loudly and clearly that no new or additional phone records have come to hand since the Meehan trial. The same records introduced by the same witnesses were before the Gilligan trial, and it is the same records that are now available. It was open to Mr. Meehan at his trial to advocate any position he wished in relation to the phone records. If, as he submitted at paras. 52 and 53 of the written submissions, he contended that there had been a misinterpretation of the phone records or an over-interpretation of the records by the trial court, he was entitled to argue that as a ground of appeal before the Court of Criminal Appeal, and indeed he would not have needed leave to do so as no new evidence would have been required to make his argument. However, the one thing that he cannot do is establish that the records which were available at trial and which were the subject of detailed submissions in advance of the appeal to the Court of Criminal Appeal now constitute new or newly discovered facts.
53. It is abundantly clear that all of the material on which Mr. Meehan is seeking to rely was available, at the latest, from the time of the Gilligan trial in 2001 and that the arguments which he now presents to this Court had been formulated in detail by 2003. He chose not to present those arguments at his appeal. The choices he made as to how his appeal should be conducted, and the Court is entirely satisfied that it was his choice taken on advice, as to how the appeal should be conducted, has consequences. To formulate grounds and arguments, not proceed with them and then seek to resurrect the same grounds and arguments four and half years on as new facts or newly discovered facts is quite unacceptable, and indeed, in the view of the Court, amounts to an abuse of process. The Court will therefore be dismissing the section 2 application.
54. Before moving on to deal with other issues, the Court would make some observations in relation to some of the issues that have been canvassed. The Court is not at all convinced that the evidence about Ms. Finnegan’s attendance at the identification parade in Lucan garda station on 2nd October, 2006, would or ought to have the significance contended for. Ms. Finnegan never purported to identify Russell Warren, nor did she suggest that she would have been in a position to do so. Rather, she described the actions of someone she had seen in the street. In the circumstances that have been discussed, the trial court was prepared to attach considerable significance to that. However, the significance arises from the description of what Ms. Finnegan said she observed when matched with Mr. Warren’s account of his actions and movements. This was never a case of identification or recognition.
55. That Ms. Finnegan would fail to pick out somebody in a parade on 2nd October, 1996, scarcely seems significant. Ms. Finnegan was not being asked to pick out someone who had engaged in a confrontation with her or had robbed her, or who had otherwise involved himself in some dramatic and shocking activity which drew attention to himself such that the face and features of the individual might be expected to stick in the memory. Ms. Finnegan simply observed an individual in the busy street of a provincial town, and when she became aware of the shocking events that occurred at a nearby location, at a point close in time, she came forward in a public-spirited manner to report what she had observed. How many people, if any, would be in a position at a time remove of some three months to identify or recognise someone they had merely seen in the street? So far as Mr. Hickey’s evidence is concerned, he was wearing a jacket and tie, and as the President of the Special Criminal Court pointed out, that made sense as he was due to appear as a defendant in the District Court. Ms. Finnegan was very clear in her evidence that the person she observed and whose actions she described was wearing an open-neck shirt. Again, Mr. Hickey was clear that he, unlike the person observed by Ms. Finnegan, had never been on the Newbridge Road, having driven from Naas to Kilcullen directly. It will also be noted that Mr. Hickey’s statement was one of those which the defence requested to be copied.
56. The applicant has laid emphasis on the evidence of Bernadine McCabe. This evidence is of interest to the applicant because Ms. McCabe had stated that at approximately 12.40 p.m., at a time when she was standing under the clock in the hallway of the courthouse, she had seen Veronica Guerin along with Mr. Brian Price, who was her solicitor, coming out of the courtroom. However, the significance of that evidence is undermined somewhat by the fact that Ms. Guerin made a phone call at 12.35 p.m., and quite obviously, she did not make that phone call in the courtroom. The other matter that is certain is the time of Ms. Guerin’s death, which is timed at 12.54 p.m. It is possible to be so precise about this because she was on the phone at the time she met her death and that phone call was terminated. The other aspect to all of this is that it just would not be possible to go from the courthouse out onto the street to where Ms. Guerin had parked her car and then drive to the junction where she was murdered in the time available, which meant that Ms. McCabe’s evidence could not have the significance contended for. Ms. McCabe’s statement was one of those that the defence requested should be photocopied on 5th June, 1999.
57. Turning briefly to the evidence of witnesses who were close by to the murder scene, it must be said, and this is not at all surprising, that there are considerable divergences between them when they come to describe what they saw. One of the witness’s from the scene was Mr. Victor Poleon. His evidence at trial was that the riders of the motorcycle were wearing black helmets. The interest of the defence in this point is that Russell Warren had stated that a silver grey helmet had been left on the bike the previous night. A measure of the confusion is that while Mr. Poleon’s evidence at the Gilligan trial was that the riders of the bike from which the shots were fired were wearing black helmets, in his statement made to the gardaí on the day of the murder, he had said that both riders wore white crash helmets. Mr. Fergus McCarthy was in a car parked behind the car of Ms. Guerin at the traffic lights. In his statement, he had stated that the driver of the motorcycle “93 D Reg.” was wearing black dress and a large black motorcycle helmet, while the pillion passenger, the gunman, wore dark clothes and a large black motor cycle helmet. In the course of his evidence, he said that the men on the bike were wearing helmets and then added “I did say in my report that I thought they were wearing black helmets”. Mr. McCarthy’s statement was one of those copied following a specific request from the defence on 5th June, 1999. Another witness, Mr. Philip Pearson, was also one of those whose statement was explicitly requested by the defence on 5th June, 1999. Mr. Pearson spoke of the gunman wearing a black helmet and stated that the gunman was the pillion passenger on a motorcycle driven by another person, who also wore a black helmet. He made a further statement on the same day, the day of the murder, in which he said that he was positive that both occupants of the motorcycle wore black helmets and not white as stated in the news. When called as a witness at the trial of The People (DPP) v. John Gilligan (Unreported, Special Criminal Court, O’Donovan J., 15th March, 2001), in response to a question from the President of the Court, he stated that he did not see a blue Liteace van at the scene.
58. The other witness from the scene was John D’Arcy. He provided a statement to the gardaí on 26th June, 1996, and was called as a witness in the Gilligan trial. He described being positioned a number of cars behind Ms. Guerin’s car and described the amount of traffic that there was in the area at the time. Again, in response to a query from the President of the Court, O’Donovan J., the witness said that he had not noticed a blue Liteace van. Ms. Sarah Dever was in the vicinity of the murder scene selling magazines close to the junction where the murder took place. Again, she provided a statement to the gardaí on 26th June, 1996, and was called as a witness during the Gilligan trial. Ms. Dever’s statement was also one of those that the defence requested to be copied and provided to them on 5th June, 1999. One of the other witnesses at the scene was Mr. Eamon Brady, who was in front of Ms. Guerin’s car and who, when having heard a shot, saw something of the incident in his wing mirror. He stated that the pillion passenger had a black helmet; however, at trial he said that he did not see the driver of the bike and could be of no assistance with what he was wearing. In answer to the President of the Court, he said he did not recall seeing a blue Liteace van. Mr. Ely refers to the pillion passenger as having something in his right hand, probably a mobile phone, and as appearing to be speaking into it, which does not tally with Russell Warren’s account that it was the applicant who was in mobile phone contact with him and who at times was using a hands-free device while on the bike. This is particularly so in light of the fact that it was the prosecution case that the applicant was the driver of the bike.
Discussion
59. The manner in which this application has morphed from one based on alleged non-disclosure, to one that is critical of the lawyers who advised Mr. Meehan at various stages is very unsatisfactory. In the situation where the applicant has to accept that there was disclosure, he retreats to a situation of saying that his lawyers at trial did not appreciate the significance of the material that was disclosed. There is no evidence to support that proposition whatsoever. The situation in relation to the Court of Criminal Appeal legal team is even more extreme. In effect, Mr. Meehan says that the decision not to proceed with the motion to admit new evidence in the form of the Gilligan and Ward trial transcripts, and not to expand the grounds, was contrary to his instructions. Mr. Meehan’s current legal team, his fourth, are more circumspect in their criticism of their colleagues and suggests that the decision not to proceed was based on a misunderstanding of the significance of the Cronin decision. Having criticised his legal team at trial and on appeal for good measure, Mr. Meehan is then critical of the solicitor who submitted the application pursuant to s. 2 of the Criminal Procedure Act 1993 for failing to drive it forward with the required vigour.
60. One matter that is entirely clear is that no new fact or newly discovered fact has been established. Section 2(3) of the Criminal Procedure Act 1993 provides what is, in effect, an expanded definition of a new fact in that it speaks of a fact known to the convicted person at the time of the trial or appeal process, the significance of which was appreciated by him, where he alleges that there has been a reasonable explanation for his failure to adduce evidence of that fact. Each and every fact was known at the time of the appeal to the Court of Criminal Appeal and in most, if not all, of the cases long before that. There has been no reasonable explanation why arguments should be advanced, abandoned and then revived years later.
61. Section 2(4) deals with the definition of a newly discovered fact. It speaks of facts coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined. There has been and could be no suggestion of any new facts whatever coming to notice since the appeal was finally determined. Neither, can it be said that the significance of the facts were not appreciated during the trial or appeal proceedings. The fact that a motion was brought to admit additional evidence provides the clearest possible, and indeed conclusive, evidence that the significance of the matters now sought to be relied upon were considered before the appeal to the Court of Criminal Appeal.
62. Finally, it should be noted that the Meehan trial heard on day 2 of that trial from a number of witnesses, including Mrs. Michelle Wall, Mr. Michael Kirby, Mr. Darren Hodgins, Mr. Patrick Rooney, Mr. Declan Halpin, Mr. David Collis, Mr. Brian McNamara, Mrs. Mary McNamara and Mr. Paul Kinsella. All of these recounted their memories of the events on the Naas Road and as was to be expected, their accounts diverged. Mr. Meehan and his legal team were well aware that statements had been taken from others who were also at or close to the murder scene but were not being called. There was nothing to stop them insisting that further eye-witnesses be called and then exploring the extent to which the various accounts diverged from each other and the extent to which any or all of those accounts could have any relevance to the narrative offered by Mr. Warren.
63. There is one further point that the court would wish to address. The appellant has sought to make use of material of interest extracted from the Gilligan transcript. He has operated on the basis that he can trawl through that transcript, make a selection and then proceed to deploy the selected material. However, it is not in fact the case that in general one is entitled to rely on the transcript of another trial. On the contrary, cases where that will be permitted will be exceptional.
64. The circumstances in which evidence given at a later trial might be admissible in the course of an appeal from a case that was decided earlier was considered by the Court of Criminal Appeal in DPP v Paul Ward (Unreported, Court of Criminal Appeal, 22nd March, 2002). There, the court commented:-
“It is difficult to see any circumstances in which a finding made in a subsequent case in any court, criminal or civil, as to the character or integrity of any witness or party could be made evidence on the appeal. However, there are extreme cases in which facts established in later cases may so undermine the basis on which an earlier case had been decided that it would be appropriate to have regard to the later case on an appeal in the former. In that connection Mr. Peter Charlton, S.C., helpfully referred the Court to a decision in R. v. Williams: R. v. Smith [1995] 1 Cr. App. R. 74, where the Court of Criminal Appeal in England permitted evidence to be given of a trial subsequent to that under appeal as it had emerged in the subsequent case that the police who had carried out the investigation did engage, and had been engaged, in the fabrication of evidence. That case is illustrative of the limited range of matters in which evidence given in a later trial might be admissible on appeal from an earlier one. It was impossible in the present case to identify any comparable far-reaching breach of fair procedures and much of the evidence which it was sought to introduce merely went to the credibility of the State’s only material witness. However to avoid any possible injustice this Court permitted the applicant to extract material from the transcripts in the two subsequent trials relating to certain specified topics which might have had the capacity to undermine the substance of a fair trial. In fact the evidence adduced was not material to this court in reaching its decision but it might be said that it illustrated further, if that were necessary, the difficulties of ensuring the integrity of the evidence of an accomplice whose evidence is such that he must be admitted to a witness protection programme.”
65. In the Court’s view this is certainly not such an exceptional case. Really this is a case where the appellant is saying that the approach of the Gilligan trial court is to be preferred to the approach of the court that dealt with his case. However, in doing so, he chooses to ignore the remarks made by the Supreme Court in Gilligan on the issue of corroboration. The Court makes this observation, notwithstanding that it has in fact addressed and dismissed the substance of the appellant’s contentions.
Conclusion
66. For the reasons given, the Court is satisfied that the evidence given by Ms. Finnegan, Mr. Hickey and Sergeant Kearney, which is said to be at the core of this application, discloses no new or newly discovered fact. Furthermore, the Court is satisfied not only that all of the material pointed to by the applicant was properly disclosed to him and his legal team but also that its significance was fully appreciated by them, at the very latest by the time of his appeal against conviction to the Court of Criminal Appeal in 2003. Accordingly, the Court will refuse the application.
