DPP v Martin Conmey (No 3)

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 27 July 2012
• Neutral Citation: [2012] IECCA 75
• Court: Court of Criminal Appeal
• Date: 27 July 2012

DPP v Conmey

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

MARTIN CONMEY

Applicant

[2012] IECCA 75

Hardiman J.

Hanna J.

Hogan J.

CCA 1CPA/00

THE COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Practice and procedure

Application that judge be recused from hearing application - Application for costs and application for declaration that conviction was miscarriage of justice - Conviction already quashed by judge - Judge sent brief before appointment to bench - No recollection of receiving brief - Objective bias - Offer from judge to withdraw - Waiver - No objection made - Estoppel - Whether ordinary reasonable member of public would have reasonable apprehension that litigant would not have fair hearing before impartial tribunal - Bloomer v Incorporated Law Society of Ireland (No 3) [2002] 1 IR 189; Bula Ltd v Tara Mines Ltd [2000] 4 IR 412; Corrigan v Irish Land Commission [1977] IR 317 and R (Taverner) v Justices of Tyrone [1909] 2 IR 763 considered - Criminal Procedure Act 1993, ss 2(1) and 9 - Application refused (1CPA/2000 - CCA - 27/7/2012) [2012] IECCA 75

The People (Director of Public Prosecutions) v Conmey

Facts: The applicant had been convicted on manslaughter in 1972. The case against him was entirely circumstantial. Following an appeal against his conviction, the Court of Criminal Appeal had quashed his conviction because of serious concerns that the Gardaí had concealed earlier statements from witnesses which differed substantially from the statements used at trial. After seeking to prevent costs being awarded to the applicant in a second hearing, the prosecution now sought to prevent Hardiman J from hearing the costs application on the basis of bias.

Held by Hardiman J, that the prosecution did not allege actual bias on the part of Hardiman J, but rather objective or perceived bias. The prosecution alleged the applicant”s solicitor had sought Hardiman J as an advocate in the matter, and Hardiman J had part of the panel of judges in the second hearing.

The Court considered the leading case on bias to be Bula Ltd and Others v Tara Mines Ltd and Others [2000] 4 IR 412. The rule derived from this case was that a reasonable member of the public would reasonably consider an applicant would not have a fair hearing with an impartial judge. It was accepted that having acted for a party did not preclude a judge from hearing a matter. Therefore as Hardiman J had been merely sought as an advocate in the matter and had offered to withdraw, this did not suffice to disqualify him from hearing the application. Bula Ltd and Others v Tara Mines Ltd and Others [2000] 4 IR 412 considered.

Further, the prosecution having failed to raise an objection at an early stage of the case could not be allowed to have the judge disqualified at a later stage. The prosecution had waived their right to object. Bloomer v Incorporated Law Society of Ireland (No. 3) [2002] 1 IR 189 considered.

The application for Hardiman J to be recused was therefore dismissed.

CRIMINAL PROCEDURE ACT 1993 S2(1)

CRIMINAL PROCEDURE ACT 1993 S2

CRIMINAL PROCEDURE ACT 1993 S9

BLOOMER & ORS v INCORPORATED LAW SOCIETY OF IRELAND & ORS (NO 3) 2002 1 IR 189 2001/2/324

BULA LTD (IN RECEIVERSHIP) & ORS v TARA MINES LTD & ORS (NO 6) 2000 4 IR 412 2000/3/925

CORRIGAN v IRISH LAND CMSN 1977 IR 317

SPENCER BOWER & KINGCOME TURNER THE LAW RELATING TO ESTOPPEL BY REPRESENTATION 2ED 1966

DE SMITH & ORS JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 5ED 1995 PARA 12.036

Hardiman J.

1 This is the third judgment which the Court has delivered in this matter. One was an ordinary judgment, necessitated by the nature of the case: the other two are judgments on special and very unusual applications by the prosecution. All three must be put in context in order to make sense of the present application.

2 On the 22^nd November, 2010, the Court quashed the conviction of the applicant, Mr. Conmey, pursuant to s.2(l) of the Criminal Procedure Act, 1993. The conviction was an old one: Mr. Conmey had been convicted as long ago as the 14^th July, 1972 of the manslaughter of Una Lynskey. Convicted with him was a co-accused, Dick Donnelly, whose conviction was however set aside on appeal shortly afterwards. There was also a third person originally charged with the murder of Ms. Lynskey, a Mr. Martin Kerrigan. He, most unfortunately, was kidnapped and killed during the course of the garda investigation, by relatives of the deceased lady.

3 The case against Mr. Conmey is summarised in the judgment of this Court delivered the 22^nd November, 2010. From this it appears that the case against him was entirely circumstantial. For the reasons set out there, it was absolutely necessary for the prosecution to place Mr. Conmey at or near the scene of the crime in a place called Porterstown Lane, during an extremely tight and short time frame of about fifteen minutes, established by the circumstantial evidence. This was done most directly by the evidence of two witnesses, Mr. Martin Madden and Mr. Séan Reilly. The evidence of a third witness, a youth called John Shevlin, was also used to this end. Only Mr. Séan Reilly survives of the three.

4 The judgment of the Court of Criminal Appeal of November, 2010, contained, at p.34 a summary of its factual findings:

5 (a) That the gardaí were at all material times in possession of original statements, presumably in handwritten form, and typed versions of the initial account of the witnesses, Séan Reilly, Martin Madden and John Shevlin,

6 (b) That these original statements wereradically inconsistent with later statements of the same witnesses and with the evidence given at the trial,

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

8 (e) That significant use was made of the subsequent statements (including depositions) of these witnesses or certain of them and that the later statements also played a significant role in the investigation, specifically in causing the applicant and the two others to be brought to Trim Garda Station.

9 (f) There is evidence (quoted elsewhere) that it was the later versions of these witnesses account that led to the taking of the applicant and his colleagues to Trim Garda Station and their retention there, admittedly without sleep, for some forty-five hours,

10 (g) That the survivor of the three relevant witnesses, Séan Reilly, now gives an account of having been severely and unlawfully pressurised by the gardaí to make the altered statement. This account includes allegations of physical assaults.

11 It was also established in evidence that Mr. Conmey had consistently protested his innocence of this crime. However, as the law stood at the time, once his appeal was dismissed there was no further legal recourse open to him. However, the Criminal Procedure Act,1993 contained a mechanism whereby a person who had been convicted of an offence and who alleged that a new or newly discovered fact showed that there had been a miscarriage of justice in relation to the conviction could apply to the Court for an order quashing it.

12 This was an entirely new jurisdiction at the time. It was described by the learned authors of the Annual Review of Irish Law for 1993 as "the legislative reaction to the fall out from recent well publicised cases of miscarriages of justice, including the Guilford Four and the Birmingham Six cases in Britain and, in Ireland, the Nicky Kelly case.". The learned authors expressed the opinion that the Statute "resulted in enormous changes to the Irish Criminal Justice system."

13 In this s.2 application, Mr. Conmey alleged that there were ten categories of newly discovered facts. These are listed at p. 16 of the judgment already referred to. The first category is "the undisclosed statements of Séan Reilly, Martin Madden and John Shevlin." This category was entirely documentary. At the hearing of the s.2 application it was conceded by the Director of Public Prosecutions that the first category referred to documents which were capable of being "newly discovered facts" for the purposes of s.2. For this reason, and for other reasons set out in the judgment, the Court decided first to consider this category of newly discovered fact. In the event, it transpired to be unnecessary to go beyond that category.

14 The newly discovered evidence was entirely documentary. Messrs. Reilly, Madden and Shevlin had made initial statements to the gardaí which tended to favour the defence in that they did not put Martin Conmey at the scene at any relevant time and which, the applicant claimed, and the Court held, were not disclosed to him or to his advisers. He claimed that this non-disclosure continued even though the witnesses in question gave evidence at variance with the contents of the undisclosed statements. He further claimed that the statements continued to be undisclosed even when one of the witnesses, as summarised above, was cross-examined in relation to another prior statement of his, for the purpose of rendering him a hostile witness. Even then, he said, the original garda statements, which supported the evidence first given by that witness, Mr. Madden, were withheld.

15 The contents of the undisclosed statements and the manner in which they varied from the later statements, and from the evidence given by the witnesses, is set out at pages 17 - 30 of the judgment of November, 2010.

16 The applicant was tried in 1974 in the Central Criminal Court before the late Mr. Justice Henchy and a jury. Speaking of the evidence of Mr. Madden, the learned trial judge told the jury that it:

"… is acrucial piece of evidence. I do not suggest to you that you should act upon it or not act upon it: it is a matter entirely for you."

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