DPP v Meleady (No 3)

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 20 March 2001
• Neutral Citation: 2001 WJSC-CA 2025
• Court: Court of Criminal Appeal
• Docket Number: [CCA No. 1490 of 2001]
• Date: 20 March 2001

DPP v. MELEADY & GROGAN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

v.

JOSEPH MELEADY AND JOSEPH GROGAN AND IN THE MATTER OF CIVIL APPLICATIONS PURSUANT TO THE PROVISIONS OF SECTION 9 OF THE CRIMINAL PROCEDURE ACT, 1993

APPLICANTS

2001 WJSC-CA 2025

Geoghegan J.

Kearns J.

Roderick Murphy J.

1 (A) CPA/94

1 (B) CPA/94

THE COURT OF CRIMINAL APPEAL

Synopsis:

Criminal Law

Criminal; miscarriage of justice; applicants convicted of the theft of a car, carrying the owner on the bonnet of such car, threatening and assaulting the owner; identification evidence of owner and son only evidence against applicants; convictions quashed by a differently composed Court of Criminal Appeal based on the newly discovered facts of the location in the front of the car of a fingerprint not belonging to either applicant and the "Walker" memorandum suggesting that the owner identified the applicant from police photographs prior to his identification in Rathfarnham courthouse; whether applicants entitled to a certificate to the effect that the newly discovered facts showed a miscarriage of justice had occurred; whether applicants are, on balance of probabilities and on foot of newly discovered facts, innocent of involvement in the offence for which they were convicted; whether trial judge would have excluded the identification evidence as unsafe if he had been in possession of the newly discovered facts; s. 9, Criminal Procedure Act, 1993;

Held: Certificate granted on foot of the "Walker" memorandum.

DPP v. Meleady - CCA: Geoghegan J., Kearns J., Murphy J. - 20/03/2001 - [2001] 4 IR 16

The proceedings concerned the convictions of the two applicants in relation to an alleged joy-riding incident. Part of the evidence relied upon in securing the convictions was identification evidence tendered by two witnesses to the incident. The applicants submitted that on the basis of recently discovered documentation the identification evidence was unsafe and a miscarriage of justice had occurred. Geoghegan J, delivering judgment, held that the identification evidence would not have been allowed by a trial judge. There had been a miscarriage of justice and the court would certify accordingly.

Citations:

DPP, PEOPLE V MELEADY & GROGAN 1995 2 IR 517

CRIMINAL PROCEDURE ACT 1993 S2

CRIMINAL PROCEDURE ACT 1993 S2(1)

CRIMINAL PROCEDURE ACT 1993 S2(2)

CRIMINAL PROCEDURE ACT 1993 S2(4)

CRIMINAL PROCEDURE ACT 1993 S9

CRIMINAL PROCEDURE ACT 1993 S3

DPP, PEOPLE V MELEADY & GROGAN 1997 2 IR 249

DPP, PEOPLE V PRINGLE (NO 2) 1997 2 IR 225

NOOR MOHAMED V THE KING 1949 AC 182

1 20th of March 2001 by Mr. Justice Geoghegan

Mr. Justice Geoghegan

2 This is a case with a quite extraordinary history. In order to understand it and place it in context it is necessary to give a brief outline of that history, which covers a period of some seventeen years. On the 26th of February, 1984 a car belonging to one Eamon Gavin was stolen from outside his house in Templeogue. Mr. Gavin was alerted to the theft and tried to prevent his car being taken by jumping onto the bonnet. The car was then driven for a considerable distance with Mr. Gavin on the bonnet. He eventually climbed down off the car after having been threatended and assaulted. By any standard it was a brutal crime and a horrific experience for Mr. Gavin. At all material times Mr. Gavin claimed that he would be in a position to identify two of the car thieves being the driver and the front seat passenger.

3 The gardaí set about tracing the culprits. At their request Mr. Gavin went to Rathfarnham courthouse on the 5th of March, 1984. Both applicants were in court on other charges. Mr. Gavin identified Mr. Meleady, one of the applicants herein, as the youth who was driving his car on the occasion of the theft and he identified Mr. Grogan as the front seat passenger. At a later stage on the same morning Mr. Gavin's son, who was a student at Terenure College, was taken out of school by his father and brought to Rathfarnham courthouse, where he identified Mr. Meleady as the driver of his father's car. Both applicants were then arrested and charged. A much fuller and more detailed account of the facts is to be found in the judgment of Keane J. (as he then was) delivering the judgment of the Court of Criminal Appeal in The People (D.P.P.) v. Meleady [1995] 2 IR 517.

4 A fingerprint was located on the inside of the window of the front passenger seat. That fingerprint was found to belong to one Brendan Walsh and he was prosecuted in relation to the incident in a quite separate prosecution brought from a different garda station and as part and parcel of other charges against him. He subsequently pleaded guilty and was sentenced accordingly. The importance of all of this will emerge later on in this judgment.

5 Mr. Meleady and Mr. Grogan were duly returned for trial to the Dublin Circuit Court and a trial which proved to be the first of two trials, took place on the 7th of May, 1985 before Judge Dominic Lynch and a jury. The case for the prosecution rested entirely on the credibility of the identification evidence. The two Mr. Gavins gave evidence of their respective identifications in Rathfarnham courthourse. The two defendants, Mr, Meleady and Mr. Grogan, gave evidence denying any involvement, and there were called on their behalf a number of alibi witnesses together with the Brendan Walsh already referred to. Brendan Walsh's evidence was to the effect that neither Mr. Meleady nor Mr. Grogan were in the car on the occasion and that he, Mr. Walsh, was a front seat passenger. Mr. Eamon Leahy, S.C., counsel for the D.P.P., cross-examined Mr. Walsh on the basis that he had been in the back of the car and not the front because a fingerprint of his had been found on the back window. Mr. Leahy put this question to Mr. Walsh on the prompting of Garda Thornton, the prosecuting guard. Mr. Walsh, however, persisted in asserting that he was in the front of the car. Mr. Leahy could not pursue the matter any further as he was not in a position at that time to call any rebuttal evidence. The jury returned a verdict of guilty.

6 Both of the applicants appealed their convictions to the Court of Criminal Appeal and the hearing of their appeals took place on the 11th of November, 1985. The applicants obtained leave from the Court of Criminal Appeal to adduce additional evidence at the appeal, being the evidence of one Paul MacDonnell. This arose because on the 22nd of May, 1985 Paul MacDonnell, having previously contacted the parents of the applicants, attended at their solicitors" office and made a statement that he and Brendan Walsh and a third man whom he did not name but referred to as "the driver" took Mr. Gavin's car, carried him on the bonnet and recounted how allegedly Mr. Walsh had assaulted Mr. Gavin. In the light of this new evidence the Court of Criminal Appeal allowed the appeal and ordered a retrial.

7 The second trial took place on the 26th/27th November, 1985 before Judge Gleeson and a jury. At that trial no defence evidence of any kind was called. There has been some evidence before this court as to the circumstances in which that decision was made and to which inference will be made later on in the judgment. Counsel for the applicants in the second trial, Mr. Feehan, S.C., purported to rely on the alleged defective identification evidence claiming that there ought to have been a proper identification parade. But the applicants were again convicted.

8 Appeals from those convictions were dismissed by the Court of Criminal Appeal on the 28th of April, 1986.

9 In December, 1986 Paul MacDonnell was charged with perjury and he was put on trial in the Dublin Circuit Court before Judge Buchanan and a jury on the 21st of July, 1987. In the course of cross-examination by Mr. MacDonnell's counsel, Mr. Sorohan, S.C., it emerged from the evidence of Detective Sergeant Felix McKenna that Brendan Walsh's fingerprint was found on the "inside passenger door window". The jury in that trial entered a disagreement.

10 A few days later i.e., on the 27th of July, 1987 Mr. MacDonnell's solicitor wrote to Mr. Meleady's father informing him of the fingerprint evidence of Detective Sergeant McKenna.

11 The second perjury trial took place on the 7th of December, 1987. Brendan Walsh gave evidence and was cross-examined. As in the earlier trial the Gavins gave the evidence of identification which they had always given. On this occasion Mr. MacDonnell was convicted. Judge Moriarty sentenced him to eighteen months imprisonment, suspended on his bond of good behaviour and on condition of his completing 210 hours of community service.

12 It is appropriate to digress at this point briefly to explain that there had been considerable media controversy as to the correctness of the convictions of the applicants. It is neither necessary nor desirable to go into this in any detail but it does from a backdrop as to why, in part at least, there were, as will be explained, considerable internal investigations within the gardaí, the Office of the Chief State Solicitor and the Director of Public Prosecutions, as to the processing of these cases. The location of the fingerprint was crucial new evidence which had been discovered. It was not crucial in the sense of conclusively proving innocence on the part of the applicants but it was crucial in the sense that had it been before the jury in either of the two trials in the prosecutions against the applicants, the jury might, at the very least, have had a reasonable doubt especially as the fingerprint was an inverse thumb mark on the inside of the front passenger window and near the top. But in the context of this present application a much more important piece of additional information came to light. On the 4th of February, 1991, Mr. Barry Donoghue, then a senior solicitor in the Chief State...