Three accomplices of convicted drug dealer John Gilligan perceived they were being offered cash for testifying against him and they and State agencies were "stringing the other along", holding the common view that "the end justifies the means", the Supreme Court was told yesterday.
Mr Michael O'Higgins SC made the submission when opening Gilligan's final legal attempt to overturn his conviction. Gilligan was jailed for 28 years in 2001 (later reduced on appeal to 20 years) after the non-jury Special Criminal Court convicted him on charges of having cannabis resin for sale and supply. He was acquitted on a charge of the murder of journalist Veronica Guerin in June 1996.
The appeal before the five judges in the Supreme Court arises after the Court of Criminal Appeal last year granted an application by Gilligan to have the Supreme Court determine, as points of law of exceptional public importance, two issues arising from the CCA's decision to reject his appeal to that court.
The points of law relate to the circumstances under which evidence from witnesses involved in a Witness Protection Programme (WPP) is inadmissible in a criminal trial and to the nature of corroborative evidence required from accomplice witnesses who have participated in a WPP.
A central ground of Gilligan's appeal contends that three accomplices who testified against him, while they had been granted immunity from prosecution under the WPP, did not know the nature of their "packages" prior to their giving evidence and this created a situation where the men perceived their performance in court would affect whatever benefits they would receive.
Yesterday, Mr O'Higgins argued that the Garda, Department of Justice and the three men - Charles Bowden, Russell Warren and John Dunne - were all engaged in "wholesale manipulation". The DPP was not so engaged but only because he was not involved in day to day activities, counsel submitted.
He said the relationship between the three men and the State agencies demonstrated serious shortcomings - it lacked transparency, accountability, controls and, most significantly, honesty. Stringing along was the order of the day, both sides were stringing the other along, and all held a common view - the end justifies the means.
Counsel said there had been an "appalling and cowardly murder" of Ms Guerin in June 1996 which attacted strong public outrage. Various forces had come together and the matter was brought to trial in a manner not seen before and which would not happen now. No notes were kept of very key meetings. This had serious consequences, among the more objectionable being compromised witnesses perceiving they were being offered cash for testimony.
He said information was made available to the authorities on a staggered basis and there was a correlation between payments and statements and further statements. This led to the "staggered incrimination" of people. Mr O'Higgins submitted the trial court was wrong in its approach to the grant of immunity to the three accomplice witnesses.
The SCC had considered that, as immunity from prosecution had been granted prior to giving evidence, this did not affect the men's evidence, he said. This was "profoundly wrong". The State had not committed to specifics, the deal wasn't finalised and the men needed the State just as much as the State needed them.
The immunity deal was negotiated off limits while at the same time there was widespread use of an informal immunity, which was in effect given to the three and their families. There were allegations by the men of "performance-related benefits" and it was impossible to tell if this was true or said to embarrass.
The compromised witnesses believed their role was to secure convictions and that they were only in jail until they gave their evidence, he argued. Bowden had boasted in a letter to the DPP, written after the conviction of Patrick "Dutchy" Hollands on drugs charges, that he had put a man in jail for 20 years.
Mr O'Higgins submitted that the trial court made several strange findings. It had found the men did not have a motive to lie when at the same time the court accused two of the men of wholesale perjury. If they had no motive to lie, why were they lying? he asked.
He said the trial court had also found that some trust had developed by the time the men were giving evidence. However, Bowden had sworn an affidavit saying that unless the behaviour of the Department of Justice could be rationally explained, his evidence was performance related and he complained bitterly about being in the dark.
Counsel also argued it was not open to the SCC to justify shortcomings in the WPP on the grounds that the programme was new. An accused was entitled to a fair trial and it was wrong of the court not to engage in a balancing exercise between the people's right to prosecute and the right to a fair trial.
The appeal continues today.