The "deliberate suppression" of evidence by two senior gardaí entitled Co Donegal nightclub owner Frank Shortt to a certificate declaring a miscarriage of justice arising from his conviction for knowingly allowing the sale of drugs at his club, the Point Inn, Inishowen, the Court of Criminal Appeal held yesterday. The court also found that certain evidence was deliberately "invented" by both gardaí.
The three-judge court ruled that there was a miscarriage of justice on the grounds of newly-discovered facts - the deliberate suppression of material by Det Garda Noel McMahon and Supt Kevin Lennon.
Mr Shortt served three years in prison arising from his 1995 conviction.
It was set aside by the CCA in November 2000, with no opposition from the DPP, after certain allegations were made in the report of the internal Carty Garda inquiry into alleged corruption by gardaí in Co Donegal.
In granting the certificate, which enables Mr Shortt to sue for compensation, Mr Justice Hardiman, presiding, sitting with Mr Justice O'Donovan and Mr Justice O'Higgins, said that the court had focused principally on the "transformation" which occurred in the evidence of Det McMahon, the principal witness against Mr Shortt, about September 1994, prior to Mr Shortt's trial.
"We have concluded that particular evidence was invented at that time to address certain serious weaknesses in the case against him which became apparent on or shortly after September 1st, 1994. To avoid this invention being discovered, certain essential documents were concealed at the trial."
Those documents comprised Det McMahon's original notes and a further statement of Det McMahon's on which notes were written by his superior - Supt Lennon (then an inspector) - "with a view to suggesting that he create an expanded version of his original statement of evidence".
The latter document was concealed even when a direct question was asked which, if truthfully and completely answered, would have involved its disclosure, the court found. "We find that this invention and concealment were conscious and deliberate acts". It held that Det McMahon and Supt Lennon had deliberately concealed these documents and were fully conscious of their importance to Mr Shortt's defence.
The court said that the more probable version of how new material came to feature in Det McMahon's evidence to the trial was that, having read an Advice on Proofs document from counsel, which highlighted weaknesses in the case, the detective produced a further statement which was still unsatisfactory from Supt Lennon's point of view and which still made no mention of the specific allegation about Mr Shortt. That led to Det McMahon meeting with Supt Lennon. This meeting, the court held, was the genesis of the "new and highly-specific allegations against Shortt".
The court said that, "very regrettably", it had to conclude that it was more probable that the additions to Det McMahon's statement - signified by phrases such as "Where is Shortt - say he was nearby" - were inspired by Supt Lennon and acquiesced in by Det McMahon. The court was driven to the conclusion that Supt Lennon had determined to strengthen the case against Mr Shortt to the extent necessary to make a conviction likely.
The court also accepted evidence from Ms Sheenagh McMahon that Det McMahon, her estranged husband, had told her he had perjured himself during the trial of Mr Shortt. Ms McMahon had impressed the court as "a truthful and generally accurate witness". It found her evidence consistent with other evidence, including the "pattern of change" in the statements of evidence and two "wholly extraordinary" draft letters, one by Det McMahon and the second by Supt Lennon, described as "letters of satisfaction".
"We reject the explanation of these documents given by the gardaí mentioned." The court believed that the letters of satisfaction, which included an assertion by Det McMahon (on Supt Lennon's draft) that he [Det McMahon] had never known Supt Lennon to be involved in any unlawful activity "demonstrate that allegations within the gardaí about the Point Inn operation were a matter of grave concern to Supt Lennon almost four years after the operation has concluded". Neither Det McMahon nor Supt Lennon had advanced any credible explanation of these letters.
The content of the letters was "so unusual and dramatic" - amounting to a garda assuring a superintendent or another member that he had never known the superintendent to act illegally - that it was not possible to accept that either Det McMahon or Supt Lennon could simply have forgotten what allegations of illegal acts led to the writing of the respective drafts.
While the court's non-acceptance of the evidence of the gardaí on those letters did not conclusively demonstrate that the allegations of illegal activities related to the Point Inn, the court was of the opinion, as a matter of probability, that it did relate to the Point Inn at least in part. It was possible to say that the precise nature of the concern which the Point Inn operation presented to Supt Lennon in 1996 related to allegations of illegal activities participated in or authorised by him in connection with that operation.
Given its findings on the above matters, the court said it was unnecessary to consider certain other evidence given at the hearing. It also said that while certain documents were overlooked and sometimes produced later in the day, it was satisfied that no documents were deliberately concealed by either the DPP or the gardaí conducting the Carty inquiry into alleged corruption by gardaí in Co Donegal. It praised the work done by Mr Brian McCreary, solicitor for the DPP, and Mr John Ward, solicitor for Mr Shortt.
Det McMahon and Supt Lennon, both formerly attached to Buncrana Garda station, were involved in Operation Spider, an undercover Garda operation into alleged drug-dealing at the Point Inn in 1992. Det McMahon was the chief prosecution witness at Mr Shortt's trial, while Supt Lennon, then an inspector, headed the investigation.
During the 16-day hearing of Mr Shortt's application for a certificate, allegations were made by Ms Sheenagh McMahon that her estranged husband told her he perjured himself at Mr Shortt's trial and did so in order to get Supt Lennon promoted.
Ms Adrienne McGlinchey also made allegations that Mr Shortt was framed by the gardaí. She made further claims that Det McMahon and Supt Lennon were involved in planting explosives at locations in Co Donegal to be found subsequently by gardaí.
These claims were denied by both gardaí.
In its judgment, the court noted that the case against Mr Shortt was very weak in September 1994, with senior counsel for the DPP noting, having read the Book of Evidence, that Mr Shortt was not mentioned as being present when drugs were changing hands and that Det McMahon's then statement seemed to indicate that the Shortts did not know what was going on in their premises.
The court noted that, in his evidence at Mr Shortt's trial, Det McMahon was the principal prosecution witness and had named or described persons from whom he purchased drugs at the Point Inn and had said he took considerable pains to ensure certain of the transactions were visible to Mr Shortt.
The court also noted that Mr Shortt had contended at the trial that he had reached an agreement with Supt Kenny that undercover gardaí would be placed at the Point Inn. Supt Kenny had agreed in evidence that Mr Shortt had suggested this to him, but the superintendent had said he made no "firm decision" to put gardaí in on Mr Shortt's suggestion.
Mr Shortt had said at the trial that he did see suspicious transactions, but knew not to interfere "because I knew they were gardaí acting under cover".
The credibility of this alleged arrangement, and of the defence which Mr Shortt built on it, would be severely compromised if Det McMahon's evidence was accepted, the court said. However, if Mr Shortt's defence was accepted, there would be no case against him.
The court held that Det McMahon's evidence to the trial was severely questioned and observed that his notes lacked the detail which was a strong feature of the evidence he gave. At no stage did the detective disclose a quite separate set of notes or a draft second statement of evidence annotated by Supt Lennon.
It seemed that the existence of a whole sequence of notes and other material was forgotten or concealed by Det McMahon at the trial, the court held.
It found that there was no basis in Det McMahon's contemporary written notes to support the specific allegations against Mr Shortt which the detective had produced after receiving the Advice on Proofs document (setting out what would be required to secure a conviction) and after meeting with Supt Lennon.
The court found it most unlikely that such an experienced police officer would have failed to note, when making notes within hours of its occurring, such a dramatic piece of evidence as his assertion that Mr Shortt was present when the detective bought drugs at the Point.
The court also set out in table form a comparative analysis of Det McMahon's various records, including his annotated statement, relating to the surveillance operation at the Point, and highlighted inconsistencies between these.
Dealing with Ms McGlinchey's evidence, the court found that there were conflicts surrounding this. However, it noted, it was indisputable that had Ms McGlinchey not made certain allegations to the Carty inquiry, the process which led to the discovery of other unquestionably significant facts relating to Mr Shortt's conviction would not have started.
Matters unrelated to Ms McGlinchey established a miscarriage of justice and made it unnecessary to record any findings on her evidence.
