Two men, the so-called "Tallaght Two", served prison sentences after fundamentally defective and unfair trials in which the State withheld important evidence from the defence, the Court of Criminal Appeal has been told.
No adequate explanation for the non-disclosure had been given, Mr Patrick MacEntee SC, for Mr Joseph Grogan and Mr Joseph Meleady, said in the continuing inquiry into whether the men were victims of a miscarriage of justice arising from the assault of Mr Eamon Gavin and the theft of his car on February 26th, 1984.
Counsel submitted that he had established two serious, fundamental defects in both the original trial and retrial, which required the certification of a miscarriage of justice.
The first defect was the State's incorrect assertion at the original trial that the fingerprint of a key witness, Mr Brendan Walsh, was in the back of the car when Garda evidence available to the State showed it was in the front.
Mr Walsh had always maintained he was the front seat passenger in the car, but the State's misplacing of his fingerprint, Mr MacEntee said, at the prompting of the prosecuting garda, Sgt Patrick Thornton, to prosecuting counsel, discredited his testimony.
The second defect was the non-disclosure of a memorandum made by a State solicitor, Mr Richard Walker, before the men were returned for trial which said Sgt Thornton had told Mr Walker that Mr Gavin had been shown photos and identified one of the two accused before he identified them at Rathfarnham Courthouse in 1984.
Mr Barry White SC, also for the appellants, said the DPP should have known of the Walker memorandum and the misplacing of the fingerprint before the second trial. He concluded there was an irreconcilable conflict between the Walker document and the evidence of Mr Gavin and Sgt Thornton and the DPP should not have directed a retrial.
Mr Edward Comyn SC, for the DPP, said he accepted the Walker document was clear and straightforward. He said the DPP had to take into account Mr Gavin's sworn testimony.
Mr Comyn said that at the first trial Sgt Thornton might have believed the Walsh fingerprint was in the back of the car. Mr Justice Kearns remarked that the sergeant should have realised his mistake on the day he made it, as it was of critical importance and it would have taken only a moment to dig up the fingerprint evidence.
Yesterday the court was told the men's lawyers this week learned the address of a man who is alleged to have been the driver of Mr Gavin's car that night. That man, Mr Gordon Dunne, and Mr Paul McDonnell, who is alleged to have been the back-seat passenger, may be called to testify.
When Mr Gavin's car was stolen from outside his home at Templeogue, Dublin, he jumped on the bonnet. He was driven for a distance before jumping off after he was hit with a golf umbrella and threatened with a petrol can.
Mr Grogan and Mr Meleady were aged 17 at the time. In 1985 they were convicted, on the visual identification evidence of Mr Gavin and his son, Paul, of assaulting Mr Gavin and causing malicious damage, and jailed for five years. Their convictions were overturned in 1995, but the court refused to certify a miscarriage of justice.
A Supreme Court appeal found the Court of Criminal Appeal had erred in its reason for refusing to certify and directed that the matter be reheard.
Yesterday Mr Walsh said he was questioned about taking Mr Gavin's car when he was arrested for another offence in 1984. He denied involvement and his fingerprints were taken. He was later served with a book of evidence which had material about his fingerprint being found in the front of the car.
In March 1985 he pleaded guilty to assaulting Mr Gavin. He had hit him with a golf umbrella to get him off the car. while it was being driven. He could not recall hitting him with a plastic bottle.
The court was told Mr Walsh's fingerprint was a right thumb print facing down inside the top of the passenger window. The fingermark was lifted on February 27th, 1984, and Mr Walsh's fingerprints were taken by gardai on March 7th. Mr Walsh said he had been in the front passenger seat and had rolled down the window to hit Mr Gavin with the umbrella. He was lefthanded. He would have held the umbrella with both hands. He would not have used both hands all the time. He did not remember if the window was rolled all the way down.
Mr Gavin was shouting things like: "Don't take my car, don't wreck my car". He had vague memories of other cars stopping and looking and of the car hitting another car. He could not recall another car trying to block them. He had stolen cars with others but never with Mr Meleady or Mr Grogan.
Mr Paul McDonnell was then called. He said he was "a convicted perjurer", a reference to his conviction after he told another court hearing he was the rear-seat passenger in Mr Gavin's car.
Mr Justice Geoghegan directed Mr McDonnell that he need not answer any question that might incriminate him.
Mr MacEntee said the "rightness or wrongness" of the perjury conviction depended on the outcome of the court's inquiry. He said Mr McDonnell was convicted on the basis that Mr Meleady and Mr Grogan had been correctly convicted. It was his view Mr McDonnell should be independently advised for this inquiry. Mr McDonnell was then asked to step down.
Mr MacEntee said he believed both Mr Dunne and Mr McDonnell would be able to say who was in Mr Gavin's car but they might not be disposed to. Mr McDonnell was feeling "raw and vulnerable" over being convicted of perjury.
Later yesterday the court heard submissions from both sides as to what constitutes a miscarriage of justice. The hearing resumes today.
