A man who spent 14 months in prison for IRA membership has had his conviction declared a miscarriage of justice at the Special Criminal Court.
The non-jury court yesterday found that the garda assistant commissioner Michael O’Sullivan, who gave evidence of his belief that Michael Connolly, 47, from Louth, was an IRA member, had made “an unqualified assertion” that none of the material he viewed that formed the basis of his belief was in the book of evidence. The Special Criminal Court described this assertion as “seriously incomplete and misleading”.
High ranking garda often give belief evidence in IRA membership trials and privilege can be claimed on the material underlying the belief. In order to convict, the court needs to be satisfied that the belief evidence is supported by some other evidence that implicates the accused.
O’Sullivan told the trial that he had formed his belief based on the “entirety” of materials contained in an intelligence file, without any knowledge of what was contained in the book of evidence. In cross-examination, he told Connolly’s defence counsel that he had not seen the book of evidence but was satisfied that none of it was in the book.
In a subsequent re-trial of Connolly, the Special Criminal Court examined the intelligence file and ordered the disclosure of two relevant extracts. One of these summarised the movements or activities of Connolly on December 16, 2014, the date of the alleged offence.
Advertisement
The court found that there was no evidence that O’Sullivan knowingly misled the court as he had no knowledge of what was in the book of evidence.
However, the three judges forming the panel said that they were satisfied that it was “careless” of the garda officer to make the assertion without “being aware at least of the general nature of the alleged independent supporting evidence disclosed” in the book.
Connolly was previously granted leave to seek compensation from the state and last month his lawyers argued that he had suffered a “classic case of miscarriage of justice”.
In a retrial in 2019, Connolly was acquitted of IRA membership after the Special Criminal Court found that it could not rely on the belief evidence as being independent from the investigation.
The court found beyond a reasonable doubt that Assistant Commissioner O’Sullivan honestly and genuinely believed that the accused was an IRA member and that the prosecution’s evidence tended to implicate the accused in the transportation of two explosive devices. However, the evidence caused the non-jury court to have a reasonable doubt as to whether the garda officer had impermissibly double counted the relevant evidence in arriving at his belief.
Advertisement
In June 2018, the Court of Appeal had set aside the applicant’s conviction and ordered a retrial, having found that the trial court had failed to properly exercise its discretion in refusing a defence request to examine the intelligence file upon which the belief evidence was based. This was in circumstances where the Court of Appeal accepted that the belief evidence given by the senior garda officer had contributed “in a significant manner” to the guilty verdict and conviction of the applicant.
Connolly, 47, of Grange Drive in Dundalk, County Louth, had pleaded not guilty to IRA membership on December 16, 2014. It was the prosecution’s case that Connolly was observed by gardaí driving in convoy with another man, who was then found with two improvised explosive devices.
In a judgement returned electronically yesterday, Mr Justice Paul Coffey said that the requirement that belief evidence be supported by independent evidence that is “wholly extrinsic” to the matters relied upon by the relevant officer in forming their belief had become known as “the rule against double counting”. It is an important safeguard which the Special Criminal Court must strictly uphold to counterbalance the use of belief evidence, he said.
The judge said the application for a miscarriage of justice by the applicant was grounded on the newly discovered fact that it was reasonably possible that the senior garda officer’s belief was based in whole or in part on the very same facts as were being offered by the prosecution for its independent support.
The judge said that the non-jury court was satisfied beyond reasonable doubt as to the existence of a body of circumstantial evidence which tended to implicate the applicant in the transportation of two improvised explosive devices for a criminal purpose on December 16, 2014.
Advertisement
“This is not a case where the newly discovered fact establishes that the applicant was innocent of the crime alleged,” he said.
However, the judge said that the court was satisfied that Hugh Hartnett SC, for the defence, had made out that there had been a “grave defect” in the administration of justice, brought about “by agents of the state”. It is clear that the officer made “an unqualified assertion” in the trial that none of the material that he “viewed” or that he had “seen” was in the book of evidence, the judge said.
Coffey said the non-jury court found that the assertion made by the garda officer was “seriously incomplete and misleading” in that it conveyed to the original court of trial that his belief was based only on matters that were “wholly extrinsic” to those contained in the book.
“We are further of the view that if the issue of double counting had been considered in the light of all the evidence that is now available, it is probable that the original court would have considered itself compelled, as did this court, to acquit the applicant,” he said.
Coffey, sitting with Judge Sinead Ni Chulachain and Judge James Faughnan, said that they were satisfied there was a “grave defect” in the administration of justice in the trial that resulted in the conviction and sentencing of Connolly and approved the certificate for the miscarriage of justice application.