An appeal by building contractor Colm Murphy aimed at stopping his re-trial on a conspiracy charge connected with the Real IRA bombing of Omagh has opened at the Supreme Court.
A native of Co Armagh with an address at Jordan's Corner, Ravensdale, Co Louth, Mr Murphy (54) is appealing against a High Court decision of last October by Mr Justice Iarfhlaith O'Neill refusing his application to prevent his re-trial before the non-jury Special Criminal Court.
He has argued his prosecution should not be allowed go ahead on grounds including delay in bringing the proceedings which, he says, has prejudiced his right to a fair and speedy trial.
The appeal is being heard by a five judge Supreme Court, presided over by the Chief Justice Mr John Murray who is sitting with Mr Justice Hugh Geoghegan, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan.
Opening the appeal, Michael O'Higgins SC, for Mr Murphy, said the High Court had erred in finding the delays in the case did not breach his client's rights.
Counsel said there were a number of delays, including an unjustifiable three year delay resulting from the DPP's decision to prefer perjury charges against two gardaí who gave evidence at Mr Murphy's first trial in 2001
A further delay occurred between Mr Murphy being charged in 1999 and not being tried until 2001/2002. This delay occurred despite the fact that the nuts and bolts of the case against Mr Murphy were ready at a relatively early stage, he said.
Mr O'Higgins also argued the High Court wrongly concluded Mr Murphy's memory problem was such that he could not have a fair trial.
Mr Murphy was compromised due to short term memory loss sustained as a result of head injuries following a hit and run accident in 1989, counsel said. As a result of this memory malfunction he could not challenge details of Garda interviews, particularly an interview on the third day of a period of detention in 1999.
During that interview it was alleged Mr Murphy had admitted handing over a phone that was to be used in a bombing operation, counsel said. He said expert analysis revealed that up to 7/8s of what was contained in the Garda interviews with Mr Murphy was "missing" and unavailable as the interviews were not recorded by either audio or video equipment.
Mr O'Higgins will resume his submissions when the appeal hearing resumes on a date yet to be fixed.
Mr Murphy was freed on bail in 2005 after the Court of Criminal Appeal quashed his conviction and 14 year sentence for a conspiracy offence connected with the Real IRA bombing of Omagh in 1998. Twenty nine people, including a pregnant woman with twins, died in the bombing.
During his 25-day trial in 2001 and 2002, Mr Murphy had pleaded not guilty to conspiring in Dundalk with another person not before the court to cause an explosion in the State or elsewhere between August 13th and 16th, 1998.
The appeal court overturned this conviction and ordered a retrial after finding the Special Criminal Court failed to give proper regard to altered Garda interview notes at the trial. It found there had been "an invasion of the presumption of innocence" in the SCC judgment.
