The High Court will decide today whether a former business partner of the Co Donegal nightclub owner Frank Shortt may give evidence for the DPP against Mr Shortt's application for a certificate declaring a miscarriage of justice in his case.
Mr Shortt served a three-year prison sentence after being convicted in 1995 of knowingly allowing the sale of drugs at his Inishowen nightclub, the Point Inn, in 1992. His conviction was quashed in November 2000 with no opposition from the DPP.
In a hearing which entered its 15th day at the Court of Criminal Appeal yesterday Mr Shortt is seeking a certificate declaring a miscarriage of justice arising from his conviction. A certificate would enable him to sue the State for compensation.
Yesterday, Mr Edward Comyn SC, for the DPP, said that the DPP wished to call evidence from Mr Colm Quinn, a former business partner of Mr Shortt. Mr Eoin McGonigal SC, for Mr Shortt, objected, arguing that Mr Quinn's evidence was both inadmissible and irrelevant.
The court was told that Mr Quinn's evidence related to a conversation he had with Mr Shortt in 1993 in which, Mr Quinn said, he had drawn Mr Shortt's attention to people selling drugs at the Point Inn. Mr Quinn had alleged in a statement that Mr Shortt had said: "You've got to turn a blind eye to that if you want to make money."
Mr Comyn argued that the ordinary rules in relation to the admissibility of evidence did not apply at applications for certificates declaring a miscarriage of justice. He argued that Mr Quinn's evidence was admissible in that it went to the heart of the way Mr Shortt's business was run and to Mr Shortt's general attitude to his business.
Counsel submitted that evidence which related to the issue of innocence was admissible in applictaions for a certificate declaring a miscarriage of justice. Where there was evidence which went towards the improbability of innocence, the court had to consider it. Where a person was improbably innocent, it was never intended that they should be compensated.
Mr McGonigal said that Mr Quinn's statement offered no evidence relevant to the period in 1992 from which the charges against Mr Shortt arose, but related to two periods in 1993 when Mr Quinn had visited Mr Shortt's premises. On one of those occasions, Mr Quinn alleged that he had a conversation with Mr Shortt. Mr Quinn was attacking Mr Shortt's character in relation to that.
The time when the CCA might consider Mr Quinn's evidence was when it was considering whether the conviction should be set aside, but this was an unusual case in that Mr Shortt's conviction was set aside by consent, counsel said.
Mr Justice O'Higgins said that the DPP had not opposed the quashing of the conviction and asked was that the same as consenting to it being quashed. Mr McGonigal said that there was no material distinction.
This was a completed criminal matter. To introduce new evidence now was equivalent to seeking to set aside the withdrawal of a conviction, counsel said. A miscarriage of justice was determined once a conviction was quashed. If there was material irregularity in the conduct of a trial, that was a miscarriage of justice, and the person was entitled to compensation.
In such circumstances, the issue of a person's innocence or otherwise could arise only when determining the level of compensation, counsel argued. He would argue that Mr Quinn's evidence would also be inadmissible in any determination of the level of compensation to be paid.
Mr Justice Hardiman, presiding, said that the court would consider the submissions overnight and give its decision today on the application to call Mr Quinn.
