Sixteen years after their convictions, the Court of Criminal Appeal yesterday certified a miscarriage of justice in the case of the Tallaght Two - Mr Joseph Meleady and Mr Joseph Grogan. The men will now pursue a claim for compensation against the State. Mr Justice Geoghegan, sitting with Mr Justice Kearns and Mr Justice Murphy, said the case, which arose from the theft of Mr Eamon Gavin's car in 1984, had "a quite extraordinary history". Mr Gavin had jumped on the bonnet and was carried at speed before getting off after being threatened with a petrol can and hit with an umbrella.
In the 17 years since then, the case has been the subject of two trials, three hearings before the Court of Criminal Appeal, a Supreme Court hearing, two perjury trials and internal investigations by the gardai, the DPP and the Chief State Solicitor.
Yesterday, while stating the court had "nothing but sympathy" for Mr Gavin who had had a "horrific experience", Mr Justice Geoghegan said he hoped Mr Gavin would appreciate the court was deciding, under the Criminal Procedure Act (CPA) 1993, whether newly discovered facts were tantamount to proving a miscarriage of justice.
The certification is the first under the CPA and was granted on the basis of a document, the Walker memorandum, written in May, 1984, before the men's first trial but not discovered until 1991. The discovery was made by a senior solicitor in the Chief State Solicitor's office who, in the wake of media controversy as to the correctness of the men's convictions, was asked to investigate.
The memo was not disclosed to the men's solicitor, Mr Greg O'Neill, until 1994, in the context of proceedings under the CPA to have their convictions quashed and a miscarriage of justice certified.
Because of a conflict between the memo's author, a State solicitor, Mr Richard Walker, on the one side and gardai and Mr Eamon Gavin on the other over the contents of the memo, the court held the trial judge would have had to exclude the identification evidence against Mr Meleady and Mr Grogan, the only evidence against them, and therefore their trial could not have proceeded.
The court said it was not making a finding one way or another as to the truth of the Walker memo but a trial judge would be bound to hold there was "a real danger" its contents were true.
The memo stated that Sgt Patrick Thornton (the prosecuting garda in the case) had said photos were shown to Mr Eamon Gavin and he had identified one of the accused prior to his identification of Mr Meleady and Mr Grogan at Rathfarnham courthouse as the driver and front-seat passenger. Mr Gavin and gardai had denied any photos were ever shown.
The court rejected arguments by Mr Patrick MacEntee SC, with Mr Barry White SC, for the men, that their trials were unconstitutional because of the alleged suppression of essential information. In the absence of proof of deliberate suppression of information, the court did not consider the constitutionality of the trials could be questioned.
Mr Meleady and Mr Grogan were both jailed for five years in 1985 after being convicted of an assault on Mr Eamon Gavin and causing malicious damage to his car. Another man, Brendan Walsh, later pleaded guilty to, and was jailed for, the assault of Mr Gavin and the theft of his car. Mr Walsh has consistently stated he was the front-seat passenger in the car. In the Court of Criminal Appeal last month, he alleged two other men - whom he named as Gordon Dunne and Paul McDonnell - were the driver and rear-seat passenger and insisted neither Mr Meleady nor Mr Grogan were in the car.
Mr McDonnell was convicted of perjury some years ago arising from his assertion that he was in the car.
The convictions of Mr Meleady and Mr Grogan were set aside by the Court of Criminal Appeal in 1995 after it found two new discoveries - confirmation that a fingerprint of Brendan Walsh was found on the inside of the front passenger window of Mr Gavin's car (and not in the back of the car as the State had contended at the original trial) and the Walker memorandum - rendered the convictions unsafe and unsatisfactory.
The men's lawyers were not aware of the true position of the fingerprint until after the men's second trial.
However, the court refused to certify a miscarriage of justice in the case on the grounds the two discoveries were not before the juries at the original trial and retrial of both men. On appeal, the Supreme Court found the Court of Criminal Appeal had erred in its reason for refusing the certificate and directed the appeal court to rehear the issue.
Yesterday, the CCA found that a trial judge would consider it unsafe to let the identification evidence go to a jury.
