TWO MEN who had served terms of imprisonment by the time their convictions were quashed last year yesterday began a Supreme Court hearing which, if successful, would allow them to apply for compensation from the State.
Mr Joseph Grogan and Mr Joseph Meleady, both 28, were convicted in 1985 of assaulting Mr Eamon Gavin and causing malicious damage to his car at Cremore, Templeogue, Dublin, on February 26th, 1984.
The Court of Criminal Appeal quashed the convictions and refused a retrial. Yesterday it asked the Supreme Court to decide if it had erred in refusing to grant a certificate to allow the men to apply for compensation.
In the Court of Criminal Appeal judgment last year, Mr Justice Keane said it had been argued that evidence as to the location of a fingerprint on the stolen car together with a memo - the "Walker memorandum", written by a solicitor in the Chief State Solicitor's office - were both newly discovered facts which should have been disclosed to the defence lawyers.
Mr Justice Keane said the Court of Criminal Appeal was satisfied that non disclosure to the defence of the location of a fingerprint before the first trial rendered the conviction unsafe and unsatisfactory.
The Walker memo stated that a garda had mentioned that Mr Gavin had asked for, and had seen, a book of photographs, and had identified one of those accused. Mr Justice Keane said both the garda and Mr Gavin, during the trials, had denied that the garda showed photographs to Mr Gavin. The Court of Criminal Appeal was satisfied the non disclosure of the memo to the defence rendered the conviction unsafe and unsatisfactory.
The Court of Criminal Appeal's refusal of a certificate was based on the fact that the guilt or innocence of the accused men had not been determined at a trial where non disclosed material would have been available to those accused.
Mr Grogan completed a five year jail sentence. Mr Meleady absconded from St Patrick's Institution after a year, but was arrested in England and returned to serve his sentence. Three weeks before he was due to finish his term in October 1990 he had accepted an offer from the then Minister for Justice, Mr Ray Burke, of temporary release without prejudice to his case.
Yesterday, Mr Barry White SC, on behalf of the two men, submitted to the Supreme Court that the CCA erred in construing the terms of Section 9 of the Criminal Procedure Act 1993 by effectively confining the issuing of a certificate to persons who could positively establish their innocence.
Mr White said that inherent in quashing a conviction was a reassertion of a person's presumption of innocence in the past. The term "miscarriage of justice" in the legislation had to be construed as focusing on an examination of the trial process rather than be used as a vehicle to seek to establish guilt or innocence.
The hearing continues today.