An application by a Co Donegal night-club owner for a certificate declaring a miscarriage of justice in his case has been adjourned to next month because of difficulties experienced by the DPP in getting instructions from two senior gardaí about whether they are denying certain allegations made against them.
The Court of Criminal Appeal has heard allegations from two Co Donegal women, Ms Adrienne McGlinchey and Ms Sheena McMahon, including allegations that Det Garda Noel McMahon had told them he had perjured himself during the trial of Mr Frank Shortt. Ms McMahon also alleged Det Garda McMahon (her estranged husband) had told her he had committed perjury to help get Insp (now Supt) Kevin Lennon, promoted.
Mr Shortt served a three-year prison sentence after he was convicted in 1995 of allowing his night-club, The Point Inn, Inishowen, to be used for the sale of drugs. The conviction was overturned in November 2000 with no opposition from the DPP. Mr Shortt is now seeking certification of a miscarriage of justice.
After some cross-examination of Ms McGlinchey yesterday, Mr Edward Comyn SC, for the DPP, indicated that, without instructions from certain witnesses, he was unable to conduct further cross-examination and asked for an adjournment. He had tried to get instructions but had found it very difficult.
He could not get instructions as to whether he should put to witnesses whether certain things were not true. He had now received certain information but needed time to look through it to see if it was relevant.
Mr Justice Hardiman, sitting with Mr Justice O'Donovan and Mr Justice O'Higgins, said it was clear the witnesses involved were Det Garda McMahon and Supt Lennon, both formerly attached to Buncrana Garda station. He added that the thrust of what Ms McGlinchey had said had been available to the DPP for some time.
Mr Comyn said what Ms McGlinchey had told gardaí, according to his instructions, had turned out to be quite different from what she had said in the witness box.
Mr Eoin McGonigal SC, for Mr Shortt, said he would not oppose the adjournment in the circumstances. However, he noted, the entire discovery in the case, including statements of Ms McMahon and Ms McGlinchey, had been exclusively available to the DPP for some years.
Mr Justice Hardiman said neither Det Garda McMahon nor Supt Lennon, "up to now and for some time", had been available to give instructions to the State Solicitor.
Apart from some differences between what Ms McGlinchey had said in the witness box yesterday morning and yesterday afternoon, everything else she had said had been available for a number of years to the DPP, the judge noted. The "unvarying thing" she had said was that she was asked by Det Garda McMahon to buy drugs and plant them in the Point Inn but that she had not done so.
In order to be able to cross-examine Ms McGlinchey on that, Mr Comyn required instructions from certain people not available to him, the judge noted.
The court said it would adjourn the case to June 4th. Prior to that, the DPP is to inform the court on May 29th whether it is intended to recall certain witnesses to be cross-examined.
Earlier yesterday the court also directed that the DPP inform it of the reason for deciding not to oppose the quashing of Mr Shortt's conviction. Ms Miriam Reynolds SC, for the DPP, indicated this was as a result of allegations made by Ms McGlinchey and Ms McMahon in statements which were disclosed in the Carty report on allegations of corruption against gardaí in Co Donegal.
Ms Reynolds said a further statement of Ms Sheena McMahon, dated September 15th, 1999, in which Ms McMahon said her husband, Det Garda McMahon, had told her he committed perjury during Mr Shortt's trial, was not available for the consideration process that led to the decision not to challenge the application to quash the conviction. That latter statement was forwarded by the Carty team but only received by the DPP's office on October 31st, 2000.
Ms Reynolds said the allegations made in the statements referred to were unproven and remained allegations only. These allegations were not, however, in existence at the time of Mr Shortt's trial, and the DPP considered it was appropriate and fair to consent to the application to quash the conviction.
Mr Justice Hardiman remarked that Ms Sheena McMahon had given unchallenged evidence in the present hearing that her husband had told her he committed perjury during Mr Shortt's trial. Mr Comyn said he had been unable to get instructions to challenge that evidence. It appeared Ms McMahon's claim had not been dealt with during the interrogation of Det Garda McMahon.
The judge asked if counsel was saying Det Garda McMahon had never been confronted with an allegation made in a statement which had been with the authorities since October 2000. "Apparently not," Mr Comyn said.
