The New Evidence in The Sallins Case

Derek Dunne examines the new information which has come to light in the Sallins case.

Justice Minister Michael Noonan has said mat he will not review the case of Nicky Kelly, a man serving a twelve year sentence in Portlaoise :oc robbing the Sallins mail train in 1916. unless new evidence becomes available. At a press conference on 30 October last, a man called John Fitzpatrick came. forward and said he had just such evidence. At the time of writing, Michael Noonan has not responded to this.

Fitzpatrick produced sworn affiidavits from three people to the effect that he had spent the night of the robbery in a house in Castleconnell, County Limerick. The strange thing was, that there remained on the Book of Evidence used in Nicky Kelly's case, a statement signed by Fitzpatrick implicating himself in the robbery.

There are also two alleged verbal statements amounting to confessions also attributed to Fitzpatrick, conntained in the statements of four Gardai. A signed statement and alleged verbal statements were the sole basis for Kelly's conviction. Yet Fitzpatrick, as a man against whom there was preecisely the same evidence as Kelly was never charged to appear before the Special Criminal Court, while Kelly remains in Portlaoise Prison. No reason has ever been offered for this.

John Fitzpatrick was arrested under Section 30 of the Offences Against the State Act 1939, at 9.45am on Monday 5 April 1976. He was taken from Monaghan. town to Ardee and handed over to plain-clothes detectives who then brought him to the Bridewell Garda Station in Dublin. According to Garda statements on the book of Evidence, Fitzpatrick was questioned intermittently for a period of about eighteen hours on the Monday, Tuesday, and early Wednesday morning.

At 12.30 am on the Wednesday morning Fitzpatrick is alleged to have made a STatement which amounts to an alibi for the night of the robbery. It remains on the Book of Evidence and it is unsigned. At 8.30am on the same morning, Fitzpatrick signed a statement which amounted to a confession But John Fitzpatrick alleged afterwards, as did Michael Plunkett, Brian McNally, Osgur Breathnach and Nocky Kelly, that they had been brutalised by members of An Garda Siochana, that their "statements" had been concocted by the Gardai, and that they had been forced to sign them in order to avoid further beatings.
Fitzpatrick, Kelly, Plunkett and MeeNally made an appearance before a Special Sitting of the District Court at 10.30pm on the Wednesday night where an extraordinary remand took place, a remand back into Garda custody for one day only. They were then placed two to a cell for the night (contrary to the Rules for the Goverrnance of the Bridewell which say that prisoners similarly charged should be kept segregated) before making a furrther appearance the following morning. Here they were remanded into the cusstody of the Governor of Mountjoy Prison.

All of the accused were examined by two doctors in Mountjoy that evening. A statement from one of the doctors states that the injuries found on Fitzpatrick "could have been caused by the treatment alleged". All the accused in the Sallins case made court appearance between April and Decem ber 1976 but they were disscharged in that month because of the failure of the prosecution to produce a Book of Evidence against them.

Eight days later, Breathnach, MeeNally, Plunkett and Kelly were charged "to appear before the Special Criminal Court on a new set of charges. But Fitzpatrick was never re-charged desspite the fact that there were two verbal statements and one written statement all allegedly made by himmself, and all remaining on the Book of Evidence. It is worth noting here that Brian McNally. was afterwards comted on the basis of alleged verbal stateements alone. His signed statement was never proferred in evidence against him.

The question 'then arises as to why Fitzpatrick was never re-charged with the others despite the apparent dammning evidence against him. There is a plausible explanation for this and it is the following: When Fitzpatrick was questioned by detectives in Dublin as to his whereabouts on the night of the rob bery , he stated that he had spent the night with the Hayes family in Limerick. The family say that detecctives called to the house and were told that Fitzpatrick had spent the night there. But two days later, detectives again called to the house, arrested three members of the family under Section 30 of the Offences Against the State Act 1939, and took them to Limerick.

During their detention, they say they were questioned, not about the robbery itself, but about Fitzpattrick's presence in the house on the night of the robbery. They also say that the entire thrust of Garda ennquiries focused on attempting to get them to retract on what they had said two days previously in relation to Fitzpatrick being in their house on the night of the robbery. They say also that they were threatened with charges themselves, and verbally abused when they refused to do this. One member of the family was held for forty-six and a half hours. Had Fitzzpatrick been charged to appear before the Special Criminal Court, he would have had three witnesses to testify to the fact that he had spent the night of the robbery in a house one hundred miles from the scene. In the light of this, the credibility of Fitzpatrick's written and verbal "admissions" would have been called into question, and it would lend weight to the contention that the statement had been concocted' and that he had been forced to sign it. But there is a further significance in all of this.

In McNally's verbal statements, which were the sole basis for his connviction, Fitzpatrick is named as a participant in the robbery. If Fitzzpatrick could prove that he was noowhere near the scene of the robbery, then the credibility of ~lc:'\ally's statements would have to be called into question. (McNally's conviction was afterwards quashed by me Court of Criminal Appeal as it could not be shown that there was sufficient reason why his statements had been taken in breach of the Judces Rules.) But

Fitzpatrick is also named in Nicky Kelly's statement as a participant in the robbery. Had Fitzpatrick been charged and this statement challenged by the appearance of three alibi wittnesses, Kelly's statement would possibbly have been viewed in. a. different light. The credibility of all statements alleging that Fitzpatrick had particiipated in the robbery would have been called into question, and the entire case against Kelly and his co-accused would have been considerably weakened. This would have profound immplications for the prosecution case, based solely on statements.

But the fact remains that precisely the same evidence exists against John Fitzpatrick as exists against Nicky Kelly, and that Fitzpatrick was never charged even though he was named by two people as having played a part in the robbery. No reason has ever been offered for this. The case of Nicky Kelly gets curiouser and curiouser. •