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Friday 22 August 2014

Surgeon awarded €50k for unlawful garda search of home

Tim Healy

Published 09/07/2013 | 17:06

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A RETIRED orthopaedic surgeon and his wife have been awarded €50,000 for trespass over an early morning search of their home by gardai seeking to interview their son about a fatal road accident.

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Dr Eshwarprasadh Kessopersadh (74) and his wife Patricia (67) were awarded compensatory damages for distress and anxiety after the High Court found gardai unlawfully entered their Dublin home nearly nine years go looking to arrest their son Roshen for the purpose of him making a statement about the accident.

The Kessopersadhs, who have eight children, claimed the gardai did not have reasonable cause or a warrant to entitle them to search their home at Springfield Drive, Templeogue, on August 11, 2004.

They said they had previously told gardai that Roshen, who was 22 at the time, would be out of the country on holidays and that their son would only be making a statement about the accident in the presence of their solicitor.

They sued Sgt Geroid Keating and two other Traffic Corp officers with him on the search, along with the Minister for Justice, Ireland and the Attorney General.

The defendants denied their claims and argued they were entitled to search the house as they were seeking to arrest Roshen at the time on suspicion of dangerous driving causing death.

He was later charged with the less serious offence of careless driving and acquitted in the District Court.

The court heard the search arose out of a garda investigation into an accident the previous March 14 when pedestrian Laurence O'Neill died after he was knocked down by a car driven by Roshen on the Templeogue Road, just 600 yards from the Kessopersadhs' home.

An expert report established Roshen was driving within the speed limit and that his view of Mr O'Neill was obscured by the shadow thrown by trees on the road and the fact the deceased was wearing dark clothes.

Blood tests on the deceased showed Mr O'Neill was intoxicated with a reading four times the legal driving limit, the court also heard.

During subsequent months there was contact between the Kessopersadhs and gardai who were told Roshen would be travelling to New Zealand in the summer to visit his sister. Gardai were also told by the family's solicitor that he (Roshen) would not be making a statement.

A week after Roshen had left for New Zealand, the gardai, in an unmarked car and dressed in half uniforms, called to the Kessopersadh home at 6.30am. They carried out a search saying they did not need a warrant despite protests from Dr Kessopersadh.

The central issue in the case was whether the gardai had reasonable cause to believe the accident involving Roshen constituted an arrestable offence entitling them to enter the house without a warrant, the court heard.

The court also heard there was disagreement between senior officers over whether Roshen should have been charged with dangerous or careless driving.

Awarding the doctor and his wife €50,000, Ms Justice Iseult O'Malley said Sgt Keating, who led the search team, had not established an objectively justifiable suspicion for carrying out the search.

It was quite clear that all of the gardai involved in the investigation, to a greater or lesser extent, "felt some frustration" that Roshen had exercised his right not to make a voluntary statement, the judge said.

She concluded there was no reasonable cause for a suspicion that Roshen was gulity of dangerous driving causing death.  The intended arrest was for the purpose of finding out what Roshen might say rather than being based on a genuinely held suspicion and this was not a proper ground for arrest.

The judge did not consider this a case where exemplary or punitive damages were called for and she did not see anything particular in the behaviour of the gardai that was worthy of condemnation. The defence of the action had not been run in such a way as to cast aspersions on the characters of the Kessopadhs, the judge said.

There was a failure to apologise but the judge did not think that on its own could entitle them to aggravated damages.

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