Sunday 21 December 2014

Danger signs 
in the gardai's ethical and legal minefield

Dearbhail McDonald hails a
resounding act of justice but
criticism of some garda 
evidence as unsatisfactory raises more issues about the force

Published 20/07/2014 | 02:30

April Collins pictured at Limerick District Court.
April Collins pictured at Limerick District Court.
Wayne Dundon

IT gives me no joy to write this piece and it may even anger gardai who risk their lives on our behalf, some of whom are close friends.

Bear with me.

Last week saw the conviction, by the Special Criminal Court (SCC), of Wayne Dundon and Nathan Killeen for the brutal murder of Limerick businessman Roy Collins.

The conviction was universally welcomed as a resounding act of justice for his family who live abroad in the Witness Protection Programme, for the people of Limerick and the people of Ireland.

It was.

It was also hailed as an unequivocal win for the State and gardai in their arduous battle against the scourge of gangland crime.

I've my doubts about that.

This is because the non-jury court, twice in the course of its ruling, criticised as "unsatisfactory" certain evidence given by gardai.

Had the court not convicted the men on other evidence, it is arguable that this garda evidence could have jeopardised an already precarious prosecution.

One of those who testified in the trial was April Collins, a former partner of Ger Dundon, Wayne's brother. April is a sister of Gareth Collins, a key prosecution witness and supergrass whose evidence - the court ruled - did not "meet the standard of being capable of belief".

April is no angel.

In May 2011 she received a three-year sentence, suspended in its entirety, for intimidating a witness.

At the time of her conviction, she was disqualified from driving for five years. Despite her disqualification, she continued to drive and commit road traffic offences, her most recent in September 2013 when she had 23 summonses dealt with by way of a six-month suspended sentence.

But April's suspended sentence was not activated and she did not go to jail because no judge was ever informed by gardai of her previous conviction.

The garda sergeant who prosecuted Collins in the District Court said he thought the judge would only want to see her previous road traffic convictions.

He said he was unaware of Section 99 of the Criminal Justice Act 2006, which provides an automatic mechanism for the activation of suspended sentences.

When other gardai were asked, they said that they didn't know that a suspended sentence could be activated.

I find this incredible.

So too did the SCC which said the garda evidence was "unsatisfactory", concluding that it was more likely that the prosecuting gardai made a decision not to
bring it to the attention of the judge.

Did gardai make a strategic decision to keep mum on April in order to protect a witness, the trial or lives in Limerick itself?

That rationale, I could almost accept were it not for further criticism of the evidence of Superintendent Jim Ryan. Ryan, a former detective promoted to superintendent rank two years ago, was the officer in charge of the Roy Collins investigation, as well as the 2002 murder of Limerick bouncer Brian Fitzgerald, another entirely innocent victim.

The Roy Collins inquiry took an unexpected turn in April 2011 when Gareth Collins - then serving a seven-year jail term for demanding money with menaces - requested a visit from gardai.

Detective Garda John Farmer was sent to see Collins who told Farmer that Wayne Dundon called to his house on the night of the Brian Fitzgerald murder

Such was Collins's attention to detail, he recalled Wayne Dundon taking the insoles of his runners.

This was bullshit as Wayne Dundon was in prison on the night of Fitzgerald's death.

Collins, himself arrested as part of the Fitzgerald murder inquiry, also gave information about the Roy Collins murder.

Det Farmer duly took notes of his "key points" and relayed them to Ryan during a meeting.

Farmer, not stationed in Limerick at the time of the Fitzgerald murder, was sent back to take a formal statement from Gareth Collins on the Roy Collins murder only.

The criminal was never asked to make a statement in relation to his initial, incorrect account of Wayne Dundon's movements.

The very existence of Farmer's notes emerged only during the cross-examination, mid-trial, of Gareth Collins who had to be recalled to explain how he saw Wayne robbing his insoles.

His explanation this time around was that he saw nothing because he was hiding under his bed.

Was Collins not asked about Fitzgerald because it undermined his credibility and raised doubts about implicating Dundon in both murders?

The defence accepted that Farmer's notes had not been handed over by the prosecution due to a "mishap".

For his part, Supt Ryan said that the Roy Collins case was his then priority and he didn't recall Dundon's name being mentioned by Farmer in the meeting.

But the SCC found his evidence unsatisfactory.

"The most likely explanation for the lack of any step taken on this aspect is that Superintendent Ryan was fully aware, having been involved in the Brian Fitzgerald case from the start, that the allegation that Wayne Dundon was in Limerick and actively involved in the murder could not be true," said the three judges.

These are strong criticisms against senior gardai who have been granted endless legal powers, including emergency powers, in their fight against crime and terrorism.

They also come hot on the heels of another murder case last year where a Detective Sergeant admitted that he had operated outside the Covert Human Intelligence Source (CHIS) system when dealing with a supergrass that had been granted immunity.

These incidents speak to the undoubtedly complex legal and ethical landscapes gardai traverse when they risk their lives to protect ours. But in the wake of a series of garda controversies that torpedoed the careers of former Garda Commissioner Martin Callinan and Justice Minister Alan Shatter, does it also speak to a latent 
culture within the gardai of turning a blind eye to inconvenient facts?

Now, more than ever, with public confidence in policing at an all-time low, we must create robust mechanisms and an independent police authority to ensure that someone is guarding the guards -for their sake as well as ours.

Sunday Independent

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