Sunday 17 December 2017

Case hinged on witness who was too hard to trust

Dearbhail McDonald

Dearbhail McDonald

THE widely predicted acquittal of Alan Wilson is a crippling blow to the Rostas family and to gardai who fought relentlessly to obtain a murder conviction.

It took less than three hours for a jury to return a unanimous verdict of not guilty: now nobody stands convicted of her murder.

We cannot pierce the veil of a jury verdict.

But we can safely assume that the jury was less than impressed by the State's reliance on the testimony of Fergus O'Hanlon, the latest 'supergrass' to hit our courts.

O'Hanlon, like Wilson who is serving a seven-year jail term over a meat cleaver attack, is a violent criminal.

Granted immunity from prosecution, O'Hanlon had – according to the prosecution – already gotten away with the crime of assisting Marioara's alleged killer when he decided to help gardai.

It was the State's case that Wilson murdered Marioara and that O'Hanlon was an accessory after the fact.

Both men, who lived in the same house when Marioara disappeared in January 2008, were arrested shortly afterwards.

But it was not until late 2011, when O'Hanlon was being interviewed by gardai over a suspected conspiracy to murder a journalist, that he offered to help gardai "off camera" with the Marioara investigation.

O'Hanlon led gardai in January 2012 to the shallow grave on the Wicklow border where the child's naked, mummified remains had lain for four years. He said he helped Wilson bury the body.

So, where did it all go wrong? At heart, the State's case failed because it relied upon the uncorroborated evidence of Wilson, described by defence lawyer Michael O'Higgins SC as a "cold, manipulative liar".

O'Hanlon was a beneficiary of the Witness Protection Programme (WPP), which has never been placed on a statutory footing.

Vast tracts of the Marioara trial took place away from public view as it diverted into legal argument in the absence of the jury.

But it was in those 'trials within a trial' that we gained vital insights into the operation of the WPP and learnt that gardai destroyed the original notes of meetings held with O'Hanlon as part of his involvement with it.

"Key-word" notes of the meetings were taken and replaced later with more comprehensive documents – an apparent policy when dealing with the protected.

Garda recruits are told from day one of their training of the sanctity of contemporaneous notes, and I wonder what the rationale for shredding these first drafts was?

Wilson's defence fought hard for details of the WPP and the presiding judge, Mr Justice Patrick McCarthy, visited Garda HQ to review O'Hanlon's file.

It was through disclosure that the court learned that O'Hanlon, an alcoholic who received routine doses of methadone, went on the rampage while in the programme.

He trashed three apartments provided by the WPP and enjoyed its fruits whilst threatening to disclose details of the programme – and personal details of investigating gardai – to his criminal brethren.

I have untold sympathy for the gardai who were dealing with O'Hanlon, described by Mr O'Higgins as a very volatile person who was uncontainable if he didn't get his own way.

O'Hanlon's credibility buckled when it emerged that he previously faked a shooting and described another as having occurred in two different places.

He told gardai that he had been abducted and shot in the stomach in March 2000, but forensic examination of the bullet showed marks consistent with it being forced from its shell with a tool rather than being fired from a gun.

O'Hanlon got his own way when he refused to line up in a formal identity parade, ostensibly because he was in fear of Wilson.

He denied that he refused because there was a good reason to believe he would be picked out as the driver of the Ford Mondeo that ferried Marioara to her tragic fate.

O'Hanlon denied driving the Mondeo and also denied resembling a photo-fit of the man seen driving her away – even though gardai used this likeness to extend his detention when O'Hanlon was arrested on suspicion of withholding information.

The circumstances giving rise to the grant of immunity were also a major feature of the case. Gardai denied that O'Hanlon received preferential treatment or demanded immunity in return for a statement against Wilson.

But this is at odds with garda evidence that O'Hanlon received a suspended sentence for District Court offences some weeks after his Damascene conversion after a superintendent told the judge that he was assisting in a murder investigation.

It is also at odds with notes of a memo taken by O'Hanlon's former solicitor where she had written that O'Hanlon had asked for immunity if he made a statement against Wilson and showed them where the body was buried.

Closing the case, prosecutor Sean Gillane SC said that, given the context, O'Hanlon's evidence was never going to come from an altar boy – Mr O'Higgins told the jury that O'Hanlon gave them 'a masterclass in perjury'.

Charging the jury, Judge McCarthy issued a stern warning of the dangers of convicting on the basis of O'Hanlon's uncorroborated evidence, the classic threat posed by the supergrass.

There is a rationale and logic to the jury's verdict. But Lady Justice has produced no winners. A little girl is dead, subjected to a brutal, terrifying death.

Questions remain about the handling of informants and how the process of granting immunity from prosecution can be improved.

That is for another time.

For now, our sympathies extend to the Rostas family and gardai – whose search for justice, like Marioara's short life, has come to a tragic end.

Irish Independent

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