A convicted murderer has brought an appeal against conviction on grounds that gardaí “harvested” evidence from him after telling his solicitor he was in custody on foot of a separate matter.
John Walsh (49), with an address at Cork Street, Mitchelstown, Co Cork, had denied murdering John McManus at a flat on Wellington Road, Cork City on a date unknown between October 28 and November 7 2008.
He was found guilty by a jury at a Cork sitting of the Central Criminal Court and given the mandatory life sentence by Mr Justice Paul Carney on December 9 2010.
Moving an appeal against conviction today, Patrick Gageby SC, for Walsh, submitted to the Court of Appeal that gardaí had a strategy of not telling Walsh's solicitor “what they were about” when they arrested him.
Mr Gageby said Walsh's solicitor, Frank Buttimer, had been told Walsh was arrested on foot of a bench warrant and failing to display a valid NCT certificate. However, while he was in custody he gave up five tranches of material evidence related to their murder investigation.
It was a strategy to steal a march on the accused, Mr Gageby said, and to deprive him of legal advice when the gardaí were “harvesting” a substantial amount of evidence for their murder investigation.
Counsel cited last year's Supreme Court ruling known as Gormley, which found that suspects are reasonably entitled to meaningful legal advice prior to being interrogated. Mr Gageby stressed the concept of "meaningful legal advice" in his submission and said that was no longer satisfied by the garda saying 'I told him' about his rights to reasonable access to a solicitor.
The court heard that Walsh consented to having his clothes examined by gardaí while in custody after Mr Buttimer was told his client had been arrested on foot of a bench warrant and having no NCT.
On the following morning when Walsh was being transported to the District Court in a patrol car, he made remarks about what had happened on the night Mr McManus met his death.
Walsh told gardaí in the patrol car, the court heard, that he had “fucked up badly this time”. He told them that McManus owed him €500 and was telling him lies, He went on to tell gardaí “look man, I better say no more, the solicitor told me to say fuck all,” the court heard.
Counsel for the Director of Public Prosecutions, Marjorie Farrelly SC, said the member in charge of the garda station where Walsh was processed advised him of all of his rights and entitlements including his right to reasonable access to a solicitor.
Walsh was also given a C72 form and he signed the custody record to aknowledge he had been so advised, Ms Farrelly said.
She said Walsh requested that a solicitor be contacted and not just any solicitor, but a solicitor who had assisted him in a previous matter, Mr Frank Buttimer. They spent 15 minutes on the phone and “nobody knows the precise conversation that occurred for that 15 minutes”.
Ms Farrelly said at the time of Walsh's arrest, the gardaí were not aware that a murder had been committed or that the accused had anything to do with it.
She said the situation was evolving quite quickly. The body of the deceased was found in highly suspicious circumstances while Walsh was in custody and blood was found in the boot of Walsh's car which was seized for having no NCT.
In response, Mr Gageby said the harvesting of evidence occurred after Walsh's conversation with his solicitor.
Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice John Edwards, said the Court of Appeal would reserve judgment to a date “as soon as possible”.