THE High Court has struck out an action for damages brought by the widower of murdered mother of two Sylvia Roche Kelly.
The body of Ms Roche Kelly, from Sixmilebridge, Co Clare, was found lying face down in the bath of a hotel in December 2007, after she met her murderer while out celebrating her 33rd birthday. She was violently beaten and strangled.
Gerard McGrath Ballywalter, Knockavilla, Co Tipperary, was later sentenced at the Central Criminal Court to life imprisonment after admitting murdering Ms Roche Kelly at The Clarion Hotel, Limerick, on December 8th, 2007.
McGrath was on bail at that time on a charge of assaulting a female taxi driver in April 2007.
Her widower Lorcan Roche Kelly from Sixmilebridge Co Clare sued on behalf of his two children the State and other parties including the Garda Commissioner and Minister for Justice, for damages alleging his wife's killer was "free to commit the crime of murder when he should have been in custody."
He claimed the failure and inaction of the defendants, in the context of a bail application, to inform the relevant court of certain other offences with which McGrath had been charged caused or contributed to the fact he was at large and on bail when he should not have been.
The defendants denied all claims.
This morning High Court President Mr Justice Nicholas Kearns, ruling on a pretrial motion brought by the State to dismiss the action, said "this was a tragic case".
However the judge added that "on the basis of the existing law in this jurisdiction it was not a case that could be successful," and struck out the action.
In his ruling Mr Justice Kearns said the court was "compelled, notwithstanding the many disturbing aspects of this case which would hopefully result in an appropriate investigation elsewhere, to dismiss the plaintiffs claim."
He said the case was not being dismissed "on some supposed blanket immunity" but because of long established common law principles. Based on the facts of what was "a most unfortunate case" the Judge said a duty of care could not be deemed to have arisen.
The matter was adjourned to allow the parties consider his ruling.
The State, in its preliminary application heard last November, asked the High Court to strike out the case claiming the action disclosed no reasonable cause of action. It contended the Mr Roche Kelly's action was "bound to fail".
In its submissions to the court it argued Ms Roche Kelly was an unfortunate woman killed by McGrath but there was no special connection he contended between the killer and his victim that gave a particular rise to a duty of care. Ms Roche Kelly was not a complainant and had no prior connection to McGrath.
There were no special circumstances in the Roche Kelly case and it was not foreseeable that McGrath would kill Ms Kelly Roche, it further submitted.
Lawyers for Mr Roche Kelly opposed the application and argued that the claim should be allowed proceed to a full hearing before a High Court judge.
Previously the court had heard the main issue in Mr Roche Kelly's action was that the killer was on bail at the time of the murder. It was argued the gardai did not present a case opposing bail and McGrath was granted his liberty and as a result at large.
McGrath was charged with assault on a female taxi driver in Co Cavan in April 2007 and was admitted to station bail and later remanded on continuing bail.
In October 2007 McGrath was accused of the false imprisonment of a child in Co Tipperary and was later given bail at Limerick District Court.
Gardaí objected to bail but did not bring the case of the assault on the taxi driver to the attention of the judge. Virginia District Court was not told on 3 December 2007 that McGrath was charged with the false imprisonment of the girl.
Ms Roche Kelly was murdered five days later.
In January 2008 McGrath pleaded guilty to the assault of the taxi driver for which he got nine months. That same month he was given a mandatory life sentence for Ms Kelly Roche's murder and in February 2008 he was sentenced to ten years for the Tipperary abduction to run concurrently with the life sentence.