Breathnach v Ireland

JurisdictionIreland
JudgeMr. Justice Lardner
Judgment Date18 July 1989
Neutral Citation1989 WJSC-HC 907
Docket NumberNo.4021p/1982,[1982 No. 4021P]
CourtHigh Court
Date18 July 1989
BREATHNACH v. IRELAND

BETWEEN

OSGUR BREATHNACH
PLAINTIFF

AND

IRELAND, THE ATTORNEY GENERAL, AND JOSEPH EGAN, THOMASFITZGERALD, JOHN MURPHY, THOMAS DUNNE, WILLIAM MAHER, GERARD O'CARROLL,JAMES BUTLER, MICHAEL EGAN
DEFENDANTS

1989 WJSC-HC 907

No.4021p/1982

THE HIGH COURT

Synopsis:

ACTION

Issue

Estoppel - ~Res judicata~ - Assault - Criminal trial - Finding of fact - Accused not assaulted - Subsequent civil action - Damages for assault claimed by former accused - Civil action dismissed - (1982/4021 P - Lardner J. - 18/7/89)

|Breathnach v. Ireland|

EVIDENCE

Estoppel

Issue - ~Res judicata~ - Criminal trial - Special Criminal Court - Particular issue - Assault by police on accused - Finding that no assault occurred - Damages for assault claimed by accused in subsequent civil action - Claim in civil action dismissed - ~Kelly v. Ireland~ [1986] ILRM 318 considered - (1982/4021 P - Lardner J. - 18/7/89)

|Breathnach v. Ireland|

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S30

KELLY V IRELAND & AG 1986 ILRM 318

HUNTER V CHIEF CONSTABLE OF WEST MIDLANDS 1981 3 AER 727, 1982 AC 529, 1981 3 WLR 906

MCILKENNY V CHIEF CONSTABLE OF THE WEST MIDLANDS 1980 2 AER 227

REICHEL V MCGRATH 14 AC 668

1

Judgment of Mr. Justice Lardner delivered the 18th day of July, 1989.

2

This matter comes before me as the trial of a preliminary issue in proceedings instituted by the Plaintiff by plenary summons, claiming damages against the Defendants for assault and battery, false imprisonment, intimidation, malicious prosecution and failure to vindicate his constitutional rights. The wrongful acts alleged are claimed to have been committed when he was arrested by the third Defendant and subsequently while he was in custody. It is not in dispute that the Plaintiff was arrested on the 5th of April 1976 by the third Defendant a member of the Garda Siochana under Section 30 of the Offences Against the State Act 1939and detained at the Bridewell Garda Station for approximately 48 hours for the purpose of Garda enquiries in relation to an armed robbery on a mail train at Palmerstown, County Dublin on the 31st of March 1976. The Plaintiff alleges in his Statement of Claim that while in custody at the Bridewell on the 7th of April 1976 he was wrongfully assaulted and beaten by the fourth and fifth Defendants, members of the Garda Siochana. Later on the same day he alleges he was further assaulted and beaten by the fourth Defendant. He pleads that as a result of these assaults and beaten by the fourth Defendant. He pleads that as a result of these assaults and batteries and in fear of such assaults the Plaintiff signed against his will a document purporting to be a confession of involvement in the robbery of the mail train on the 31st of March 1976 and that in fear of further assaults he repeated this purported confession verbally to the seventh, eighth and ninth Defendants later on the same date. He alleges the said confession was untrue and was extracted from him by oppression and violence. He then pleads that on the 7th of April 1976 he was released fromunlawful imprisonment and was thereupon wrongfully arrested and falsely imprisoned within the Garda Station by the tenth named Defendant. He alleges that on the 5th or 6th of April in accordance with his constitutional rights he requested a member of the Garda Siochana to obtain for him the services of a certain solicitor and this request was wrongfully neglected and ignored. And he further alleges that on or about the 7th, 8th and 9th days of April 1976 the fourth, fifth, sixth, seventh, eighth and ninth Defendants, maliciously and without reasonable and probable cause, caused the Plaintiff to be prosecuted by causing false informations to be put before the Director of Public Prosecutions who in consequence had charges of armed robbery of a mail train near Sallins on the 31st of March 1976 and conspiracy to commit armed robbery of the said train preferred against the Plaintiff in the Dublin Metropolitan District Court. The Plaintiff subsequently instituted these proceedings by Plenary Summons and Statement of Claim to which I have referred. By their respective defences the Defendants deny the wrongful acts complained by the Plaintiff and then plead that the issues raised in these proceedings in relation to the allegations of ill-treatment, assault, battery, wrongful imprisonment, oppression, inducement of fear and violence were raised and adjudicated upon in the course of certain proceedings before the Special Criminal Court and were properly and lawfully determined beyond any reasonable doubt against the Plaintiff and that the Plaintiff's claim in these proceedings is to that extent res judicata as between the Plaintiff and the Defendants. Alternatively the Defendants plead that the Plaintiff is estopped from raising or litigating such matters as were determined as aforesaid by the Special Criminal Court.

3

On the 12th of January 1987 Mr. Justice MacKenzie ordered that a preliminary issue be tried whether the issues raised by the Plaintiff in the pleadings in this action are res judicata and whether the Plaintiff is estopped from now raising such issues. In accordance with directions given in this Order a Statement of Claim was delivered by the Defendants pleading that the Plaintiff was estopped from raising these issues and defences were delivered by the Plaintiff inter alia contesting that there was any estoppel, denying that the first and second Defendants and other Defendants were in privity with the prosecution in the proceedings before the Special Criminal Court. The Defendants claim, in my view correctly, that the issues raised in the Plaintiff's civil action for damages relating to assault and battery, false imprisonment, malicious prosecution and failure to vindicate constitutional rights were raised by the Plaintiff at his trial before the Special Criminal Court....

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