DPP v Flannery

 
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1996 WJSC-CCC 3015

CENTRAL CRIMINAL COURT

DPP v. FLANNERY
D.P.P.
PLAINTIFF
FREDERICK FLANNERY
DEFENDANT

Synopsis:

CRIMINAL LAW

Prosecution

Duty - Breach - Information - Disclosure - Failure - Concealment of documents by gardai - Statements creating doubt about veracity of chief prosecution witness - Existence of documents emerged at trial of accused for murder - Possibility of fair trial irreparably damaged - Jury discharged and indictment stayed permanently - (Central Criminal Court - Barr J. - 25/6/96)

|The People v. Flannery|

GARDA SIOCHANA

Documents

Existence - Concealment - Trial - Abortion - Trial of accused on count of murder - Possibility of fair trial irreparably damaged - Indictment of accused restrained permanently - (Central Criminal Court - Barr J. - 25/6/96)

|The People v. Flannery|

1

Judgment of the Honourable Mr. Justice Barr delivered on June 25th, 1996.

APPEARANCES

Counsel for the Prosecution:

Mr. Haugh SC

Mr. Murphy BL

Instructed by:

Chief State Sols,

Dublin Castle,

Dublin.

Counsel for the Defendant:

Mr. McEntee SC

Mr. Creed BL

Instructed by:

Frank Buttimer,

O Neefe Buttimer & Co,

RULING
2

Mr. McEntee, on behalf of the accused, has applied to the court that it should withdraw the prosecution case from the jury and direct them to acquit the accused of the murder of Denis Patrick O'Driscoll on the ground that in the light of events which have happened relating to the conduct of the investigating police it is not now possible for the accused to have a fair trial as required by the constitution, either before the present jury or any other jury should a new trial be directed by the court. The circumstances which have given rise to the application are bizarre and unique in my experience and that of counsel on both sides of the case.

3

Shortly stated, the background facts are these: In January 1995 Mr. Denis Patrick O'Driscoll, known as Patrick, was reported to the Gardai in Cork as being missing. He had resided at a flat in number 9 Wellington Terrace, Mayfield, Cork and the accused resided in an apartment above Mr. O'Driscoll's flat in the same building.

4

In course of investigations, and subsequently in evidence at this trial, Mr. Michael Flannery junior, a nephew of the accused, then aged about 15or 16 years, informed the police that the accused had admitted to him that he had murdered Mr. O'Driscoll at number 9, Wellington Terrace. He stated in evidence that on a date in December 1994, or apparently in that month, he, the witness, was present in the O'Driscoll flat with the accused and his brother, John Flannery; that they, the Flannery brothers, had gone upstairs to the accused's flat with a saw and a knife; that sometime later that night he was asked by the accused to assist in the removal or a coal sack and two bags from Fredrick Flannery's flat to John Flannery's car which was parked in the street outside; that he was shown by the accused a hand and a foot in a cupboard in his kitchen; that he travelled in his uncle's car to his grandmother Flannery's house where the bags were stored and that on a later date he was brought by his uncles Fredrick and John to a field near the Vienna Woods Hotel, Glanmire where he was informed that the intention was to dig up the body of Mr. O'Driscoll, then buried nearby under a lane or path, and re-bury it in the field. In the event this plan was aborted because it was stated the ground was found to be too soft.

5

The witness, Michael Flannery, conceded in cross-examination that at all material times he had a drink and drugs problem which necessitated in-patient treatment in a detoxification unit at Garryvogue, County Cork, in early 1995. However, he stated also that his drug taking was limited to alcohol, marijuana and Roche 5s, a form of valium, which he stole from his mother from time to time. Specifically he denied use of hallucinatory drugs or so-called magic mushrooms.

6

Mr. Haugh, leading counsel for the DPP, has conceded that essentially the prosecution case depends on the acceptance by the jury of Mr. Michael Flannery's account of what is alleged to have happened at number 9, Wellington Terrace on the night in December referred to by him., what the witness saw there and the admissions allegedly made to him by the accused. In short, the credibility of Michael Flannery's evidence is crucial to the prosecution case.

7

The Book of Evidence in this case was served on 5th September, 1995. The matter came before the District Court in the usual way and on 3rd October, 1995 the District Judge returned the accused for trial at the Central Criminal Court on the basis of the case disclosed in the Book of Evidence.

8

The first misconduct by the police relating to their investigations came to light after the accused had been returned for trial. Mr. Buttimer, solicitor for the accused, wrote to the State solicitor on 12th December, 1996 seeking copies of all relevant documents in the possession of the police in addition to those disclosed in the Book of Evidence. His letter was duly referred to the Garda investigators and in response they furnished 24 statements obtained from witnesses who alleged that they had seen Mr. O'Driscoll after 31st December, 1994. These witnesses had come forward in response to a plea from the Gardai on a Crimeline television programme. Their honesty and bona fides is not in doubt but the police did not regard the alleged sightings as being reliable, even though eight or nine of the witnesses were emphatic in their recollections and they had known Mr. O'Driscoll for many years. The latter wore an eye patch which gave him a distinctive appearance. None of the sightings statements were furnished to the Director Of Public Prosecutions, either originally or later when furnished to the defence solicitor in response to his request. It is evident that they would not have been given to him if he had not asked for them.

9

In the course of cross-examination Mr. Michael Flannery stated, apparently for the first time, (there was no such information in the Book of Evidence), that he had told some friends about what had happened at number 9 Wellington Terrace soon after the event and that the police had obtained statements from them.

10

As a result of this disclosure Superintendent Patrick J Brennan, the officer in charge at the investigations, furnished for the first time statements taken from two friends of the witness and two fellow patients of his at the unit in Garryvogue about what he had told them of alleged events at Wellington Terrace in December, 1994 and also a statement obtained by the Gardai from a Fas teacher to whom Mr. Flannery junior had also confided.

11

These various accounts differ in significant respects from Mr. Flannery's testimony in court and from statements made by him to the police, copies of which are contained in the Book of Evidence. They are patently of...

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