Gambucci v Barry and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 29 October 2025
• Neutral Citation: [2025] IECA 215
• Docket Number: Court of Appeal Record Number: 2024/125 Court of Appeal Record No. 2024/126 High Court Record Number: 2010/7369P

Between/

Marco Gambucci

Plaintiff/Respondent

and

Daniel Barry, Jonathan Petrie, The Commissioner of An Garda Síochána, Ireland and The Attorney General

Defendants/Appellants

Between/

Luca Gambucci

Plaintiff/Respondent

and

Daniel Barry, Jonathan Petrie, The Commissioner of An Garda Síochána, Ireland and The Attorney General

Defendants/Appellants

[2025] IECA 215

Whelan J.

Meenan J.

O'Moore J.

Court of Appeal Record Number: 2024/125

High Court Record Number: 2010/7370P

Court of Appeal Record No. 2024/126

High Court Record Number: 2010/7369P

THE COURT OF APPEAL

CIVIL

JUDGMENT of Mr. Justice Charles Meenan delivered on the 29 ^th day of October 2025

Introduction:-

1 . This is an appeal brought by the defendants in the above-entitled actions against orders of the High Court where, following a trial before a judge and jury, awarded each of the above-named plaintiffs the sum of €95,000 as damages for malicious prosecution. The first and second named defendants/appellants in each of the actions were, at the material time, members of An Garda Síochána.

2 . The appeal is brought against a number of rulings and the conduct of the trial by the trial judge (Owens J.) and also against the quantum of damages awarded.

Background:-

3 . The plaintiffs are brothers who were born in Italy. Marco Gambucci lived and worked for an insurance company in Ireland. His brother, Luca, was visiting Ireland to meet his brother at the relevant time and had been working in the administration office of the fire brigade in Perugia, Italy. The purpose of his visit was not only to meet his brother but also to study English with, possibly, the intention of remaining in Ireland for a period of time.

4 . The statements of claim in both proceedings were drafted in almost identical terms save for the particulars of personal injury pleaded. It is alleged that on or about 18 May 2008 both plaintiffs boarded a LUAS tram at St. Stephen's Green Dublin. It is alleged that two men, who subsequently turned out to be the first and second named defendants, violently grabbed both plaintiffs and dragged them from the tram. It is alleged that both plaintiffs were put into a garda van and brought to Pearse Street Garda Station. En route it is alleged that both plaintiffs were assaulted and, on arrival at the garda station, were further assaulted.

5 . The statements of claim allege that at or about 19:30hrs on 18 May 2008 both plaintiffs were accused of theft. The plaintiffs were only released when two work colleagues of Marco Gambucci attended at the garda station and confirmed the plaintiffs' identities. The statement of claim continues:-

“9. On 19th May 2008 the first and second named defendants attended (Marco Gambucci's workplace) and indicated that there had been a mistake and it was not their intention to cause them harm. The first named defendant indicated that the plaintiff should not make a complaint or he would have him charged with assault

—-

11. Despite being aware from 18 ^th May 2008 of the identity of the plaintiff and his brother, and that they had no involvement in the matters the gardaí were investigating, the first and second named defendant resolved to have them charged with a criminal offence. The plaintiff attended at the District Court with his solicitor 16 ^th June 2008. Neither the first or second named defendants turned up in the District Court, however they had passed word to the prosecution solicitor that the plaintiff was now to be charged with assault. The first and second named defendant also failed to turn up on the adjourned date for the charge sheets and the matter was eventually struck out by the District Judge. However in the interim the plaintiff had to engage a solicitor and incurred expense in that regard.

In addition to claiming damages for battery/intentional trespass to the person and false imprisonment, both plaintiffs claimed damages for malicious prosecution.”

6 . A full defence was delivered to both claims which included a plea of contributory negligence on the part of the plaintiffs.

Evidence at the trial:-

7 . In this section I will refer, in summary form, to evidence that was given in support of the plaintiffs' claim for malicious prosecution.

8 . The first named defendant/appellant, Sergeant Daniel Barry (he had been promoted to Sergeant in 2022) gave evidence that on 18 May 2008 he saw four Romanian men whom he was previously aware of. His evidence was that he saw two men, whom he believed to be Marco and Luca Gambucci (the “Gambuccis”), talking to these four Romanians. Sergeant Barry said that he followed the Gambuccis up Grafton Street a distance of some 50 metres. He stated that whilst following them he saw them walk up behind a woman and said he saw this woman grab her bag and turn around as the Gambuccis passed on either side – (Day 5, Page 20, Line 9). Sergeant Barry continued that he went to the woman, produced his Garda ID, told her to wait there and that he would be back. At this stage Sergeant Barry had made contact with Garda Petrie, the second named defendant/appellant and informed him of what he had observed.

9 . Having purchased tickets the Gambuccis boarded a LUAS tram at St. Stephen's Green. The first and second named defendant removed the Gambuccis from the tram and transported them to Pearse St. Garda Station where they were held accused of theft and subsequently released.

10 . The following day, 19 May 2008, Sergeant Barry and Garda Petrie went to Marco Gambucci's apartment apparently with a view to returning his bank card which had become separated from his wallet whilst in Pearse St. Garda Station. Luca Gambucci was in the apartment and Marco was at work. Following a phone call all three attended at Marco's place of work where a conversation took place. The contents of this conversation were disputed. There was evidence that Sergeant Barry was carrying a folder and had stated that inside the folder were the charge sheets which the Gambuccis had signed the previous day. According to Marco Gambucci he was informed by Sergeant Barry that they had been investigating some Romanian thieves and thought that the Gambuccis were involved. However, they accepted that they had made a mistake. Marco Gambucci's evidence was:-

“… [Sergeant Barry] explained that basically those charge sheets are nil, it doesn't value anything, unless they send to the Superintendent, or the DPP, or some kind of judge for this. So, basically, he offer a deal saying ‘if you — I understand what happened, we made a mistake, but if you don't seek legal advice and if you close what happened with the shake of the hands, I don't send this and you walk free. You don't have to go in June to the court to respond to this.’ I said, ‘But it's not – we didn't do anything. Why you did so, you know?’ and he says, ‘But, you know, you resisted arrest and you beat me’ – Looking at Luca – ‘You punched me’ —- If you don't accept the deal we can change the charge from attempted theft to resisting to the arrest, to assault, you know…'” (Day 1, Question 324)

11 . The conversation between the Gambuccis, Sergeant Barry and Garda Petrie took place in the presence of Ms. Georgia Papa, a work colleague of Marco Gambucci. Her recollection of the conversation, essentially, corroborated the evidence given by Marco Gambucci. She confirmed that Sergeant Barry had a file with him, and, in effect, was offering the Gambuccis a deal that if they did not seek legal advice the charges of theft would not be proceeded with and no further steps would be taken concerning the allegation that Luca Gambucci had punched Sergeant Barry in the face. The “ deal” that had been offered by Sergeant Barry was not accepted by the Gambuccis.

12 . On 16 June 2008 the charge of attempted theft against the Gambuccis was listed in the District Court. There was no appearance by Sergeant Barry or Garda Petrie but the court was informed that it was intended to substitute a charge of resisting arrest for the charge of attempted theft so the matter was put back to 14 July 2008. On the adjourned date there, again, was no appearance by either Sergeant Barry or Garda Petrie and so the District Judge struck out the charges for no appearance.

13 . The plaintiffs/respondents' claim was heard before a judge and jury over some seven days. The following questions were put to the jury and answered as follows. (There were separate questions in respect of each of the Gambuccis and I have, for the sake of brevity, combined the questions):-

“ 1. Did Garda Barry/Petrie forcibly remove Marco/Luca Gambucci from the LUAS Tram?

A. No.

2. Did Garda Barry/Petrie honestly believe in the case (they) were making in prosecuting Marco/Luca Gambucci for attempting to steal from the bag of a lady on Grafton Street?

A. No.

3. Was the prosecution by either Barry/Petrie of Marco/Luca Gambucci instituted or maintained to use the criminal legal process for an improper purpose of dissuade Marco/Luca Gambucci from seeking legal redress relating to their treatment by Garda Barry and Garda Petrie on 18 May 2008?

A. Yes.

4. Did Garda Barry assault Marco/Luca Gambucci in the Garda van?

A. No.”

The jury awarded Marco and Luca Gambucci the sum of €95,000 each as damages for malicious prosecution.

Notice of appeal:-

14 . Notices of appeal were served in respect of both actions. There were some 11 grounds of appeal common to both appeals. These grounds were:-

Though ground 6 appears in both notices of appeal in fact it is only referable to Marco Gambucci.

• (1) The learned trial judge misdirected the jury in respect of the law and the relevant facts to be considered in respect of malicious prosecution.

• (2) The learned trial judge made findings of fact in respect of malicious prosecution without submission from counsel in respect of same.

• (3) The learned trial judge failed to apply the correct legal test...