Osbourne -v- Minister for Justice & Ors, [2006] IEHC 117 (2006)

Docket Number:1997 2363 p
Party Name:Osbourne, Minister for Justice & Ors
Judge:Clarke J.

THE HIGH COURT[1997 No. 2363P]BETWEENANN OSBOURNEPLAINTIFF ANDTHE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERALDEFENDANTSJUDGMENT of Mr. Justice Clarke delivered 13th April, 2006.1. Introduction1.1 This case concerns an incident which took place on 15th August, 1995 when a number of members of An Garda Síochána were engaged in activities at Fitzgerald Park, Mounttown, Dun Laoghaire. There is no doubt but that an incident occurred on the occasion in question but there is considerable controversy as to certain important aspects of the facts and, in particular, facts relevant to this case. Arising out of the incident the plaintiff ("Ms. Osbourne") claims that she suffered significant personal injuries and claims damages (including aggravated damages) for such injuries and for what she claims were breaches of her constitutional rights.1.2 As indicated above there is a significant controversy over certain aspects of the incident. However some aspects of what occurred can, on the evidence, be stated to be uncontroversial.2. The Uncontested Facts2.1 The Gardaí had an interest in a Robert Merrigan who lived in an apartment at Fitzgerald Park. It would appear that Mr. Merrigan was, at the relevant time, suspected of having committed a burglary at a house in Woodland Park which is a short distance from Fitzgerald Park. It would appear that a watch and a sum of money had been stolen from the house concerned and that the description of one of those allegedly involved matched that of Robert Merrigan.2.2 On foot of that information an application was made on the 14th August, 1995 to a Peace Commissioner, Mr. Fergus Nestor, for a number of search warrants. Some controversy surrounds those search warrants and that is, therefore, an issue to which I will have to return.2.3 In any event relying upon the search warrants a number of Gardaí attended at Fitzgerald Park on the evening of 15th August for the purposes of executing those search warrants. The warrants included one in respect of No. 44 Fitzgerald Park at which it would appear that a cousin of Robert Merrigan resided. A second warrant related to No. 45 Fitzgerald Park which is the property in which Ms. Osbourne lived. Both No. 44 and No. 45 are two storey dwellings within an apartment block. The front access is from a first floor external corridor. In both cases there is a rear balcony and it seems that it is relatively easy to go from one balcony to the next. There was thus relatively easy access at the rear from No. 44 to No. 45.2.4 It does not appear to be in dispute that the Gardaí attempted, initially, to gain access to No. 44. It would seem on the evidence that Robert Merrigan was present at the relevant time in No. 44, that the Gardaí sought to execute the warrant in respect of that premises, that they were initially refused access and were preparing to break in the door to No. 44 when that door was opened allowing the Gardaí to enter. It would also appear that just as the Gardaí were entering Robert Merrigan left through the rear balcony and appeared to enter into the neighbouring dwelling at No. 45.2.5 In those circumstances it would appear that the Garda in charge (then Sergeant now Inspector Hogan) went back to his car to obtain the warrant in respect of No. 45 which he had left in the car. While Inspector Hogan was engaged in that process two Gardaí would appear to have been left in No. 44 for the purposes of apprehending Mr. Merrigan in the event that he should come back into that property. A number of other Gardaí (probably 3) remained in the corridor outside of both Nos. 44 and 45.2.6 When Inspector Hogan returned with the warrant in respect of No. 45 it would appear that Robert Merrigan was present in No. 45 when the Gardaí knocked at the door. Robert Merrigan asked the Gardaí whether they had a warrant and was informed that that was indeed the case. Notwithstanding this Robert Merrigan did not open the door and the Gardaí proceeded to break in.2.7 Thereafter an attempt was made to arrest Robert Merrigan within No. 45 with a struggle ensuing between two Gardaí and Mr. Merrigan. It is also common case that the mother of Robert Merrigan, Frances Merrigan, arrived as the Gardaí were attempting to subdue Mr. Merrigan. It is common case that after a period Mr. Merrigan was subdued and was taken from the property under arrest by a number of Gardaí.3. The Disputed Facts3.1 In addition to the fact that there are issues about the search warrant used on the occasion in question there are number of factual disputes between the parties. On Ms. Osbourne's case she was sitting in a common area of the apartments with a number of friends drinking tea when a significant force of Gardaí arrived. She gave evidence that after a period she was informed that the Gardaí were "kicking our door". She gave evidence that she went up the ramp which leads to the outdoor corridor but...

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