"Scandalous" handling of garda informer means convicted murderer could not secure fair trial, argue lawyers

By Ruaidhrí Giblin

Lawyers for a convicted murderer have told the Court of Appeal that their client couldn’t get a fair trial due to the “scandalous” handling of a garda informer.

The Dublin man jailed for life for the murder of a father-of-three in Dublin nearly eight years ago must now wait to hear the outcome of an appeal against his conviction.

Peter Kenny (35), of McCarthy’s Terrace, Rialto in Dublin, had pleaded no guilty to the murder of John Carroll (33) who was shot dead while socialising in Grumpy Jack’s pub in the Coombe on February 18, 2009.

Kenny was found guilty by a Central Criminal Court jury and given the mandatory life sentence by Mr Justice Barry White on July 19, 2011.

Opening an appeal against conviction today Kenny’s barrister, Seán Gillane SC, said the prosecution centred on the evidence of Joseph O’Brien, a “known drug dealer”, former suspect and garda informant.

Mr Gillane, along with Dean Kelly BL, said the genesis of Mr O’Brien’s evidence, and the manner it was brought about, must cause the Court of Appeal concern. It was “unorthodox, irregular and involved illegalities”.

Some aspects of how Mr O’Brien was handled by the gardaí were “scandalous”, counsel said. It lead to an application that a fair trial could not be secured and that Mr O’Brien’s evidence should have been excluded.

He said Mr O’Brien was arrested on suspicion of murder, brought back to Pearse Street garda station and brought into a room for a meeting with Det Sgt Adrian Whitelaw and the late Superintendent PJ Browne.

Neither Det Sgt Whitelaw nor Superintendent Browne took a single note of anything that transpired over two hours, Mr Gillane said. Not a single scrap of paper was generated in an engagement between the lead investigating garda, his supervisor and someone who, at that stage, was a suspect in the case.

He said the “deliberate and calculated” way it was done made the fruits of the discussion almost impossible to subsequently analyse. It placed Kenny’s lawyers in an impossible position, compromising their capacity to effectively present a case.

Mr Gillane said the exact parameters of the relationship between O’Brien, Det Sgt Whitelaw and Supt Browne, which the defence did not know about until just before the trial, was “never pinned down” because none of the people responsible for managing it ever took a note or shared the existence of it with anybody.

Furthermore, he said there were stark contradictions between what Mr O’Brien and Det Sgt Whitelaw were saying on the nature of the relationship, which could never be resolved.

Almost every piece of material related to the meeting resulted in huge divergences in terms of O’Brien’s motivation for making the statement, who mentioned the witness protection programme, who mentioned immunity and whether immunity was applicable to this prosecution.

Mr Gillane said it was a matter which took days of cross examination to pin down.

Counsel said that from 2005 onwards, Mr O’Brien was an informer, a “known drug dealer”, who was giving information to Det Sgt Whitelaw “in that capacity” to the detective for his use.

What was worse, Mr Gillane said, was that published garda guidelines on how informers were to be dealt with were not just inadvertently breached but “knowingly breached”. He said Det Sgt Whitelaw had received the guidelines, relating to the Covert Human Intelligence Source (CHIS), had read them, understood them and “nonetheless continued to operate in the way that he did”.

Counsel for the Director of Public Prosecutions, Patrick Gageby SC, said Kenny’s lawyers had not demonstrated how, apart from what may or may not have been said in the Garda station, “opaqueness” impacted the case as proved against Peter Kenny.

Mr Gageby said there was there was abundant supportive evidence against Kenny and it was hard to see how any of that might have been materially affected by anything that was or wasn’t said in the meeting with Mr O’Brien or whether he had properly been documented as an informer.

He said the case against Kenny largely came down to telephone traffic and his attendance at the place where the gun was in the car.

Mr Gageby said witnesses, “who were not Mr O’Brien”, gave powerful evidence that a “chubby man” came and went on a motorbike.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Hedigan, said the court would reserve judgment.


 

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