FIOSRÚCHÁN FAOI ALT 42 D'ACHT AN GHARDA SÍOCHÁNA 2005, ARNA LEASÚ
INQUIRY UNDER SECTION 42 OF THE GARDA SÍOCHÁNA ACT 2005, AS AMENDED
1
TABLE OF CONTENTS PAGE 1. TERMS OF REFERENCE 4
2. REPORT SECTION 1 6 Response made on the night of the death of Mr. John Kelly by An Garda Síochána.
3. REPORT SECTION 2 30 The conduct and adequacy of the Garda Síochána investigation.
4. REPORT SECTION 3 72 The correctness or otherwise of the information provided by the Garda Síochána to the family of John Kelly in relation to the injuries sustained by him.
5. REPORT SECTION 4 77 Whether or not the information provided by the Garda Síochána to the family of Mr. John Kelly concerning the condition, whereabouts and any forensic examination of his clothes was correct.
6. REPORT SECTION 5 80 The appropriateness or otherwise of the Garda Síochána appointment to the Garda Síochána Ombudsman Commission supervised inquiry.
2
TABLE OF CONTENTS (CONT'D)
PAGE 7. REPORT SECTION 6 86 The appropriateness or otherwise of Garda Síochána communication with members of the Kelly family including at meetings with them.
8. REPORT SECTION 7 109 The content and significance of any testimonies given by witnesses to the death, including civilians who telephoned emergency services.
9. REPORT SECTION 8 111 The response of the Garda Síochána to the emergency telephone calls made shortly before the death of Mr. John Kelly.
10. CONCLUSIONS 112
3
TERMS OF REFERENCE
TO ENQUIRE INTO A MATTER OF PUBLIC CONCERN NAMELY, -
- Responses made on the night of the death of Mr. John Kelly at Britain Quay, Dublin 2 on 15/16 October 2008 by the Garda Síochána.
- The conduct and adequacy of the Garda Síochána investigation conducted thereafter.
- The content and significance of information provided by the Garda Síochána to the family of Mr. John Kelly in relation to injuries sustained by the deceased.
- The content and significance of information provided by the Garda Síochána to the family of Mr. John Kelly in relation to the condition and whereabouts of the clothes of the deceased and any forensic examination of same.
- The appropriateness or otherwise of the appointment made by the Garda Síochána to a subsequent inquiry by the Garda Síochána Ombudsman Commission (GSOC).
- The appropriateness or otherwise of garda communication with members of the Kelly family, including at subsequent meetings with them.
4
- The content and significance of any testimonies given by witnesses to the death, including civilians who telephoned emergency services.
- The response of the gardaí to the emergency telephone calls made shortly before Mr. John Kelly's death.
Statutory instrument number 198 of 2017: 15th May 2017.
Garda Síochána Act 2005 (Section 42) (special inquiry relating to the Garda Síochána) (No. 3) Order 2017.
Notice published in "Iris Oifigiúil" 19th May 2017.
5
SECTION 1
RESPONSE MADE ON THE NIGHT OF THE DEATH OF MR. JOHN KELLY BY AN GARDA SÍOCHÁNA
1. All calls made to the emergency phone numbers "999" and "112" in the Dublin area on 16th October 2008 seeking assistance from the Garda Síochána were transferred within seconds by the emergency number response operators to a Garda Síochána call-taker at the Command and Control Centre of the Garda Síochána at Harcourt Square. This was in compliance with the procedures specified in the National Emergency Service Operator Work Instruction Manual, 999/112. These transfers were effected by a dedicated special direct line facility and the Eircom PLC operator remained on the line only until she or he heard the Garda Síochána call-taker responding to the caller [1]. Each call was electronically recorded and the operator would also immediately complete a written standard form record of the call known as a 'ticket'. These recordings and tickets were retained at Telecom House, Marlborough Street, Dublin until after the coming into operation of the Communications (Retention of Data) Act 2011. They were then destroyed and cannot be retrieved or recreated [2].
2. On 16th October 2008 one call seeking such Garda Síochána assistance was made through the Directory Enquiry Service 11811 directly to Pearse Street Garda Station Dublin [3]. A number of calls seeking such assistance were made directly to Irishtown Garda
6
Station [4]. No record, electronic or manual, of the direct call to Pearse Street Garda Station was disclosed to this inquiry. No equipment was available at Irishtown Garda Station in October 2008 for making a direct voice recording of the calls made to that garda station. It was one of the many duties of the garda in charge of the Public Office at Irishtown Garda Station between 10pm and 6am to enter these calls into the Garda Síochána computer aided dispatch (C.A.D.) system by means of an on-screen standard form template [5].
3. Some only of these direct calls to Irishtown Garda Station were entered into this Garda Síochána C.A.D. system and thereby automatically transmitted to a dispatcher at the Garda Síochána Command and Control Centre at Harcourt Square [6]. Errors in incident type and location were included in those transmissions potentially very serious in the context of a person in distress in deep water. Fortunately these errors did not result in any significant delays or misdirection of garda mobile patrols [7]. The emergency call made directly to Pearse Street Garda Station was mishandled in what the Superintendent in charge [8] accepted and which I find was a most irregular manner and contrary to established Garda Síochána procedures. These matters will be addressed more fully later in this report in considering the several calls for Garda Síochána assistance in their correct time sequence.
4. The first call seeking the assistance of the Garda Síochána in relation to the behaviour of a male at
7
Britain Quay was made, employing the 112 emergency number, at 12.28am on 16th October 2008 [9]. This call was made by a resident in Apartment 16 Portview Apartments, Thorncastle Street, Ringsend, Dublin. These apartments back on to Grand Canal Basin at a confluence of the River Dodder and the River Liffey on the opposite side of this water from Britain Quay. The caller [10] identified herself and informed the Garda Síochána Dublin (South Central) Area call-taker [11] that she could hear a male repeatedly shouting "Hey" on the opposite side of the canal from her apartment and that he seemed to be drunk. A contemporaneous record of this conversation was made by the Garda Síochána I.C.C.S. system and was furnished to this inquiry [12].
5. Details of this and subsequent calls answered by call-takers at the Garda Command and Control Centre were entered by them into the garda computerised aided dispatch system (C.A.D.) employing a standard form template. This information was then automatically transferred to the screen of one of the garda dispatchers in the same Command and Control room. This dispatcher, observing a priority rating reflecting the incident gravity and urgency, directed over the Garda Síochána communications network, such foot and/or mobile patrols as were available and clear within, or if necessary outside the Dublin (South Central) Area which he or she considered to be sufficient to go directly to a particular location and investigate the incident said to be occurring there [13]. I am satisfied from the evidence received, and
8 as a matter of plain reason and common sense, that it was the duty of whatever garda mobile patrol as was dispatched to an incident to go at once and by the shortest available route to whatever location was specified by the Command and Control dispatcher [14]. I am satisfied from the evidence received that in October 2008, unlike the present, the Garda Command and Control dispatcher had no independent means of ascertaining and verifying the whereabouts of a mobile patrol once dispatched to a particular incident [15].
6. I find that the second call seeking assistance of the Garda Síochána in relation to the behaviour of a male at Britain Quay, Dublin was made at 12.37am on 16th October 2008 by a resident in Apartment 24 Portview Apartments, Thorncastle Street, Dublin [16]. This resident states that she rang 01-6669600, the number of Irishtown Garda Station, as this was the local garda station and she felt that they would be already in the area or would send a car to check it out. She states that her phone records showed that she made this call at 12.37am on 16th October 2008 [17]. This lady no longer resides in Ireland.
7. She states that she informed the girl (sic) at Irishtown Garda Station who answered her call that from approximately 12.15am onwards she heard a male shouting loudly and intermittently what sounded to her like "Claire", but she could not catch exactly what it was. It was cold and dark and the tide was really high. Initially she could not see anything but she knew that the shouts were coming from either the waste
9 ground at Britain Quay or the water in front of it. The shouting stopped. She went to bed but it started again. She went out on to the balcony outside her bedroom. She thought she saw a shape in the water between the quay steps and the parked (sic) barge.
8. No note or record of this 12.37am telephone call to Irishtown Garda Station appears in the Garda Síochána files provided this inquiry [18]. In particular, no details of this telephone call are to be found in the Garda Síochána C.A.D. system records. The member of the Garda Síochána on duty in the public office at Irishtown Garda Station between 10pm on 15th October 2008 and 6am on 16th October 2008 [19], one of whose several responsibilities it was to answer telephone calls to the garda station by members of the public, had no recall of having received this telephone call [20]. In October 2008 there were no voice recording facilities in garda stations to record such telephone calls. There was no requirement to manually record such telephone calls or even a practice of so doing however informally [21].
9. I find that this 12.37am telephone call to Irishtown Garda Station on 16th October 2008 should have been immediately entered into the garda computerised aided dispatch (C.A.D.) system by the garda whose duty it was to answer such calls. It was not. The resident who made this telephone call states that the girl (sic) who answered said that, "It was not their area, that it was Pearse Street area," but
10 she would pass it on and get someone to check it out. This did not occur either. I find it totally unacceptable that a member of the public who makes a telephone call to a garda station urgently seeking garda assistance should be met with any form of jurisdictional objection. This is not to be excused by a promise that the message will be passed on to some other garda station. All practical measures must be taken to ensure that this can never recur. In the instant case, even if the message had been passed on to Pearse Street Garda Station, and there was no evidence that it was, this would have resulted in a waste of vital time as Pearse Street Garda Station would then have to enter it into the garda C.A.D. system for the information of the Garda Command and Control dispatcher before any action could be taken.
10. The crucial significance of this 12.37am telephone call to Irishtown Garda Station is that, unlike the previous telephone call to Garda Command and Control at 12.28am, it raised the issue that the man shouting at Britain Quay may have been in the water and at a very specific location. This was a credible report of a very serious emergency, and Dublin Fire Brigade River Rescue Unit should have been called out by the Garda Síochána at 12.39am at the latest, and not at 12.57am as in fact occurred [22]. Individual members of the Garda Síochána are not trained or equipped to try to effect a rescue by entering water themselves [23]. In the past, many have done so with conspicuous bravery but this always involves the very great risk of a greater loss of
11 life. Where the Garda Síochána are credibly advised that a person may be in difficulty in deep or dangerous waters, Dublin Fire Bridge River Rescue Unit, or as appropriate one of the other water or marine rescue emergency services, must always be notified by them at the very earliest possible opportunity since time is of the very essence.
11. There can be no doubt whatever on the evidence that at 12.37am, and indeed also at 12.28am, the man shouting at Britain Quay was in fact in the water in front of the quay at almost exactly the location described by the resident in Apartment 24 Portview Apartments to the member of the Garda Síochána at Irishtown Garda Station at 12.37am.
12. The resident in Apartment 1 Portview Apartments (on the ground floor) states [24] that at approximately midnight on 15th October 2008 he and a friend heard an adult voice shouting "Help" and went out on to the balcony of the apartment to investigate. The night was very dark and cold. After a few minutes looking they saw a man in the water beside the pier (sic) at Britain Quay. His friend thought that this man was wearing a white top and saw one of his arms out of the water as though tying to catch or to hold on to something near the quay wall and the corner of the moored barge. The evidence establishes beyond all doubt that Mr. John Kelly had been wearing a white hoody. The friend of the resident in Apartment Number 1 Portview Apartments shouted to the man in the water, "Calm down. We are calling the police. There is a
12 ladder to the left." Perhaps he was referring to the quay steps which were on the left of the barge looking across from the apartments, or perhaps there was also a ladder there at that time. He recalled that the man in the water continued to call "Help" and sounded as if he was suffering and scared. They put on their jackets to go to his assistance but then decided it would take too long. Meanwhile other residents had come out on their balconies and the men asked them if they had telephoned the police, and they received an affirmative reply.
13. The resident in Apartment 15 Portview Apartments [25] states that she heard a man shouting "Hey" at intervals of about five minutes for about one hour and eventually got up to investigate. At this point his shouts seemed less frequent and sounded more distressed. At about 12.20am on 16th October 2008, she heard two males shouting to the man in the water from another of the Portview Apartments, "Hey guy, to the right there's a wall." She thought she heard the man in the water respond, "I'm in a car." Between 12.20am and 12.30am she could see his arms floating above the water. A resident in Apartment 18, Portview Apartments in a statement made to a member of the investigating team on 3rd November 2008, recalled hearing someone from another apartment shouting, "I'm coming. Where are you?" This was between midnight and 12.30am on 16th October 2008. Though it can be no more than surmise, it is most likely that what he replied was, "I'm in here," and earlier had said not
13
"Claire" but "here." The night was very dark as several residents deposed. A very large dredging barge was moored approximately ten feet out from the face of the quay wall at Britain Quay creating a sort of canal between it and the quay wall. The resident in Apartment 16 Portview Apartments [26] states that shortly after she rang 112 seeking the assistance of the Garda Síochána, which by reference to the Garda Síochána C.A.D. and I.C.C.S. systems records was just before 12.28am on 16th October 2008 and was the first such call in relation to the behaviour of a male at Britain Quay, she heard other residents in the Portview Apartments shouting to the man "Do you need help?"
14. Taking these accounts together, I believe that it is reasonable to infer that Mr. John Kelly was in the water at Britain Quay from approximately 12.15am to 12.58am on 16th October 2008 before he disappeared under the surface of the water. I am also satisfied that he continued to call "Help", but at increasingly longer intervals and in a weaker or more muffled voice until 12.50am when he ceased to call [27].
15. The third telephone call seeking the assistance of the Garda Síochána in relation to the behaviour of a male at Britain Quay was made at 12.39am on 16th October 2008 by a resident in Apartment 19 Portview Apartments, Thorncastle Street, Dublin [28]. This caller used the 999 emergency number. She believed that she telephoned 999 at about 12.30am but the Garda Síochána C.A.D. system records and the transcription
14 of Garda Síochána integrated communications control system audio recordings (I.C.C.S.) give the time as 12.39am [29]. The caller gave her name and her mobile telephone number. She told the call-taker at Garda Command and Control, Harcourt Square that she could hear a male shouting and roaring on the opposite side of the canal from her apartment. She could not see the source but the person sounded in distress and wanted someone to help him. The call-taker told her that the Garda Síochána had received a similar call previously from Portview Apartments. The call-taker [30] then added this information and details to those of the 12.28am telephone call, and under the same C.A.D. incident number [31].
16. A fourth telephone call seeking the assistance of the Garda Síochána in relation to the behaviour of a male at Britain Quay was made also at 12.39am on 16th October 2008 by a resident in Apartment 17 Portview Apartments, Thorncastle Street, Dublin [32]. This resident also used the 999 emergency number. This telephone call was taken and recorded by the I.C.C.S. at Garda Command and Control, Harcourt Square and was entered into the garda C.A.D. system at 12.39am [33]. The caller told the call-taker that she could hear a young man calling for help at Grand Canal Docks for the previous hour. The caller stated that she was on Thorncastle Street but did not give, and contrary to recommended procedures was not asked for, her name and contact details. The telephone call was given an incident number different to that given to the two previous telephone calls at 12.28am and 12.39am [34].
15
17. These telephone calls seeking the assistance of the Garda Síochána made at 12.28am, 12.39am and again at 12.39am on 16th October 2008 were not considered to require an immediate emergency response [35]. The indicated behaviour of the male at Britain Quay was considered to be most probably due to intoxication and/or anti-social attitudes [36]. I am satisfied that it was reasonably open to the gardaí at Garda Command and Control to make these decisions at this time, and one must be alert to making a judgment based upon hindsight. In addition, the evidence established that all available Dublin (South Central) Area mobile units were occupied in attending to an intruder call between 23.21pm on 15th October 2008 and 12.38am on 16th October 2008 [37].
18. Accordingly, it was not until 12.40am on 16th October 2008 that the dispatcher at Garda Command and Control, Harcourt Square [38] covering the Dublin (South Central) Area dispatched the Irishtown Garda Station patrol car, Echo Bravo 1 to the canal opposite the Portview Apartments. The crew of EB1 [39] responded and the record shows that they arrived at what is described as "The scene" at 12.43am [40]. At 12.46am the crew of EB1 cleared the call by returning "GOARR, (gone away on arrival) to Garda Command and Control [41].
19. The evidence established that the crew of EB1 had not in fact gone as directed by the Garda Command and Control dispatcher to the canal opposite Portview
16
Apartments [42]. The Garda Command and Control dispatcher was entirely unaware of this. Unlike the present, in October 2008 Garda Command and Control had no independent means of monitoring the whereabouts of a mobile unit once it was dispatched [43].
20. It is scarcely surprising that the crew of EB1, as they stated, saw and heard nothing [44]. They were present at a location on the River Liffey side of the Portview Apartments for three minutes from arrival to departure [45]. Of this time I inferred that not more than two minutes was spent outside the patrol car. The evidence established [46] that at this time the shouts of the man at Britain Quay had become less frequent and his voice was more muffled.
21. All accounts stress that the night of 15th/16th October 2008 was very cold and dark and there was no lighting of any sort at Britain Quay. The public lighting there had been disconnected from the supply in April 2008 following unlawful and extremely dangerous attempts to abstract electricity from the system at Britain Quay [47]. Some residents of Portview Apartments [48] observed two gardaí with torches on the river ramp on the Liffey side of the apartments. I am satisfied that in the time spent, and in the conditions prevailing, it would have been truly remarkable had the two crew members of EB1 seen or heard the man at Britain Quay from where they were. I am also satisfied that had they gone as directed to the canal opposite Portview Apartments, that is to Britain Quay, they would, despite the darkness and the
17 lack of public lighting, have seen the man in the water. This would have been between 12.43am and 12.46am on 16th October 2008. Dublin Fire Brigade River Rescue Unit could and should have been immediately called out and would have been at the scene in two minutes [49].
22. I find that the failure of the crew of EB1 to go as dispatched to the canal opposite Portview Apartments arose out of confusion and misunderstanding and was not due to dereliction of duty. The evidence established that Portview Apartments, Thorncastle Street are in the Irishtown Garda area while Britain Quay is in the Pearse Street Garda area [50]. No one could inform this inquiry as to where exactly the boundary lay between the two areas at Grand Canal Basin. I am satisfied that the crew members of the Irishtown patrol car, EB1, genuinely believed that despite being dispatched to the canal opposite Portview Apartments, they should not leave the Irishtown Garda Station area without first confirming that something was in fact amiss at Britain Quay which would justify their leaving their own area [51]. I am satisfied that they completely but genuinely misunderstood the authority of the Garda Command and Control dispatcher and their own role in the matter due to inexperience and/or insufficient training. They obviously did not understand that the Garda Command and Control dispatcher had full power and authority to dispatch any garda foot patrol or mobile unit to any location, and that the duty of any mobile unit so directed to go to a specified location was to
18 go immediately and as rapidly as was safely possible to the location indicated.
23. A fifth telephone call seeking the assistance of the Garda Síochána in relation to the behaviour of a male at Britain Quay was made on 16th October 2008 by a resident in Apartment 25 Portview Apartments, Thorncastle Street, Dublin [52]. This caller did not take note of the precise time at which she made her call. She recalled that she had gone to bed at approximately 10.45pm on 15th October 2008 and was woken about one hour later by what she described as intermittent wailing cries of a young man from the direction of the barge at Britain Quay. She said he sounded to her like he was really drunk and messed up. She was quite satisfied that he was not involved in a struggle or a fight. After 20 minutes she got up and looked outside but she could see nothing and returned to bed. The cries however continued and appeared to be more frequent and sounding more distressed. After a further 15 minutes or so she rang Directory Enquiries 11811 and was connected directly to Pearse Street Garda Station. No record in any format of this call to Pearse Street Garda Station was found on the Garda Síochána records furnished to this inquiry. What then occurred on this caller's accounts of events, which I find to be both correct and accurate, was utterly reprehensible. This resident was interviewed by the Garda Síochána on a number of occasions. Her account of events could have been challenged in evidence at the Coroner's inquest or put in issue at this inquiry, but it was not. No such
19 challenge was made, and I am satisfied that her account on deposition is totally credible when tested against other admitted or verifiable facts.
24. This resident in Apartment 25 Portview Apartments states that her telephone call to Pearse Street Garda Station was answered by a female. She told this person what was happening. She states that she made the telephone call from the balcony of her apartment so that the wailing cries would be audible to whoever answered in Pearse Street Garda Station and they would accept that her call was not a crank call. The female at Pearse Streets Garda Station enquired where she was calling from. When told that it was Portview Apartments, she responded that this was not in her jurisdiction and the caller would have to ring Irishtown Garda Station. This resident was then obliged to find a pen and paper and write down a telephone number which she was given for Irishtown Garda Station. This public-spirited lady persisted and rang the number she was given. A male answered and again she explained what was happening. He then apologised and said that she had been given the incorrect telephone number and was through to Tallaght Garda Station. He told her that he could not connect her with Irishtown Garda Station and he gave her another telephone number but said that she would have to ring that number herself. To her immense credit she did. No record of any sort of this telephone call to Tallaght Garda Station was found in the Garda Síochána records disclosed to this inquiry.
20
25. I find, and it was unequivocally accepted in evidence by the Superintendent in charge at Pearse Street Garda Station on 16th October 2008 [53], that this response by the female person at Pearse Street Garda Station was totally unacceptable. I infer that this person was a member of the Garda Síochána attached to Pearse Street Garda Station. This person at Pearse Street Garda Station who responded to the telephone call either paid no attention whatsoever to what she was told, which clearly indicated that the problem was within the Pearse Street Garda area, or which is even worse, disregarded it and seized upon the fact that the caller was telephoning from outside that area to pass the problem to another garda station. I find that the female person at Pearse Street Garda Station and the male person at Tallaght Garda Station should both have known that it was their duty to immediately enter this request for garda assistance into the garda C.A.D. system. Even if it had been a correct response to alert another garda station to this request for garda assistance, and I find that it was not, no explanation was forthcoming as to why this could not have been done using the Garda Síochána special communications system or even by radio, ordinary telephone or mobile phone. I find it inexcusable that any member of the public should have been treated in this manner when seeking the assistance of the Garda Síochána. All possible measures must be taken to ensure that this can never recur.
21
26. At 12.45am on the 16th October 2008, the resident in Apartment 25 Portview Apartments finally made contact with Irishtown Garda Station where her telephone call was answered by a female garda [54]. She informed this garda that she was calling from Portview House (sic) and could hear a male shouting nearby for over 20 minutes. She believed he was in the water and was possibly stuck. She states [55] that before she could say anything more, this garda told her that the Garda Síochána had received calls about this already and someone was on the way. No one was in fact on the way. Since the 'GOARR' signal at 12.46 am from the crew of EB1, the matter had gone into abeyance. However, I am prepared to accept that the garda at Irishtown Garda Station may have been speaking colloquially and meant that someone would immediately be on the way. This garda did not ask for the caller's name, which she should have done, but did immediately enter details of the call into the Garda Síochána C.A.D. system [56]. This was seen by the dispatcher at Garda Command and Control at Harcourt Square.
27. The female garda at Irishtown Garda Station [57] decided very correctly that the incident described by the caller from Apartment 25 Portview Apartments demanded a 'priority 1' attention. This was a code signifying a most serious incident requiring an immediate response. Unfortunately she used an incorrect code, that for a serious car accident, and also gave an incorrect location, the North Wall. In response the dispatcher at Garda Command and Control
22 dispatched what the C.A.D. record suggests was a foot patrol to the North Wall. This was subsequently cancelled by the dispatcher at 12.49am on 16th October 2008. Fortunately this dispatcher contacted EB1 at 12.49am and dispatched the crew to the canal opposite the Portview Apartments by the U2 Tower where a male was in fact in the water and was shouting for help [58]. I am satisfied that the error on the part of the member of the Garda Síochána at Irishtown Garda Station in transmitting the incorrect priority code was due to haste and lack of experience, and the error in the location was simply due to lack of familiarity with locations in the lower River Liffey area. Fortunately neither error in the events which occurred caused any meaningful delay in garda response time.
28. Unfortunately for the same reason as at 12.40am, the crew of EB1 did not again go as directed to the canal opposite the Portview Apartments but went back to the apartments themselves where they arrived at 12.52am on 16th October 2008 [59]. In the meanwhile, the resident in Apartment 17 Portview Apartments rang the emergency number 112 again at 12.50 because she had become very concerned about the failure of the Garda Síochána to respond to her earlier telephone call at 12.39am seeking assistance regarding the man at Britain Quay. At 12.52am she and her sister [60], and also the resident in Apartment 24 Portview Apartments, saw two gardaí with flashlights at the river ramp on the Liffey side of the Portview Apartments. These two ladies in Apartment 17 went down and showed the two crew members of EB1 where they
23 believed that the male voice was coming from which was near the barge close to the quay wall on the other side of Grand Canal Basin. At this time the residents of Portview Apartments had noticed that his shouts had stopped [61]. The crew returned to EB1 and drove by way of Ringsend Road, Macken Street, and Sir John Rogerson's Quay to the river end of Hanover Quay at the lock chambers and gates where they arrived at 12.55am. There was a shorter route by way of South Dock Road and across the lock gate walkways, but they appeared to have been unaware of this. At 12.55 the observer in EB1 [62] contacted Garda Command and Control, Harcourt Square and requested that Dublin Fire Brigade attend at the scene. I am at a loss to understand why this had not been done by Command and Control at 12.49am. As recorded in the callout log and report, Dublin Fire Brigade River Rescue Unit, Delta 102, was mobilised at 12.57am and the crew arrived near the barge at Britain Quay, the unit itself had to park at the river end of Hanover Quay at the lock chamber and gates, at 12.58.30am on the 16th October 2008.
29. I am satisfied that the crew of EB1 drove from the Portview Apartments to the river end of Hanover Quay as rapidly as was feasible by the route they took. This was subsequently checked by the Sergeant at Pearse Street Garda Station [63] who also took three minutes to drive the same route. When they arrived at the river end of Hanover Quay, the crew of EB1 had to traverse the entire length of Britain Quay about 80 metres to where the barge was moored. There
24 is no dispute on the evidence that this abandoned quay, and the area behind it, was an overgrown wasteland strewn about with building and industrial debris of all sorts, and with only a very narrow track skirting the unprotected edge of the quay. It was very dark and there was no lighting at all apart from that provided by the torches/flashlights held by the two crew members of EB1. I have no hesitation in accepting that it took them a minute or so to reach the vicinity of the moored barge. I am satisfied that it was 12.56am, or even some seconds later, when the observer of EB1 saw the male in the water about halfway along the channel created by the moored barge and the quay wall, and approximately five feet out from the quay wall and about the same distance from the side of the barge [64]. At approximately 12.51am, the crew of Bravo Alpha 54, an unmarked divisional crime task force patrol car, had been dispatched by Garda Command and Control, Harcourt Square to Hanover Quay to assist the crew of EB1. The crew of BA54 consisted of a driver, an observer and a student garda [65]. They arrived shortly after 12.55am and parked near the EB1 Unit which was itself parked beside a caravan. They exited their patrol car and could see the two crew members of EB1 moving along Britain Quay ahead of them towards the River Liffey with the water of Grand Canal Basin on their right side.
30. I find that at 12.57am on 16th October 2008, five members of the Garda Síochána, that is four female garda and one male student garda, were standing on the edge of the quay at Britain Quay attempting to
25 communicate with and rescue a young male, now established to have been Mr. John Kelly in the water below them. The night was dry but was "pitch dark". The temperature was 6 to 7 degrees celsius and the wind was from the south-west to west with an average wind speed of 20 to 30 kilometres per hour [66]. There was a strong outgoing tide [67]. Several of the members of the Garda Síochána present tried to communicate with the man in the water, but he did not respond in any way. He was kicking his legs, treading water and just his head was above the water. The gardaí noted that his face was very white and his eyes were wide open and staring [68].
31. The observer in EB1 found on the ground at Britain Quay a length of heavy duty plastic covering which had been stripped from some form of cable and she threw it to the man in the water at least twice. The student garda shouted "Grab hold of the rope. It's there beside you." The man in the water made no attempt to catch the "rope" though it landed right next to him [69]. There were ropes and tyres hanging from the side of the barge less than five feet behind the man in the water, and though the student garda called to him to grab them, he made no attempt to do so or to respond in any way [70].
32. At 12.58am, just a few seconds before the crew of Dublin Fire Brigade River Rescue Unit, Delta 102 arrived at the travellers site at Hanover Quay, the head of the man in the water went under the surface of the water. The driver of BA54 pointed to where this
26 had occurred and the crew of Delta 102 could see bubbles rising to the surface of the water. Two fire-fighters in dry suits and flotation devices entered the water at approximately 1.05am. Tragically they were unable to locate the man [71]. Thereafter an extensive search was carried out for over an hour by the three-man crew of the Dublin Fire Brigade Rescue boat using an echo sounder and grappling hook, and by the Garda Síochána helicopter, Alpha Sierra 3, employing high intensity lights, thermal imaging and infrared cameras, but unfortunately all to no avail [72]. During this search the Dublin Metropolitan Region (South Central) acting patrol officer who had been alerted to the incident by the duty sergeant at Irishtown Garda Station was on the scene [73].
33. Some of the members of the Garda Síochána who witnessed the event recalled that the man in the water just put his hands up over his head and went under the water as if he just gave up [74]. Others recall that the man had taken a breath, or a deep breath and went under the water [75]. I am satisfied that one must consider that whatever movements the man may have made at this time may have been entirely involuntary [76]. I consider that the man did not respond to the garda attempts to communicate with him and did not attempt to catch the "rope" thrown to him because he was probably then suffering from the effects of hypothermia and/or water inhalation having been fully immersed in cold water on a cold and windy night for three quarters of an hour [77]. I find it very significant that the Portview Apartment residents
27 noted that he had first started to shout less frequently and less clearly and then had ceased to shout altogether at 12.50am.
34. I find that no blame whatsoever may justifiably be attributed to the five members of the Garda Síochána who were present at Britain Quay at and after 12.56am on the 16th October 2008 for not entering the water in an effort to rescue the unfortunate man. Even if one of them had been a strong and experienced swimmer, to have entered the water at that place and in the conditions prevailing could well have resulted in an even greater tragedy. The weather, lighting and tidal conditions at the time were very bad as has already been described. The echo sounder in the Dublin Fire Brigade River Rescue boat recorded a water depth of ten metres where the man had disappeared under the surface of the water [78]. I am satisfied that members of the Garda Síochána, though they receive swimming lessons as part of their physical training, are not trained to and should not be expected to enter the water to try to effect a rescue in such conditions [79]. The fact that some extraordinarily brave members of the Garda Síochána have done so in the past is not a measure by which to judge other members on other occasions. To enter the water in an attempt to effect a rescue is not advocated by Irish Water Safety [80]. I am satisfied that the five members of the Garda Síochána did all that could reasonably be expected of them between 12.56am and 12.58am on the 16th October 2008 to rescue the man in the water at Britain Quay.
28
35. I find that the responses made on the night of the death of Mr. John Kelly by the Garda Síochána were confused, inappropriate and inadequate. I recommend that an urgent investigation be carried out within the Garda Síochána into the capacity of its members attached to ordinary garda stations to respond correctly and effectively to emergency telephone calls received from members of the public seeking the assistance of the Garda Síochána. I recommend that the strictest measures are put in place to ensure that a member of the public in such circumstances is never met with a jurisdictional objection or told to contact some other garda station or some other agency. I recommend that steps be taken to ensure that the extent of the authority of the Garda Síochána Command and Control dispatcher is clearly understood by all members of the Garda Síochána.
29
SECTION 2
THE CONDUCT AND ADEQUACY OF THE GARDA SÍOCHÁNA INVESTIGATION
1. Because the incident occurred at Britain Quay, which is in the Pearse Street Garda Station District, it became the duty of the Superintendent in charge of that district to carry out an effective investigation into all the circumstances surrounding the incident. The Superintendent in charge of that district in October 2008 [81] appointed a very experienced uniformed sergeant who had also served in the Garda Síochána Detective Branch [82] with the assistance of a number of other members of the Garda Síochána in Pearse Street Garda Station [83] to carry out this task. This investigating team could and did avail of the support and experience of other members of the Garda Síochána, including specialist units within the Garda Síochána whenever necessary. I find that the Superintendent in charge at Pearse Street Garda Station allocated sufficient garda manpower resources to properly complete this investigation.
2. At 12 noon on 16th October 2008, the Sergeant in charge of the investigating team and two of his garda assistants, accompanied by the Superintendent in charge at Pearse Street Garda Station, arrived at Britain Quay. A Garda Sub-Aqua Unit [84] arrived, and at 1.15pm two garda divers entered the water between the quay wall and the moored barge at Britain Quay
30
[85]. At 1.20pm one of the divers located a body just where a young man had disappeared under the water at 12.58am on that morning. The body was lying face down, head facing west and feet pointing east, on the mud and silt on the basin floor. It was not snagged on anything nor was it weighted or held down in any way [86]. The body was lifted by the diver to the water surface and immediately placed in a white impervious body bag in the Sub-Aqua Unit's inflatable Mark 3 Zodiac diving boat. From there it was carried up the quay steps to the surface of Britain Quay by the members of the Garda Sub-Aqua Unit and handed over to the Investigating Unit at 1.30pm [87].
3. The body was dressed in a white hoody with the logo "JK & JWS" in navy on the chest, navy jeans, a black "Levi" belt and white "Lacoste" trainers. The investigating sergeant carried out a search of the clothing. The only item found was a plastic wallet which was in a front trousers pocket. It contained two photographs of members of a family and a social security card in the name of John Kelly and nothing more [88]. A registered medical practitioner summonsed by the Garda Síochána arrived at the scene at 2.15pm. Following an unsuccessful search for any signs of life, at 2.17pm he formally declared the man dead [89].
4. The members of the Garda Sub-Aqua Unit present, the investigating sergeant and the registered medical practitioner all noted that unusually extensive injuries had been caused to the eyes, ears, nose, lips
31 and neck of the body by crabs and other aquatic creatures. No other physical injuries, wounds or signs of trauma were noted [90]. The clothes were waterlogged and mud and silt soiled, but were otherwise undamaged and showed no obvious signs of blood [91]. A sort of bloody froth began seeping from the nose and mouth after the body was laid out on the surface of the quay and was very noticeable against the white of the body bag. No deformity of the head or forehead was noted, nor was any bruising of the face observed or anything unusual about the hands, knuckles or fingers [92]. In the absence of anything to suggest violence to the person or the commission of a crime, the scene was not preserved nor was the State pathologist called. At 3pm the investigating team assisted in transferring the body to an ambulance. It was conveyed without incident to the Dublin City Mortuary at Marino and into the care of a senior pathology technician [93]. The Coroner for Dublin was notified of the incident by the Garda Síochána [94]. The Coroner requested a consultant histopathologist to carry out an autopsy as soon as possible [95].
5. After the body had been identified to the senior pathology technician at the City Mortuary by one of the investigating team [96], it was prepared for the autopsy which took place at 7.30am on the 17th October 2008. The clothes were removed from the body and placed in a disposable bag. Because they were soiled with mud and silt and contaminated with blood and body fluids mixed with and spread about by river water, they were rated a health and safety hazard in
32 accordance with ordinary mortuary procedures. The disposable bag was therefore placed in a clinical waste container and was later taken away for incineration [97]. I find that a member of the investigating team [98] did not, nor did any other member of the Garda Síochána take possession of or sign for any of the clothes of the deceased. Whoever at the Dublin City Mortuary stated the contrary in a telephone conversation with a member of the staff at the funeral home [99] was mistaken in this regard. Had this occurred, two forms would have had to be completed and signed. One of these forms would be filed in the mortuary archives. In addition full details would have been entered into the mortuary computer database [100].
6. I accept what was stated by a member of the family of the deceased at a meeting with members of the Garda Síochána on 12th December 2008 at Pearse Street Garda Station [101] that the mortuary senior pathology technician had told her on the telephone that the clothes were destroyed because they had been in the water and were soiled with blood which came mostly from his face. I do not accept what she now states in her written statement to this inquiry that he [102] had told her that the clothes were badly soaked in blood, most of which had come from the face. I accept the evidence of the mortuary senior pathology technician that he would never use the term "badly" as he would consider that totally unprofessional. He observed no wound on the body capable of producing such an effusion of blood. He stated that any blood
33 staining on the clothes would have been dissipated by 12 hours immersion in tidal waters. He stated that he would have seen it as a serious dereliction of his duty not to have immediately advised the Coroner, the Garda Síochána and the pathologist if he had seen injuries on the body other than those caused by aquatic life or if he had seen significant blood staining on the body or the clothes as such a failure would compromise the proper investigation of a crime [103]. I am satisfied that as a very experienced and long-serving senior pathology technician, he was fully aware of and alert to his duty in this regard.
7. Though he had no recollection of preparing this particular body for autopsy, the mortuary senior pathology technician explained to this inquiry that because the body had been in cold water, the blood would not have fully clotted, even though circulation had ceased for 16 hours or so before it was prepared for the autopsy. He stated that the facial wounds inflicted by aquatic life, round puncture wounds and linear incisions, would have dripped some blood continuously after the body had been placed in the body bag. This blood mixing with river water in the bag would have contaminated all the clothes.
8. I accept the evidence of the mortuary senior pathology technician [103] that had he seen any signs of injury, trauma or wounding on the body other than the injuries obviously caused by aquatic life, he would have immediately informed the Coroner, the Garda Síochána and the pathologist. If he had seen bleeding
34 from the inner ear, he would have suspected a skull fracture and notified these parties at once. If the deceased had suffered ruptured ear drums, this would have been seen and noted during the autopsy, and it was not.
9. Because of the impact of the very extensive injuries caused to the face of the deceased by aquatic life, the Sergeant in charge of the investigating team [104] advised the Superintendent in charge at Pearse Street Garda Station, the Dublin City Mortuary staff and the family of the deceased that a closed coffin burial would be the most appropriate, and that formal identification of the deceased should be by way of fingerprints and dental analysis [105]. Fingerprints were taken from the deceased at the City Mortuary by a member of the Garda Síochána Scenes of Crime Unit [106]. Fingerprint identification was made by the Garda Síochána Technical Bureau [107]. Identification by dental records and analysis was made by a consultant oral surgeon and lecturer in forensic medicine at the Royal College of Surgeons in Ireland [108].
10. On 22nd October 2008 on the eve of his funeral, the mother of the deceased, and the close friend of the deceased who accompanied her, viewed the body at the funeral home [109]. I am satisfied that what they saw was alarming and caused them to genuinely believe that the deceased had been subjected to appalling physical violence prior to his death. The top of the deceased's skull was out of place. His forehead
35 seemed pushed forward and there was dried blood in both his ears. There was a large area of what appeared to be bruising on the left side of his face and the knuckles of both his hands seemed bruised. They noted that an attempt had been made to mask the bruising on the left side of his face with the application of some form of make-up [110].
11. I find that these injuries to the deceased's skull and forehead and the presence of dried blood in the observable outer part of both his ears were not in fact due to injury or trauma prior to his death but to necessary surgical procedures carried out in the course of the autopsy and a subsequent unfortunate slippage of the skull cap [111]. This post autopsy slippage of the skull cap can but should not have taken place, and blood residue should have been entirely cleaned away from the deceased's ears. It is beyond the scope of this inquiry to ascertain how this most unfortunate state of affairs came about.
12. A large number of trained observers came into very close contact with the body of the deceased and had keenly observed his face up to, during and after the autopsy [112]. None had observed a large area of bruising on the left side of the deceased's face or bruising on his knuckles, or any signs of injury or trauma in these areas, or dried blood in his ears. I find that it was forensically correct and reasonable for the investigating team at Pearse Street Garda Station to have concluded on the evidence that
36 whatever had caused the discolouration on the left side of the deceased's face and on the knuckles of both his hands, as seen by his mother and his friend at the funeral home on the 22nd October 2008, it was not caused by any physical injury to the person of the deceased inflicted or sustained in the course of an assault or in self-defence prior to his death.
13. Following the autopsy carried out by him on 17th October 2008, the consultant histopathologist [113] reported to the City Coroner [114] that in the case of the deceased, identified to him as Mr. John Kelly [115], the cause of death was acute asphyxial drowning [116]. Multiple indicators of acute asphyxial drowning were identified and notified in his report to the Coroner. Individually these are consistent with, but not determinative of, acute asphyxial drowning, but taken together, and in the absence of evidence of any ante-mortem trauma, are essentially conclusive of the matter. These indications were:- frothy oedema fluid in the lumen of the main airways: Acute diffuse bilateral severe pulmonary oedema with attenuation and congestion of the septal capillaries: Foreign material present in the airways and in the alveolar spaces: Multiple foci of peri-bronchial and alveolar pigment laden macrophages: Acute diffuse cerebral oedema haemorrhagic congestion of the cerebrospinal fluid producing regions of the brain: Enlarged liver showing the presence of acute congestion but with a normal spleen. The annexed toxicology report on blood and urine samples [117] was positive for ethanol (alcohol) at concentrations of 123 milligrams per 100
37 millilitres of blood and 281 milligrams per 100 millilitres of urine. The drug blood screen result was negative for five common use prescription and nonprescription drugs. The drug urine screen result was also negative for nine serious drugs such as opiates, cocaine and cannabinoids et cetera. The histopathologist told the Coroner at the inquest, and repeated at this inquiry, that this concentration of alcohol, even if the level had been somewhat higher prior to death, would not in his opinion have incapacitated the deceased. The evidence of the girl on the train [118] and the CCTV footage [119] confirm that his gross locomotive skills were not affected nor was his ability to communicate. However, there is evidence that his fine motor skills were adversely affected. He had to ask the girl on the train to roll a cigarette for him. There is also evidence that his mental faculties were impaired and he was suffering episodes of mental confusion. He was going to smoke in a no-smoking area until the girl in the train pointed this out to him. It took three attempts before he recalled the correct mobile number of his sister's partner. He called a mobile phone number of a female to whom he was a complete stranger. He left his seat in the train carriage where he was sitting on the opposite side of a table to the girl. When he returned after a short while, he asked her where her friend was. She asked him what friend and he replied, "The auld lad that was sitting beside you." The girl was and had been on her own. After some further conversation he asked her how she knew Michelle. She asked him who Michelle was and he said, "You know,
38
Michelle from Sunday night." She reminded him that she had never met him before. She recalled that he mumbled something like that he shouldn't take drugs [120]. I find it very probably that what he said was that he shouldn't take drink. As a person who had very recently failed to complete a course of treatment for chronic alcoholism, this was undoubtedly the case, and as the toxicology tests demonstrated, he was entirely drug free.
14. I am satisfied that the findings set out in the autopsy report are compelling evidence that the cause of death was acute asphyxial drowning and that death was not due to ante-mortem traumatic injuries inflicted on or suffered by the deceased prior to or contemporaneous with drowning. However, this does not rule out the possibility of an assault in the course of which the deceased fell or was pushed into the water. The consultant histopathologist did not determine, nor was it his function to determine, the manner of death, for example, was it homicide, suicide, accident, misadventure, disease, natural causes or some unknown cause? To attempt to answer this question, the investigating team had to, and I am satisfied did, carefully and comprehensively examine and scrutinise all the circumstances surrounding his death.
15. Though this was something of which the investigating team was probably unaware, the consultant histopathologist who carried out the autopsy [121] had a specialist professional interest
39 in drownings and apparent drowning incidents and had carried out very many postmortem examinations in such cases because in particular it had been the subject of discussion at meetings of the Association of Clinical Pathology. He [122] was very conscious of the importance of carefully scrutinising the skin and external parts of a body for signs of subtle injuries inflicted by or inflicted upon a deceased before or while in the water, for example closed head trauma, strangulation, defensive arm or hand injuries et cetera. He gave evidence to this inquiry that if he had noted any such injury or sign of trauma he would have informed the City Coroner immediately and suggested that the Coroner call for a full formal forensic autopsy by the State pathologist.
16. The histopathologist stated in his evidence that he was fully satisfied that the apparent injuries to the deceased's head and forehead and the presence of blood residue in both his ears were a result of a reconstruction failure and insufficient cleansing following a procedure to remove the brain. He stated that he had not seen and would certainly have noticed and recorded any bruising, lividity or compression mark on the left side of the deceased's face despite any masking by injuries caused by aquatic creatures. If what the deceased's mother and his friend had seen had been an actual bruise, that is a contusion, this would have signified an ante-mortem trauma and it would have been his duty to have immediately notified the Coroner and suggested that the State pathologist be informed. The same would have occurred had he seen
40 cuts or bruising on the deceased's knuckles. A number of very interesting and informed hypotheses were advanced to account for the areas of discolouration observed by the deceased's mother and his friend on the left side of his face and on his knuckles, but they can never amount to anything more than that. The fact remains, and is unavoidable, that none of the trained observers, the gardaí, the garda divers, the medical doctor, the mortuary senior pathology technician and the pathologist who had seen the deceased's head, face and hands from when he was first lifted from the water to the end of the autopsy procedure saw any of these phenomena which so upset and alarmed the deceased's mother and his friend. I am satisfied that the investigating team were reasonably and properly entitled to conclude that they were not evidence that the deceased had been attacked or had to defend himself prior to his death.
17. The consultant histopathologist accepted in evidence at this inquiry that he had given evidence to the Coroner during the inquest that he had not seen the deceased's clothes at any time [123]. He told this inquiry that had the mortuary senior pathology technician [124] observed, as he almost certainly would have done, that the clothes worn by the deceased were "badly soaked in blood" or even significantly blood stained, he would have treated the death as suspicious, notified the Coroner and suggested a full forensic examination by the State pathologist. He stated that in either of those circumstances the clothes would not have been destroyed because they
41 suggested some ante-mortem injury or injuries which broke the skin of the deceased. However, during the postmortem examination, he found no such injury or injuries other than those caused post mortem by aquatic creatures. Neither did he find any sign of a fracture or of serious trauma to the deceased's nose which might possibly have caused extensive bleeding. He gave evidence that the very extensive injuries to the deceased's ears, eyes, nose, lips, neck and pelvic area on the right side of the body were all classic postmortem injuries inflicted by aquatic predators. Though he observed no blood on the deceased's face or neck during the postmortem examination, he would not be surprised if some blood had dripped from these wounds after the body had been removed from the water and placed in the body bag. I am satisfied that the clothes worn by the deceased were destroyed in accordance with the standard operating procedures of the city mortuary and the investigating team were not in any way remiss in not seeking to preserve them or have them forensically examined.
18. I am satisfied that from the very outset the investigating team and the Superintendent in charge at Pearse Street Garda Station considered that there was no evidence of any offence having been committed in the case of the death of the deceased. This is evident from such decisions as not to advise the Coroner that the death was suspicious, not to preserve the scene and not to request that the State pathologist become involved. Further, at a meeting between the members of the deceased family and members
42 of the Garda Síochána in Pearse Street Garda Station on 12th December 2008, the Superintendent in charge [125] and the Sergeant leading the investigating team [126] both stated openly and unequivocally that they considered that there was no evidence of anything suspicious about the death. I find that this attitude was not unreasonable or irregular by reference to the evidence. However, it might have been better left unexpressed until after the inquest and the conclusion of the investigation into the circumstances surrounding the death. It was undoubtedly a significant factor in misleading the family of the deceased into the genuine, though erroneous, belief that no proper investigation was taking place [127]. I am satisfied however that this belief did not in any manner inhibit the investigating team from carrying out a full and careful inquiry into all the circumstances surrounding the death, nor did it result in any unwillingness on their part to follow leads or seek out evidence.
19. I am satisfied that some individual members of the Garda Síochána involved considered from the outset that this was a case of suicide. Unfortunately through inexperience or lack of discretion, they expressly or by implication communicated this to persons being interviewed by them and this came to the notice of members of the deceased's family. That this was a possibility had also occurred to others. The statement of the registered medical practitioner, who certified death on 16th October 2008, made on the 7th November 2008 to be furnished to the Coroner at the
43 inquest pursuant to the provisions of Section 21 of the Criminal Justice Act 1984 ends with the words, "Impression: Suicidal death" [128]. The doctor in his evidence to this inquiry stated that this was merely an impression from the age of the person and the circumstances and was not intended to be a definitive diagnosis. In his original notes produced in evidence at this inquiry a question mark undoubtedly follows this phrase, but this did not find its way into the statement. I find that even though such thoughts were harboured by individual members of the Garda Síochána, this was not permitted to, and I am satisfied did not in fact, in any way prejudice the proper investigation of all the circumstances surrounding the death of the deceased.
20. It must be understood that the investigating team was not seconded to the task of probing the circumstances surrounding the death of the deceased on an exclusive basis. Each member of the investigating team was still required to carry out all or many aspects of his normal police duties at the same time [129]. The evidence also established that the investigation was not conducted in discreet sequential modules. It was in fact carried forward on several fronts simultaneously but with varying degrees of emphasis [130].
In these circumstances in the interests of clarity and brevity, I describe the work done in general terms but referring to specific details and actual times whenever that is necessary to maintain a proper
44 perspective as to its relevance and sufficiency.
21: After the body of the deceased had been taken from the water at Britain Quay by the Garda Síochána Sub-Aqua Unit at 1.20pm on the 16th October 2008, the Sergeant in charge of the investigating team [131] searched the clothing for identification and carefully scrutinised the entire body for any injury or other indications that the deceased had suffered physical violence prior to his death. Apart from the very extensive and obvious injuries inflicted by crabs and other aquatic creatures while the body was in the water, he saw and found nothing. This search and examination was carried out in the presence of two members of the Garda Síochána who are part of the investigating team [132]. This finding was confirmed by other observers [133]. As previously stated, the Sergeant in charge of the investigating team found a plastic wallet which was later identified by the mother of the deceased as belonging to her son [134]. This wallet was retained by the investigating team and was ultimately returned to the deceased's mother on 23rd December 2009. I am satisfied having heard and observed the Sergeant in charge of the investigating team [135] giving evidence over four days of intensive interview that he was a skilled, experienced and thoroughly competent investigator. The investigating team concluded, and I find they were properly entitled to conclude on the evidence, that no crime had been committed, and the body of the deceased was therefore released and transferred to the Dublin City Mortuary.
45
22. After the body had been removed, the Sergeant in charge of the investigating team and one of the team [136] carried out a search of the quay and of the adjoining wasteland at Britain Quay, especially the area where the body had been found for anything which might in any way be related to the incident. I find that this search was carried out between 3pm and 3.45pm on the 16th October 2008. The evidence was that they found nothing of assistance [137]. No evidence was given as to finding the "rope" which had been thrown to the deceased in the water [138]. I can only assume that this was not considered relevant as it could shed no light on why the deceased was at Britain Quay, what occurred while he was there, or where, when or how he came to be in the water of Grand Canal Basin.
23. After this search the investigating team went to the home of the deceased's mother [139] and spoke to her and other members of the family. They were told that the deceased had gone to Athy, Co. Kildare on the morning of the 15th October 2008 and had not returned as expected to the house of his sister and her partner where he was staying [140]. The investigating team were given the deceased's mobile telephone number. When investigating the mobile phone calls made by the deceased on 15th October 2008, the investigating team ascertained that he had telephoned his sister [141] on his mobile telephone at 18.58.30pm on 15th October 2008 and told her that he was getting the 1930 hours bus from Athy to Dublin. At 19.36.57pm he again telephoned her on his mobile phone and told her that
46 he had missed the 9.30pm bus and would get the bus at 2200 hundred hours [142]. He did not in fact get this bus.
24. On 17th October 2008 a sister of the deceased telephoned Pearse Street Garda Station and spoke to a member of the investigating team [143]. She told him that on 16th October 2008 her mother and her sister had called the deceased's mobile telephone number on three occasions. On two of these it had "rung out" but on the third call it was "turned off". She urged that the Garda Síochána should obtain all the deceased's mobile phone records without delay. This was in fact already in hand. The Sergeant in charge of the investigating team [144] had set about obtaining a record of the deceased's incoming and outgoing calls on his mobile telephone for a period from the 15th October 2008 to the 18th October 2008 from the service network provider, Meteor. He had also requested a cell-site analysis in an attempt to locate the mobile telephone which had not been found on the deceased person or at Britain Quay [145]. In a statement taken later by the Sergeant in charge of the investigating team from a passenger on the late evening train from Carlow to Dublin on 15th October 2008, she recalled [146] that the deceased had placed a small black mobile phone on the table between them in the carriage and asked could he use her mobile phone to make some urgent calls as the battery on his mobile phone had no charge. By reference to the time of departure of the train from Athy Station and its arrival at Heuston Station, Dublin, this had to have
47 taken place between 9.30pm and 10.49pm on the 15th October 2008. This was the last evidence the investigating team obtained of a positive sighting of the deceased's mobile telephone.
25. On 24th October 2008 the Sergeant in charge of the investigating team again asked for a cell-site analysis to try to locate this mobile telephone [147]. On 21st October 2008 the Garda Síochána Sub-Aqua Unit at the request of the Sergeant in charge of the investigating team carried out an extensive search of the bed of Grand Canal Basin at and around Britain Quay in an unsuccessful attempt to locate the deceased's mobile telephone [148]. The evidence of the garda divers to this inquiry was that having regard to the silty and muddy nature of the bed and the constant movement of the water in the area, they were not surprised that their search was unproductive. The service network provider, Meteor, confirmed to the investigating team that no outgoing calls had been made on the deceased's mobile number after 23.43.27pm on 15th October 2008 [149]. The investigating team were advised by the Garda Síochána Liaison and Protection Branch of the Security and Intelligence Unit that a cell-site analysis location of the deceased's mobile phone was not therefore possible. I find that the investigating team efficiently and expeditiously endeavoured to locate the deceased's mobile phone by every available means.
26. The mother of the deceased [150] and one of his sisters [151] called the deceased's mobile phone
48 number on the 16th October 2008. They state that it "rang out." Another sister and her partner [152] rang his mobile number also on the 16th October 2008, and they state that it was "turned off". His sister [153] recalled [154] that she had tried his number again sometime after 3.30pm on 16th October 2008 and it was "turned off". For these reasons the family of the deceased believed that his mobile phone did not go into the water with the deceased, that the handset rang somewhere after the deceased's death and was then switched off by someone. The Sergeant in charge of the investigating team interviewed and obtained statements from all but three of the persons identified on the records provided to the investigating team by Meteor as having made calls to the deceased's mobile telephone number between 23.40 hours on 15th October 2008 and 23.59.59 hours on 18th October 2008. There was evidence that Meteor and O2 were separate entities in 2008 [155]. These were 24 calls made by 14 persons, all identified as friends of the deceased. One of these stated that the deceased's phone was "off" and "it was turned off" [156]. Another [157] stated that he rang the deceased on 16th October 2008 at 09.23am and was nearly sure that he got no answer. Another friend [158] said that it was a usual occurrence for the deceased not to have his mobile phone turned on or it ringing out, but if he missed your call he would always call you back. This suggests that the deceased had a network provider message service on his mobile phone rather than a voicemail facility [159]. This friend [160] stated that any time he tried to contact the deceased around
49 the 16th October 2008, he was pretty sure that there was no answer from his phone by which he meant that he was not sure whether the phone was connected or not. Another friend [161] rang the deceased's mobile phone at 15.19.47 hours on 15th October 2008 and said that his phone was "switched off". Another friend [162] said she rang his phone to see if he would answer and the phone rang but there was no answer. Another friend [163] said that she rang the deceased's mobile number, that the phone did not ring. "There was no ringing noise as if it was out of coverage or something like that."
27. On the 18th October 2008 [164], and on the 24th November 2008 [165], the Sergeant in charge of the investigating team had asked that a cell-site analysis be carried out to establish the whereabouts of the deceased's mobile phone. I am satisfied on the evidence [166] that in 2008 this could only have been a 2G triangulation trace using cell-tower coordinates and would have required outgoing activity on the mobile phone handset with a subscriber identity module (SIM card) in place. Unfortunately it was not possible for the Garda Síochána to locate the whereabouts of the deceased's mobile phone by this means as no outgoing activity was detected on his mobile phone between 22.40 hours on the 15th October 2008 and 23.59.59 hours on the 18th October 2008 [167]. Each mobile phone has a 15-digit number unique to that phone. If there had been any outgoing activity on the deceased's handset, even using a different number, that would show on the network
50 provider's records. Unfortunately in 2008 there were no built-in devices in mobile phones to enable them to be traced. There was simply no outgoing activity at all on the deceased's mobile phone in the indicated period.
28. I am satisfied on the evidence that the family of the deceased and his friends were incorrect in believing that the deceased's mobile phone "rang out" on the 16th October 2008 and was then "turned off". I am satisfied that what they in fact heard was a service tone and later there was no service tone. Unless they could have been present with the handset, they could not say whether the phone rang or that it was turned off. If what the deceased said to his friend [168] at approximately 15.41.11pm on 15th October 2008 was true, that he was "getting call credit", and if what he told the lady on the train was true [169], that the battery in his mobile phone was dead and he needed to make a call, then his mobile phone was viable but it would not ring unless the battery was recharged or replaced. There is nothing on the evidence obtained by the investigating team to suggest that either occurred. Indeed the converse is indicated.
29. I am satisfied on the evidence that what the members of the family of the deceased heard on 16th October 2008 was not the deceased's handset ringing but only the network trying to make a contact with what it still recognised as a viable number, even though the battery was dead. Even if it was out of
51 credit, it would still be perceived by the system as viable for incoming calls for an extended period of perhaps up to a year. The same would be true if the handset was in the water but with an uncharged or with no battery [170]. The ringing tone would continue for a short period, mostly 30 seconds in mobile phones of 2008 manufacturer and then the automatic message mode would be activated. Unless physically present with the mobile phone handset, the members of the family of the deceased and his friends could not say that it was "turned off" or not answered. All they could possibly know is that where there had been a network tone, there was now no tone, essentially because the network could no longer locate and get through to the handset. This could be due to a number of factors such as that the SIM card had been removed deliberately or had fallen out accidentally, that the phone was totally out of coverage or that the phone had been destroyed [171]. The evidence of what the members of the family of the deceased heard on 16th October 2008 does not establish that his mobile phone was not in the water. If the handset was in the water, even in salt water without any charge in the battery and with the SIM card in place, it would still register with the Meteor network as a live number and the network tone would still be heard by a caller. If a short circuit occurred by reason of a charge remaining in the battery, or if the connection circuitry of the phone was corroded by the water, the handset would then be destroyed and thereafter all network tone would cease [172]. I find that the investigating team with the assistance of Garda Síochána Special Units did all
52 that was physically and scientifically practicable to trace the whereabouts of the deceased's mobile phone but unfortunately without success.
30. Commencing on the 21st October 2008, the investigating team embarked on a very wide-ranging search for closed circuit telephone footage which might help them to establish the deceased's movements on the 15th and 16th October 2008 [173]. In one form or another this search continued until 10th November 2008 and perhaps even a little beyond that date. All three members of the investigating team were involved in this search, but principally the Sergeant in charge. The CCTV system at Heuston Station showed the deceased walking away from the Carlow to Heuston Station train at 10.47.06pm on the 15th October 2008. The investigating team subsequently checked the times displayed on all CCTV footage showing the deceased against the time shown on what was described as "the Talking Clock" [174]. On this basis the time when the deceased is first seen on CCTV walking on a platform at Heuston Station was 10.49.54pm on 15th October 2008.
31. The investigating team ascertained that no CCTV footage was available at Athy Railway Station [175]. The CCTV cameras outside Heuston Station showed the deceased boarding a Luas tram going in the Connolly Station direction and not in the opposite direction towards his residence. The investigating team next identified the deceased alighting from a Luas tram at Connolly Railway Station Luas halt. The time
53 displaced on the CCTV record was 11.18.36pm on 15th October 2008. The investigating team carried out a detailed CCTV search at every office, business, hotel and private residence which had an external CCTV camera, on Custom House Quay, from Talbot Bridge to Spencer Dock and on City Quay and Sir John Rogerson's Quay down river from Talbot Bridge and on Hanover Quay and a number of streets between it and Sir John Rogerson's Quay. The deceased was identified on CCTV footage walking on the footpath outside the O2 office building on Sir John Rogerson's Quay in the direction of Britain Quay between 11.35.02pm approximately and 11.35.25pm on 15th October 2008. On the 2nd March 2009 a member of the investigating team found that by comparison with the Talking Clock, this time was 58 seconds slow [176]. The CCTV stills from outside the O2 building produced to this inquiry clearly identify the deceased, both from the front and the rear, walking unaccompanied past the columns at the front of the building. The disks from which these stills were taken were obtained by this inquiry and were played. In the moving images a person, probably a male, is seen walking approximately twenty feet ahead of the deceased on the same footpath and in the same down-river direction. He appears on camera at 23.35.10pm and disappears off camera a few seconds later. This person might have been wearing a high visibility jacket. At 23.35.19pm a person, again probably a male, appears on camera walking towards the deceased on the same footpath. This person is clearly visible on camera at 23.35.23pm. This person appears to be wearing a dark top, dark trousers and light
54 coloured footwear. He and the deceased pass each other a second or so later. At this point a motor car being driven in the up-river direction passes them. There is no evidence on camera that the deceased paused or stopped or made any gesture acknowledging either of the pedestrians or the occupant/s of the motor car. There was no evidence before this inquiry that any of these persons had come forward, even after the Prime Time, television programme, or had been traced by the Garda Síochána. This was the last sighting of the deceased the investigating team was able to obtain. At 12.18.11am on 16th October 2008, a man was seen on CCTV footage walking towards Hanover Quay. This man was subsequently identified by the investigating team as a security man employed by a company which provided security patrols in that area every day of the year and 24 hours per day [177]. Unfortunately their patrol area did not include Britain Quay.
32. From where the deceased was last observed, it was a straight walk of approximately seven to ten minutes to the area of Britain Quay facing the moored dredging barge. By this route Britain Quay could be accessed through an aperture which had been forced in a tall steel security fence by bending one of the uprights. Alternatively, the deceased could have crossed from Sir John Rogerson's Quay to Hanover Quay by one of the linking streets and then turned on to Britain Quay at the unofficial halting site at the three large lock chambers at the end of Hanover Quay. This would have been a longer route to walk [178]. In all sightings
55 on CCTV from the platform at Heuston Station to the footpath outside the O2 office building, the deceased is not seen in the company of any other person or persons and is not seen to be carrying anything [179]. I am satisfied that it was proper and reasonable for the investigating team to have inferred that the deceased arrived unaccompanied and carrying nothing in his hands at approximately 11.40pm or 11.45pm on the 15th October 2008 in the area of Britain Quay on the opposite side of Grand Canal Basin from the Portview Apartment complex on Thorncastle Street. The unofficial halting site was at the end of Britain Quay nearest to Hanover Quay and there was a private residence known as Grand Canal House on the opposite side of the three-lock chambers from this unofficial halting site.
33. The Sergeant in charge of the investigating team obtained from the management company a list of all the apartments in the Portview Apartment complex. There were 36 apartments. The investigating team prepared a short questionnaire form and carried out a door-to-door search for information at each apartment, at the two caravans parked at the unofficial halting site and at Grand Canal House. Many of the apartments in the Portview Apartment complex had more than a single occupier. Every person who stated on the questionnaire that he or she had seen or heard anything or had telephoned the emergency services on the night of the 15th October or the early hours of the 16st October 2008 was interviewed by the members of the investigating team, some on more than one
56 occasion. The investigating team obtained completed questionnaires from the husband and wife who, with their five-year-old infant, occupied one of the two caravans at the unofficial halting site at the end of Britain Quay. On the 9th November 2008 a statement was taken from the husband [180]. His wife stated in the questionnaire that she heard or saw nothing. Her husband stated that he was watching television and someone, he thought it was a male, had run past the caravan towards the dock, he thought at between midnight and 2am on the 16th October 2008. He stated that he was accustomed to persons jogging in the Hanover Quay area at night and therefore took no notice of this runner. The investigating team obtained a completed questionnaire from the occupant of the other caravan on the unofficial halting site at Hanover Quay [181]. He stated that he had seen or heard nothing on the night of 15th October 2008, early morning of 16th October 2008.
34. One of the residents of the Portview apartment complex [182] stated that at about 12.15pm on the 16th October 2008 she kept hearing very loud intermittent shouting while she was standing on the balcony of her apartment. This was on the fourth floor of the complex looking across Grand Canal Basin. She saw a person in a high visibility jacket standing on a building inside a large construction site behind Britain Quay. He was on the River Liffey side of that site and she decided that this person was in a better position to do something about it. She herself telephoned Irishtown Garda Station at 12.37am. The
57 investigating team ascertained the name of the person she saw and took a statement from him. He was a security man on duty at this site [183]. He stated that he had seen or heard nothing untoward during his shift, 5pm on the 15th October 2008 to 8am on 16th October 2008, until he noticed the arrival of the Garda Síochána and the fire brigade units. He told the investigating team that fellows had been drinking at the end of the quay during the summer months but he had not seen them there since one of them had hit him with a bottle in October 2008.
35. On the 22nd October 2008 a member of the investigating team spoke to the occupier of Dock House, Grand Canal Docks and he completed a questionnaire [184]. He stated that he had not heard or seen anything unusual that night. He stated that a lot of youths had been drinking at Tobin's Corner lately up beside the barge. Tobin's Corner is the point between the River Liffey and Grand Canal Basin at Britain Quay where the deceased drowned. Before all this on 18th October 2008, the Sergeant in charge of the investigating team had requested the Superintendent in charge at Pearse Street Garda Station to direct the station Night Unit to go to Sir John Rogerson's Quay and Britain Quay that night between 11pm and 1am because he believed that this area was commonly frequented by persons drinking, and he hoped that this might lead to information as to the deceased's movements. He was anxious that this should be done as soon as possible. On the 19th October 2008, the Night Unit replied to the Sergeant in charge
58 of the Investigating Unit that they [185] had searched this area as directed between 11.30pm and 11.40pm, and again between 11.45pm and 1am and had accosted no one in the area during their search and had obtained no information in relation to the incident. On the 10th March 2008 the investigating team received a meteorological report and a tide and water depth report [186] which had been requested by the Sergeant in charge of the team. The meteorological report stated that in the Dublin 2 area between midnight and 1am on 16th October 2008, the weather was dry with partly cloudy skies. Visibility was 30km or better. The temperature was around 6 or 7 degrees celsius with south-West to west winds with a mean speed of 20 to 30 kilometres per hour. There was universal agreement amongst all witnesses that this was a dark, windy and very cold night.
36. I am satisfied that the investigating team were properly and reasonably entitled to conclude from these statements that there was evidence that from approximately 11.40pm on the 15th October 2008 onwards a young male at Britain Quay opposite the Portview Apartments was shouting repeatedly and at short intervals a single word, that there was no other noise or answering shout or call, that there was no noise of a fight or a struggle, that shortly after midnight the cry changed from what the majority of listeners in the Portview Apartment complex thought was "hey" to what the majority thought was "help", and that between midnight and 12.15am a person wearing a white top was
59 seen struggling in the water between the dredging barge and a flight of stone steps leading down from the surface of Britain Quay to the water. As no other person was at any time seen or heard, unfortunately the only conclusion that can be drawn was this was the same person seen in the water nearby by five members of the Garda Síochána between 12.56am and 12.58am on 16th October 2008 and subsequently identified as the deceased. Apart from this, the investigating team, though they followed every lead, were unable to obtain any evidence as to why the deceased went to Britain Quay, what he was doing there between 11.40pm on 15th October 2008 and 12.15pm on 16th October 2008, or how he came to be in the water.
37. The family of the deceased believed that the deceased had either gone to Britain Quay to meet a girl [187] or had been lured or brought to Britain Quay [188] and had been mugged, robbed and fell or was pushed into the water. The basis for this belief was that they were convinced the deceased did not know the area at Britain Quay, his sister stated that he could not swim, though he had tried, and was afraid of the water, and a number of items which they concluded he had in his possession on 15th October 2008 were not found. These items were a red and white bag from a shoe shop in Athy [189], a blue plastic carrier bag with some Dutch Gold pint cans [190], a pair of Fred Perry runners [191], the proceeds of a Job Seeker's Allowance cheque for €197.80 [192], a mobile telephone and cigarettes [193] and a bracelet worn on one of his
60 wrists. The Sergeant in charge of the investigating team was first told about these items on 20th December 2008 when he brought members of the deceased family to Britain Quay. I have already dealt with the issue of the mobile phone. At 3.41.11pm on 15 October 2008, the deceased telephoned a friend and told her that he was in a shop in Athy purchasing runners [194]. At 4.55.04pm on 15th October 2008, the deceased phoned his sister on his mobile phone and told her that he had cashed his cheque and had bought runners [195]. CCTV footage from an off-licence premises at Athy at 9.12.03pm on 15th October 2008 shows the deceased leaving the shop carrying a blue bag and a red and white bag in his right-hand [196]. The deceased boarded the Carlow to Dublin Heuston Station train at Athy Station at approximately 9.37pm [197]. The girl he sat opposite in the carriage on the train noted that he had with him a blue plastic bag which contained six pint size cans of Dutch Gold, three of which he drank during the journey to Heuston Station [198]. The girl on the train, who was extraordinarily perceptive and had a most detailed recollection of events during the journey from Athy to Dublin, made no mention of the deceased having a red and white shoe bag with him on the train. There can be no doubt from the CCTV footage that the deceased carried no bags of any sort away from the train. On the 19th February 2009, the Sergeant in charge of the investigating team attended at the Lost Property Department at Heuston Station, and with the assistance of the person in charge carried out a search for a pair of Fred Perry runners, but with no success [199].
61
38. There is CCTV and other evidence [200] that the deceased made a number of purchases in Athy between 3.15pm and 09.12.03pm on 15th October 2008, namely runners, mobile phone credit, a meal, drink in a public house and six Dutch Gold pint cans at an off-licence. His wallet, though empty of money, was found in his trousers pocket after his death. Certainly no cigarettes were found. These were last observed by the girl on the Athy to Heuston journey [201]. No description or the details of the bracelet said to have been worn by the deceased or its provenance or cost appear to have been provided to the investigating team. Several trained observers noted the position and appearance of the deceased's hands post mortem [202]. None of them noticed any sort of jewelry on his wrists or marks of the same. Had the deceased been wearing a bracelet on one of his wrists, I am satisfied that it would have been bagged and preserved by either the Garda Síochána or the mortuary senior pathology technician [203]. I am satisfied that the investigating team were properly and reasonably entitled to conclude that the fact that none of these items was found, especially in the circumstances mentioned, was evidence that the deceased had been the victim of a crime or violence.
39. On the 22nd October 2008, Meteor provided the investigating team with the printout of the time, duration and destination of all outgoing calls made on the deceased's mobile phone on 15th October 2008, and the time duration and origin of all incoming calls
62 made to the deceased's mobile phone on 15th and 16th October 2008 [204]. On the 27th October 2009 a private investigator, retained by the family of the deceased, on 17th November 2008 sent an annotated list of outgoing calls made on the deceased's mobile phone on 15th October 2008 to the Garda Síochána, together with a list of outgoing calls for the entire month of October 2008. The investigating team ascertained that the deceased had made a 085 call and the girl on the train had made a 086 call on his behalf, both calls on her mobile phone at 9.42pm and 9.56pm respectively during the journey from Athy to Heuston Station on 15th October 2008 [205]. Almost all of the calls made were identified by members of the deceased's family as calls to and from family and known friends of the deceased. These friends were interviewed by the investigating team and statements taken. They were all terribly shocked but could provide nothing of assistance to the investigating team. Overall 68 statements were taken by the investigating team during the course of their investigation and all were furnished to the City Coroner [206]. Two of the numbers called by the deceased on 15th October 2008, one number on his own mobile phone and the other on that of the girl on the train [207], could not be identified by the members of the deceased's family. The Meteor printout showed that at 20.02.35 hours, 20.04.11 hours, 20.06.20 hours, 20.13.56 hours and 20.43.27 hours on the 15th October 2008 the deceased had telephoned a 085 number. His calls were not answered. These were the last calls made on the deceased's mobile phone. The 086 call made by the
63 girl on the train on her own mobile phone on behalf of the deceased at 9.56pm on 15th October 2008 was to the mobile phone of his sister's partner who originally was to have collected the deceased from the Athy to Dublin bus at Newlands Cross [208]. The 085 call, which the deceased had himself made on the mobile telephone of the girl on the train, was not answered. The investigating team with the assistance of the Garda Síochána Security and Intelligence Unit on 13th February 2009 ascertained that the registered owner of the number last called on the deceased's own mobile phone was a 14-year-old girl living in Athy [209]. The registered owner of the 085 number called by the deceased on the mobile phone of the girl on the train was a woman living in Gorey, Co. Wexford [210]. Neither of these females had ever heard of the deceased nor did they know why he was telephoning them. The registered owner of the 085 number called by the deceased on the mobile phone of the girl on the train had a former partner living in the Tallaght area. She was therefore shown a photograph of the deceased by the investigating team but confirmed that he was not her former partner whose name was very different from that of the deceased [211].
40. An acquaintance of the deceased told the investigating team that he had met the deceased in Athy on the 15th October 2009 and they had a few drinks together. He noticed two females in the door of the public house who he thought were waiting for the deceased. He stated that the deceased told him that one was his sister who lived in Athy and the
64 other was a girl he had met in Athy [212]. The deceased's sister who lived in Athy told the investigating team that it could not have been her as she had told the deceased that she would not be at home on the 15th October 2008 as she had to attend a training course on that day [213]. I am satisfied that the investigating team were properly and reasonably entitled to note what was stated by this man but also to have regard to the CCTV evidence and to the evidence of the girl on the train that the deceased had boarded and left the train from Athy at Heuston Station on his own, had boarded and left the Luas tram on his own and had walked to the point outside the O2 office building on Sir John Rogerson's Quay on his own, and that once he had left the train he was manifestly carrying nothing.
41. The investigating team spent a great deal of time and effort locating and interviewing persons reported to them as claiming to know what had happened to the deceased. When investigated, all this supposed information was seen to be based on nothing but baseless loose talk, surmise, conjecture, hearsay, self-delusion and perhaps even worse after the deceased's family had offered a substantial reward for information. The incident had featured on the RTE leading current affairs programme, Prime Time, with the title "Death in the Docklands" on 22nd October 2008. The Sergeant in charge of the investigating team, with the support of his superior officer, had requested that the deceased's death should be featured on the Garda Síochána RTE telephone programme
65
Crimecall [214]. This did not occur and no explanation as to why was offered by the Garda Síochána Unit in charge of that programme. The investigating team took a statement from an acquaintance of the deceased on 18th November 2008 [215]. It had been reported to the investigating team that the deceased had been infatuated with this particular female and had left a suicide note mentioning her. On enquiry, the investigating team ascertained that the supposed suicide notes was no more than an entry by the deceased in some diary or notebook expressing affection for this particular female. On the 29th February 2009, the investigating team took a second statement from this female. On this occasion she stated that an acquaintance of hers [216] had told her that another acquaintance [217] had said to him and to another acquaintance [218] that he knew the guys that had murdered John Kelly. The investigating team went to enormous difficulty in tracing these persons and in obtaining statements from them. When interviewed by the investigating team, this person [219] denied that he had said this and asserted that all he had said was that as he was from the local area and if people were caught he would know them. One of the other two [220] stated that what he had said was that he knew who did it, there were three lads up there and they were always mugging and robbing people up there. The investigating team were not aware of any such muggings or robberies in what was their own garda station district. The Sergeant in charge of the Investigating Unit in order to be sure carried out a search on the Garda Síochána
66 computerised database-PULSE system for any mention of any such crimes and found none. There was also a claim that three or four other persons had died in similar circumstances to the deceased in the same area. This was also investigated by the investigating team and found to be baseless [221].
42. In his statement to the investigating team the acquaintance of the deceased who recalled that he had spoken to the deceased in the Supermacs restaurant in Athy and in a public house next door to it between 7pm and 8.30pm on the 15th October 2008 claimed that the deceased had spoken about owing money to people in Dublin [222]. In a conversation which this same person had with a private investigator acting on behalf of the deceased's family [223], it is stated that the deceased had told him that he owed people in Dublin money and he was afraid that he was going to be killed [224]. The investigating team made enquiries about this from the deceased's family and from his closest friends. They ascertained that the deceased did owe some money to some family members. Neither his family nor his friends had ever heard of his owing money to anyone in Dublin nor was there anything in his lifestyle or behaviour signifying that he did. The investigating teams ascertained that he did not owe money in Athy [225]. 43. Two events occurred which to the family of the deceased seem related to each other and somehow to the death of the deceased and led to insistent demands by them for a full investigation by the investigating team. The first incident was that at 12.55am on the
67
16th October 2008, someone sent a text message to the mobile telephone of a next-door neighbour and a friend of the deceased asking if it was Joyce Kelly. This was not the neighbour's name and she did not recognise the originating mobile phone number [226]. The second incident was that the deceased's mother found a purchase receipt for cigarettes in the name of Burke in the pocket of one of his garments left in her house. When the recipient of the text message heard of the death of the deceased, she told his sister and her partner about the strange text message she had received early that morning [227]. They called the originating mobile number and spoke to a man [228]. They were not satisfied with his explanation for the text message and contacted the Sergeant in charge of the investigating team. He interviewed the man on two separate occasions and took two statements from him [229]. Each of the three accounts given by this man for sending the text message were different. In one account he said that he had purchased the mobile phone, on which he had sent the text message, from a man named Sean Burke in a named public house in Tallaght which is quite near to the deceased's family home. In a subsequent account he said that this was just something he thought up on the occasion and he had in fact obtained the mobile phone from the son of a former girlfriend and that the name 'Sean Burke' was just the first name that came into his head on the previous occasion. The investigating team were satisfied that this man sent the text message but that the mobile phone he had used to send it was not the missing mobile phone of the deceased. They were
68 prepared to accept at face value his ultimate explanation as to how he had acquired the mobile phone and his reason for sending the text message. I am satisfied that this was a proper and reasonable decision for the investigating team to take, despite his evasions and wasting very considerable Garda Síochána time. Their priority was to investigate the circumstances surrounding the death of the deceased to which this business contributed nothing.
44. The deceased's mother found a receipt for the purchase of a carton of cigarettes at O'Hare Airport, Chicago on the 21st September 2008 in the name of Burke in a pocket of a garment which the deceased had left in her house. The family of the deceased connected this with the affair of the text message and were again very concerned. The investigating team identified the person named in the receipt. On the 11th March 2009 his solicitors furnished the investigating team with a statement by him explaining the purchase of the cigarettes [230]. He stated that he had purchased the cigarettes at O'Hare Airport, Chicago on the 21st September 2009, and had flown back to Dublin on an Aer Lingus flight on the same day. He gave the cigarettes to his father [231], and he in turn gave them to the purchaser's uncle [232] who lived in a city centre apartment. His uncle told him that he had disposed of the airport bag in which the cigarettes had been contained in a bin at the apartments, but he could not say if there was a receipt in this bag. On enquiry by the Sergeant in charge of the investigating team, Aer Lingus confirmed
69 that a person of that name had occupied a seat on their flight from Chicago to Dublin on 21st September 2008 and there was no other person of that name on the flight [233]. No evidence has ever been found to explain how the purchase receipt [234] came to be in the pocket of a garment of the deceased in his mother's house. I am satisfied that it was proper and reasonable for the investigating team to have concluded that it was of no assistance to them in their investigation of the circumstances surrounding the death of the deceased.
45. I am satisfied that the investigating team had completed most of their investigation by the 19th March 2008. On the 19th March 2008 the investigating team submitted its report to the Superintendent in charge [235] who careful considered it. On the 28th April 2009 he submitted it to the Chief Superintendent at Pearse Street Garda Station. Subsequently, this report formed the basis of the material submitted to the Dublin City Coroner. The inquest was scheduled for the 27th May 2009 at 10am, and the Sergeant in charge of the investigating team so advised the sister of the deceased, who was the agreed representative of the family, by telephone on the 13th May 2008 [236]. On the 29th May 2008 and the 2nd June 2009, the private investigator retained by the deceased's family telephoned the Sergeant in charge of the investigating team with information that he had received [237] about an incident involving the deceased at a bar near O'Connell Bridge on the 15th October 2008. However,
70 they both agreed that this information was not worth pursuing as amongst other things it was stated to have occurred between 8.30pm and 9pm on the 15th October 2008 at which time there can be no doubt that the deceased was on the Carlow to Heuston Station train. On the 20th January 2010, this same private investigator informed the Sergeant in charge of the investigating team of a report he had received of a man who allegedly had exited from a taxi without paying on the 15th October 2008 stating that he was John Kelly. This was investigated by the investigating team and found to be of no value to the investigation. On the 23rd December 2009, the mother of the deceased told the Sergeant in charge of the investigating team that a friend of the deceased [238] had told her that a particular man [239] had a row with the deceased a week or two so before his death [240]. On the 26th January 2010 the Sergeant in charge of the investigating team interviewed this man and took a statement [241]. On the 10th March 2010 the Sergeant in charge of the investigating team reported to the Superintendent in charge at Pearse Street Garda Station that this had nothing to offer [242].
46. On the 21st September 2015, two members of the Garda Síochána, (the investigating team had long since been disbanded and the Sergeant in charge seconded to other duties outside Pearse Street Garda Station), called to the residence of the mother of the deceased and showed her two anonymous letters which had been received at Tallaght Garda Station in 2014. These
71 purport to identify a female and a male whom the deceased was to meet on the night of the 15th October 2008 [243]. This matter was investigated by a member of the Garda Síochána at Pearse Street Garda Station [244]. He concluded that these letters were of no assistance whatsoever. I am satisfied that his decision was entirely proper and reasonable.
47. I am satisfied that the conduct and the adequacy of the Garda Síochána investigation of the circumstances surrounding the death of the deceased was professional, thorough, expeditious, comprehensive and sufficient.
SECTION 3
THE CORRECTNESS OR OTHERWISE OF THE INFORMATION PROVIDED BY THE GARDA SÍOCHÁNA TO THE FAMILY OF JOHN KELLY IN RELATION TO THE INJURIES SUSTAINED BY HIM
1. Three of the investigating team went to the residence of the mother of the deceased at 1600 hours on the 16th October 2008. She was present with a friend. Very understandably she was shocked and distraught when the Sergeant in charge of the investigating team [245] told her of the death. She was able to identify the wallet produced by the sergeant as being that of her son. Other members of the family were contacted and came, or were brought by the Garda Síochána to the house. It has been stated that the sergeant told the mother of the deceased that
72 he had seen the body from the waist up and there was not a mark on it. This was denied by the sergeant [246]. He stated that before going to house, the investigating team had returned to Pearse Street Garda Station. From there he dispatched a Form C71 to the Dublin City Corner informing him of the incident. He then telephoned Dublin City Mortuary and made arrangements for non-visual identification of the body as he considered that visual identification would be inappropriate because of the severe facial disfigurement caused by crabs and other aquatic creatures. I am satisfied that the sergeant did not say this to the mother of the deceased. He would have known that this could not, without having serious consequences, have been said even as a well-intentioned white lie in the context of an unexplained and uninvestigated death. The sergeant stated [247] that he had explained to the partner of the deceased's sister [248] what had happened, that there would be a postmortem and that identification procedures, other than visual, should be adopted. I am satisfied that this is what in fact occurred. It is in keeping with the measures he stated he adopted before going to the house and his statement and evidence in this regard is corroborated by the evidence of the City Mortuary senior pathology technician [249].
2. Apart from what he observed in examining the whole body immediately after it had been recovered from the water by the Garda Síochána Sub-Aqua Unit, I am satisfied that the Sergeant in charge of the
73 investigating team had no other information which he could have imparted to the family of the deceased as to injuries inflicted on the body [250]. His opinion that the injuries he observed had been caused post mortem by aquatic creatures was corroborated by the autopsy, but that report was sent by the pathologist directly to the City Coroner and was not available to the sergeant prior to the inquest [251]. It was not until 11th November 2008 that a sister of the deceased [252] states that she was told by the senior pathology technician [253], during a telephone call that she made to the Dublin city Mortuary, that the deceased's clothes were badly soaked with blood, most of which would have come from his face. The mortuary senior pathology technician denied that he had said this and denied that the clothes were badly soaked with blood. The Sergeant in charge of the investigating team had an entry in his notebook that the mortuary senior pathology technician told him that he did not tell anybody that the face of the deceased had a bruise on the left side, or that his knuckles were bruised or that he had blood in his ears.
3. In a "list of discrepancies" dated 18th November 2008 which was prepared by the partner of a sister of the deceased [254], two of the 20 matters listed as requiring an answer from the Garda Síochána were - why were we told it would have to be a closed coffin, and mother saw bruising on his left cheek and on his knuckles in the open coffin? The Sergeant in charge of the investigating team gave evidence that he obtained a copy of this document, though he could not
74 recall how he had obtained it. In her account of the meeting at Pearse Street Garda Station on 12th December 2008 between members of the family of the deceased [255] and members of the Garda Síochána [256], the sister of the deceased states that she brought up that, "It had been advised to have a closed coffin," but her mother had asked to see the body at the funeral home and saw that there was bruising on the left side of his face, dry blood in his ears and his knuckles on both hands were badly bruised [257]. In her handwritten notes of that meeting, the garda note-taker [258] records, "(Sister of the deceased), (mortuary senior pathology technician), (Coroner), the clothes being destroyed. Blood on clothes from face. Face bruised. Knuckles bruised. Blood in ears." The transcript prepared from these handwritten notes contains more detail than in the original note so I have referred to the original note rather than the transcript. In her statement the sister of the deceased [259] states, "We were told quite bluntly by Superintendent [260] that they could not comment on this and we would have to wait for the inquest on this." In the typescript, (there appears to be a page missing from the handwritten notes), the Superintendent in charge at Pearse Street Garda Station is recorded as having replied that, "The pathologist must answer these questions as they are the trained professionals," and the partner of the sister of the deceased asks how long it would be before the inquest.
4. I am satisfied on the oral evidence and from the
75 documents furnished to the inquiry, by the family of the deceased [261], by the Garda Síochána [262] and by the solicitors for the Sergeant in charge of the investigation, that the only information provided by the Garda Síochána to the family of the deceased in relation to injuries sustained by him was that given to the partner of the sister of the deceased [263] by the Sergeant in charge of the investigating team [264] on 16th October 2008 at the residence of the mother of the deceased. I am also satisfied that this information was correct, that the injuries were entirely caused post mortem and were inflicted solely by crabs and other aquatic creatures.
76
SECTION 4
WHETHER OR NOT THE INFORMATION PROVIDED BY THE GARDA SÍOCHÁNA TO THE FAMILY OF MR. JOHN KELLY CONCERNING THE CONDITION, WHEREABOUTS AND ANY FORENSIC EXAMINATION OF HIS CLOTHES WAS CORRECT
1. On the 13th November 2008, a sister of the deceased telephoned the Sergeant in charge of the investigating team [265]. The purpose of her telephone call was to ascertain what had become of the clothes which the deceased had been wearing. In her statement to the inquiry, and in the evidence given to the inquiry by the Sergeant in charge of the investigating team, they are both agreed that he stated that he had no idea where the clothes were, that the deceased had been taken to the morgue wearing them. As set out in Section 2 of this report, what was stated by the Sergeant in charge of the investigation on that occasion was corroborated by the evidence of the senior pathology technician at the City Mortuary [266]. What the sergeant told the sister of the deceased about the whereabouts of the clothes and his lack of knowledge as to what became of them is totally correct.
2. In her statement to the inquiry, the sister of the deceased [267] avers that she, her mother [268] and another sister [269] went to the undertakers [270] on 13th November 2008 in the afternoon and asked if they had the deceased's clothes. A staff member [271]
77 checked to see if they had the clothes and stated that they did not have them. He then telephoned the City Mortuary in the presence of the sister of the deceased [272]. She states that this staff member at the undertakers told her that whoever he had been speaking to at the City Mortuary said that a member of the Garda Síochána from Pearse Street Garda Station [273] had signed for them. On 11th December 2008 this sister of the deceased telephoned the Superintendent in charge at Pearse Street Garda Station, explained that the family were concerned about the whereabouts of the deceased's clothes and informed him of what she had been told by the staff member of the funeral home. The Superintendent undertook to enquire into the matter. Later that afternoon he telephoned her and reported that he had spoken with the garda in question and had received an assurance that the garda had not signed for the deceased's clothes. I am satisfied that this information was correct. As set out in Section 2 of this report, any garda taking custody of any item of clothing, or of any possession of a deceased person at the City Mortuary, would have to sign a designated form which would then have been archived at the City Mortuary, and details of proceedings would have been entered into the computerised database at the City Mortuary [274]. Also, as set out in Section 2 of this report, the mortuary senior pathology technician gave evidence that the clothes had been dispatched by him for incineration without advising the City Coroner, the pathologist or the Garda Síochána. In her statement to the inquiry, the sister of the deceased [275]
78 records that on 11th December 2008 she telephoned the Dublin City Mortuary and spoke to the senior pathology technician [276]. She states that he informed her that the deceased's clothes had been destroyed for health and safety reasons. The Sergeant in charge of the investigating team [277] gave evidence that he had spoken to the mortuary senior pathology technician [278] on 22nd March 2009 who had informed him that he had not told anyone that a member of the Garda Síochána [279] had signed for the deceased's clothes. He had told the sister of the deceased that the clothes had been destroyed for health and safety reasons as a biohazard.
3. I am satisfied that the Garda Síochána did not inform any member of the family of the deceased that a forensic examination of his clothes had been carried out or was even contemplated. As set out in Section 2 of this report, none of the trained observers who had come into very close contact with the body of the deceased, the members of the Garda Síochána Sub-Aqua Unit, the investigating team, especially the Sergeant in charge who searched the clothing and examined the body at Britain Quay, the registered general practitioner who certified death at Britain Quay, and the city mortuary senior pathology technician observed any suspicious damage to the clothing of the deceased. I am also satisfied that the Garda Síochána did not give any information to any member of the family of the deceased regarding the condition of the deceased's clothes or any of them. As is clearly set out in the statement of the sister of the deceased [280] and in
79 the handwritten notes made by the garda note-taker [281] at the meeting between the members of the family of the deceased and the members of the Garda Síochána at Pearse Street Garda Station on 12th December 2008, this information was at all times clearly stated to have come solely from the mortuary senior pathology technician [282].
SECTION 5
THE APPROPRIATENESS OR OTHERWISE OF THE GARDA SÍOCHÁNA APPOINTMENT TO THE GARDA SÍOCHÁNA OMBUDSMAN COMMISSION SUPERVISED INQUIRY
1. The Superintendent in charge of the Pearse Street Garda Station District of the Dublin Metropolitan Region (South Central) which included Britain Quay had the duty of investigating the circumstances of the death of the deceased [283]. This was in accordance with the provisions of the Garda Síochána Code [284]. By a letter dated 21st November 2008, the Private Secretary to the Garda Commissioner [285] informed the private investigator retained by the family of the deceased [286] that the incident was being investigated by the superintendent at the time at the District Office in Pearse Street [287].
2. An exchange of non-verbal communications took place between this private investigator and a Minister of State [288], the Commissioner of the Garda Síochána [289] and between the Minister and the Commissioner in the period 18th November 2008 to 19th February 2009
80 concerning complaints from the private investigator made on behalf of the family of the deceased that the investigation into his death was not receiving the attention it warranted, that inadequate garda resources were deployed and the family were receiving little or no information about the progress of the investigation from the Garda Síochána.
By an Order dated the 26th February 2009, the Garda Síochána Assistant Commissioner, Dublin Metropolitan Region North [290] appointed a Detective Superintendent at Ballymun Garda Station [291] "to investigate all aspects surrounding this death. In doing this, ensure that the fullest information is gathered and collated to inform the Coroner of all the facts and issues arising from the death." A communication dated 27th February 2009 from the Commissioner of the Garda Síochána to the Minister of State advised him of this appointment. In the events which occurred at that time, this particular detective superintendent was on extended leave which continued until 30th June 2009 and was entirely unaware of this Order until he returned to duty from that leave [292].
3. The Superintendent in charge at Pearse Street Garda Station and the Sergeant in charge of the investigating team [293] were not informed of the making of this Order and continued the investigation into the death of the deceased. On the 19th March 2009 the Sergeant furnished a detailed report on the investigation to the Superintendent. The Detective Superintendent gave evidence to this inquiry that when
81 he returned from leave he saw this Order for the first time and was astounded. He stated that in all his years of service in the Garda Síochána he had never seen such a thing. He did not know whether he was being instructed to carry out a disciplinary inquiry or an investigation for the inquest or a full criminal investigation. He stated that if it was anything other than a disciplinary inquiry, it would have caused him enormous problems in relation to the proper management of his own four districts with a population of approximately 330,000 people and with other matters. On the 30th June 2009 he contacted Garda Síochána Human Resources Management by telephone. He was advised that a sister of the deceased had made a complaint to the Garda Síochána Ombudsman Commission [294] about the conduct of the investigation into the death of the deceased, and he should wait as this was in train [295].
4. The Garda Síochána Ombudsman Commission (GSOC) in exercise of its powers under the Garda Síochána Act 2005 had requested the Garda Síochána to carry out an inquiry under the supervision of GSOC into alleged breaches of discipline on the part of the members of the Garda Síochána carrying out the investigation into the circumstances surrounding the death of the deceased and other members of the Garda Síochána who had been involved in the events of the 15th and 16th October 2008. On the 25th March 2009 the Garda Síochána Assistant Commissioner in charge of Human Resources Management [296] requested the Assistant Commissioner, Dublin Metropolitan Region North to
82 appoint an Investigating Officer for the purpose of this GSOC supervised inquiry. GSOC had deemed the complaint of the sister of the deceased [297] admissible. In her request the Assistant Commissioner Human Resources Management stated:- "It was my intention in this instance to recommend that the resources of the Investigation Unit, Harcourt Square be utilised, however, I am aware that you have directed Detective Superintendent [305] to investigate other aspects of this case and shall leave the decision regarding the appointment to your discretion."
5. By Order dated 7th April 2009, the Assistant Commissioner, Dublin Metropolitan Region North [298] appointed the Chief Superintendent at Ballymun Garda Station [299] "to investigate the alleged breaches of discipline set out in the attached forms 1al11 to interview the members concerned and submit a report to the Ombudsman Commission." Four of these forms were signed by the Assistant Commissioner, Dublin Metropolitan Region North on 7th April 2009. The Order also required the recipient to immediately notify the Assistant Commissioner, Dublin Metropolitan Region North if he had been involved in any capacity in relation to an earlier aspect of the case [300]. This latter aspect of the Order demonstrates that the Assistant Commissioner, Dublin Metropolitan Region North was commendably alert to the importance of ensuring that every aspect if the inquiry was, and was manifestly seen to be, free from any taint of partiality or bias, a matter of particular importance
83 in the case of this form of inquiry. In a report dated 9th April 2009 the Chief Superintendent confirmed to the Assistant Commissioner that he had not been involved in any capacity in relation to any earlier aspect of the case [301]. In the same report the Chief Superintendent stated, "Pursuant to Regulation 14(7), I wish to have Detective Superintendent [302], Ballymun to assist me to undertake any of the inquiries in Regulation 14(6)." The Detective Superintendent gave evidence that the Chief Superintendent notified him in writing that he had been appointed to assist the Chief Superintendent in the inquiry.
6. I am satisfied on the evidence that the Detective Superintendent [303] had never served with the Superintendent in charge at Pearse Street Garda Station [304], with the Sergeant in charge of the investigating team [305] or with any other of the members of the Garda Síochána included in the complaint to GSOC by the sister of the deceased [306] on behalf of all his family. I accept his evidence that he was acquainted with the Superintendent in charge of the Pearse Street Garda Station District and no more [307]. Throughout his long career in the Garda Síochána, the Detective Superintendent had always served in the Dublin Metropolitan Regions North and West other than for a brief period in Donegal. He had never served south of the River Liffey. In these circumstances, and as a very experienced detective, his appointment to carry out the actual work of the GSOC supervised inquiry could not be faulted.
84
7. However, it cannot be overlooked that the Order of 26th February 2009 was made, recorded and published. The Minister of State had been informed of it. The private investigator acting on behalf of the family of the deceased had in the correspondence previously referred to been informed of and had hailed the appointment. This Order of 26th February 2009 had never been rescinded. Therefore, there is no escaping from the fact that for 42 days, that is from 26th February 2009 to 9th April 2009, the Detective Superintendent was the member of the Garda Síochána on the record as officially in charge of investigating the death of the deceased. The circumstance that he never in fact acted in any way in that capacity, and indeed was entirely unaware of the making of the Order of 26th February 2009 until his return from leave on 30th June 2009, is not an answer to the pertinent question of whether or not he should in the first instance have ever been appointed to the task.
8. I am satisfied that the appointment of the Detective Superintendent [308] to assist the Investigating Officer in carrying out the GSCO supervised inquiry offended against the fundamental principle of natural justice that a person should not be a judge in a matter in which he or she had a real and not insignificant interest. In effect, the Detective Superintendent [309] had been appointed on 9th April 2009 to investigate the conduct of an investigation of which he had been in charge for 42 days. In addition, had his conduct of the GSOC
85 supervised inquiry progressed beyond two formal interviews with the sister of the deceased who had made the complaint to GSOC [310] and an informal interview with the Sergeant in charge of the investigating team [311], there had to be a very real danger that the entire proceeding might be challenged on grounds of perceived bias. For these reasons I am satisfied that the appointment made by the Garda Síochána to the GSOC supervised garda inquiry was inappropriate.
SECTION 6
THE APPROPRIATENESS OR OTHERWISE OF GARDA SÍOCHÁNA COMMUNICATION WITH MEMBERS OF THE KELLY FAMILY INCLUDING AT MEETINGS WITH THEM
1. I have construed this as referring to the number and the content of these communications and the manner in which they were conducted.
2. From 17th October 2008, the day following the first interaction between the investigating team and the family of the deceased, communications between them were strained with increasing antagonism towards the Garda Síochána on the part of the two sisters of the deceased mostly in contact with the investigating team [312]. This was due to what they perceived to be a failure on the part of the Garda Síochána at Pearse Street Garda Station to properly investigate what the family of the deceased believed had been his unlawful killing.
86
3. The statement of the sister of the deceased principally in contact with the Garda Síochána at Pearse Street Garda Station [313], who moved with her own family to Australia in October 2009 and whom the Sergeant in charge of the investigating team states was the agreed spokesperson for the family of the deceased, sets out the dates and details of communications with the Superintendent in charge at Pearse Street Garda Station [314] and some members of the investigating team [315]. The source of these dates and details is not stated. From 16th October 2008 to 10th February 2010 the Sergeant in charge of the investigating team kept a record of all communications he had with the family of the deceased. This record produced and proved by him at this inquiry consists of contemporaneous entries in his garda notebook and individual notes and memoranda. They record the date of the communication, how it was effected, by whom it was originated and a note in an abbreviated form of what was said [316].
4. No criticism is made by the family of the deceased of the attitude or manner of the Superintendent in charge at Pearse Street Garda Station [317] or of any member of the investigating team in the course of any telephone communication with them. Such telephone communications account for almost all of the communications between the family of the deceased and the Garda Síochána. The family of the deceased make no criticism of the time taken to return their calls to the Garda Síochána. I find that all such telephone
87 calls from the family of the deceased to the Garda Síochána were returned with very commendable promptness. The family of the deceased are very critical of the attitude and manner of the Garda Síochána at the meeting on 12th December 2008 between them and members of the family of the deceased held at Pearse Street Garda Station. The family of the deceased are also critical of what they allege was a failure of the Superintendent in charge at Pearse Street Garda Station [318] and the investigating team to initiate communication with them and keep them informed of what they were doing. They are further very critical of the manner in which a sister of the deceased [319] alleges she was treated by the Detective Superintendent [320] during the course of two interviews which she had with him at Ballymun Garda Station on 20th April 2009 and 11th May 2009 respectively.
5. Careful to avoid all areas of conflict as to what was said in the course of any telephone communication between the family of the deceased and the Garda Síochána at Pearse Street Garda station, I find that the communications recorded in the statement of the deceased's sister [321] and in the notebook entries and individual notes and memoranda made by the Sergeant in charge of the investigating team [322] between 17th October 2008 and 3rd May 2009, the latter being the date of the formal complaint by the family of the deceased to the Garda Síochána Ombudsman Commission, present the following picture.
88
6. On 17th October 2008 the deceased's sister [323] telephoned a member of the investigating team [324]. She told him that they had learned [325] that the deceased had taken the train from Athy to Heuston Station on 15th October 2008, that on the 16th October 2008 family members had telephoned the deceased's mobile phone number which had twice "rung out" and was then "turned off". She asked him to freeze the CCTV footage at Hueston Station and to retrieve all the deceased's phone records. -On 19th October 2008 this same sister rang the same member of the investigating team. She enquired if he had frozen the CCTV footage at Hueston Station, asked where the deceased's mobile phone had gone, when would the most postmortem take place and when would the body be released. -On 20th October 2008 members of the deceased's family were brought to Britain Quay by the Sergeant in charge of the investigating team [326]. I was unable to ascertain how this meeting had been arranged. They told the Sergeant in charge of the investigating team about the various items or property which they believed the deceased had in his possession on 15th October 2008 and asked what had become of them. They again asked when the postmortem would take place. -On 27th October 2008 the same sister of the deceased rang the Sergeant in charge of the investigating team and asked him for an account of what had happened on the night of 15th October 2008/early morning of 16th October 2008. He told her what he himself had been told. She was extremely outraged that, "all these people stood there and watched my brother die and
89 nobody jumped in." The sergeant explained that he had not been there and was unaware of the conditions and weather at the time. -On 9th November 2008 the sergeant telephoned the same sister, but the call was not answered. -On 10th November 2008 he rang this sister again. He has recorded that they spoke on this occasion for 16 minutes during which he endeavoured to answer a long list of queries which she raised.
7. On 13th November 2008 the same sister of the deceased rang the Sergeant in charge of the investigating team. She asked if he had got the CCTV footage, had he got the deceased's mobile phone records, what had become of the deceased's clothes and had he traced the person who had sent the text message to the next-door neighbour on 16th October 2008 [327]. She then informed him that because they had little or no response from the Garda Síochána, the family had retained a private investigator [328] to investigate on their behalf and asked the sergeant to meet with him which he agreed. -On 17th November 2008 this private investigator rang the sergeant and a meeting was arranged at Pearse Street Garda Station for that evening. The private investigator later complained in a letter to the sergeant, and also in a letter to the Commissioner of the Garda Síochána [329] dated 18th November 2008, that the sergeant had given him no information. The sergeant agreed at this inquiry that he gave the private investigator no information at all about the matter.
90
-On 2nd December 2008 the private investigator rang the Sergeant in charge of the investigating team. He stated that the family of the deceased were concerned because the Garda Síochána were treating the death as a suicide. He asked what had become of the deceased's clothes and who had made the emergency calls on the 15th and 16th October 2008. -On 11th December 2008 the same sister of the deceased rang the Superintendent in charge at Pearse Street Garda Station [330]. She asked where the deceased's clothes were as they had been told that a member of the Garda Síochána at Pearse Street Garda Station had signed for them [331]. The Superintendent said that he would check with the garda in question and ring her back. He rang her back later that day and told her that he had spoken to the garda who denied that he had signed for the deceased's clothes. The Superintendent then arranged a meeting with the family of the deceased for the following day at Pearse Street Garda Station.
8. On 12th December 2008 this meeting took place. -On 15th December 2008 the Sergeant rang the same sister of the deceased seeking a statement from her. There was no reply to this call. -On the 16th December 2008 the same sister rang the Sergeant and said she would make a statement after Christmas. - On 3rd January 2009 the sergeant took a statement from one of the family of the deceased. -On 14th January 2009 the Sergeant in charge of the investigation rang the same sister seeking her
91 statement. She asked for a copy of the minutes of the meeting of 12th December 2008. He said she would have to ask the Superintendent in charge [332] as those minutes had been made for him only. She said that the family had been told that the deceased had been wearing only one runner when the body was recovered. The Sergeant explained this was not so. She said that four people had spoken to the deceased on 15th October 2008 and asked if the Sergeant had obtained statements from them. She said that the family believed that the deceased had been murdered and that the Garda Síochána were doing nothing about it. -On 21st January 2009 the same sister, and another sister of the deceased, rang the Sergeant in charge of the investigation about giving statements [333]. -On 22nd January 2009 the Sergeant in charge of the investigating team rang the other sister of the deceased in connection with the statement [334]. -On the 28th January 2009 an initial complaint was made by the family of the deceased to GSOC about the conduct of the investigation. - On 31st January 2009 the Sergeant in charge of the investigating team took a statement from the other sister of the deceased [335]. - On 11th February 2009 the sister of the deceased [336] rang the Sergeant in charge of the investigating team and complained that he had not contacted an acquaintance of the deceased she had told him about even though this person lived nearby on Pearse Street [337]. He explained that he had been endeavouring to contact her and another acquaintance of the deceased [338]. She accused the sergeant of not doing his job
92 properly. He said that he was investigating the matter but she was entitled to her opinion. She put the phone down.
9. On 18th February 2009 this same sister of the deceased rang the Sergeant in charge of the investigating team. She said that the family believed that the deceased must have been meeting a girl, as otherwise he had no reason to be at Britain Quay. -On 10th March 2009 the sergeant rang the private investigator about the two females that another acquaintance of the deceased [339] had said were waiting for the deceased in the door of the public house in which he and the deceased had been drinking in Athy on 15th October 2008. -On 10th March 2009 the sergeant also rang the sister of the deceased to tell her that one of the residents of the Portview Apartments [340] wished to make contact with her. -On 13th March 2009 the private investigator retained by the family sent the Sergeant in charge of the investigating team a printout of the deceased's outgoing calls for the month of October 2008. The sergeant already had this. -On 19th March 2009 the private investigator rang the sergeant who was not available. -On 19th March 2009 the sergeant rang back. -On 4th April 2009 the Sergeant in charge of the investigating team rang the private investigator. He told him that the Garda Síochána had identified the registered owner of the mobile phone number which the deceased had last rung on his mobile phone on 15th
93
October 2008. The private investigator asked the Sergeant had the status changed from suicide to sudden death. The Sergeant replied 'no comment'. The private investigator complained that two persons [341] had told him that the Sergeant advised them not to speak to him. The sergeant replied that he had not said this but he had told them that they did not have to speak to the private investigator and it was a matter of choice for themselves to talk to him or to decline to talk to him. -On 3rd May 2009 the formal complaint was made by the family of the deceased to GSOC about the conduct of the investigation and other matters.
10. From the foregoing it is apparent that from the start of the investigation on 16th October 2008 to the date of the initial complaint to GSOC on 28th January 2009, and even to the date of the formal complaint on 3rd May 2009, only approximately one third of the telephone communications between the family of the deceased and the Garda Síochána were initiated by the latter. Of this one third initiated by the Garda Síochána, no communication was made for the purpose of proffering information to the family of the deceased about the progress of the investigation. So far as anything to do with the investigation was concerned, the Garda Síochána went no further than answering sparingly questions raised by the family of the deceased. This approach was very clearly aggravating to the traumatised family who complained that they were "having little or no response from the garda" and concluded that no proper investigation was being
94 carried out, and the Garda Síochána were doing nothing because they regarded the death as a suicide. This annoyance and loss of faith in the Garda Síochána resulted in their retaining a private investigator, no doubt at considerable expense to themselves, to advance the investigation, and then serious complaints being made to the Commissioner of the Garda Síochána and ultimately to GSOC. The truly surprising aspect of all of this is that even before any complaint had been made by the private investigator [342] to the Commissioner of the Garda Síochána [343] on 18th November 2008 on behalf of his principals, a very great amount of work had in fact been carried out by the investigating team in investigating the death of the deceased. The Garda Síochána however obviously decided not to inform the family of the deceased or the private investigator retained by them of the work that had already been done and the work that was continuing to be done by them in this regard.
11. By way of a very brief overview the investigating team had done all of the following; carried out a ground search at Britain Quay; sought a cell-site analysis to try to locate the deceased's mobile phone; carried out an in depth CCTV footage search; obtained a printout from the network provider of all incoming and outgoing calls to and from the deceased's mobile phone; from 15th to 18th October 2008; requested that the incident be featured on the Crimecall television programme; carried out a door-to-door search for information in the Portview Apartments complex and at other addresses in the area employing a questionnaire
95 specially prepared for that purpose; obtained statements from persons who had any relevant information or who had contacted the emergency telephone numbers; obtained dental and fingerprint identification of the body; located and obtained statements from the person who had sent the text message to the friend and next-door neighbour of the deceased; obtained a weather report for the Britain Quay area on the night of 15th October 2008 and early morning of 16th October 2008; obtained a tides and water depths report for the same period; identified the registered owner of the mobile phone number which the deceased had called from the mobile phone of the girl on the Athy to Heuston Station train on 15th October 2008; sought and obtained a search of the Britain Quay area and a report by the Night Unit at Pearse Street Garda Station; obtained statements from the crews of Mobile Unit EB1 and Mobile Unit BA54; obtained Garda Síochána Command and Control C.A.D. and I.C.C.S. systems records for 15th and 16th October 2008; requested assistance from the Garda Scenes of Crime Unit and the Garda Air Support Unit to photograph the area east of the loop railway line; sought a report from the latter in relation to their search at Britain Quay on 16th October 2008; located acquaintances of the deceased who they had been informed had information about his death and obtained statements from these persons.
12. I am satisfied that scarcely any information about this detailed and time-consuming investigative work was made known to the family of the deceased at
96 or prior to the meeting at Pearse Street Garda Station on 12th December 2008. Nothing appears in the documents disclosed to this inquiry by the Garda Síochána to even suggest that it was brought to the attention of the Commissioner of the Garda Síochána in answer to the letters of complaint from the private investigator retained by the family of the deceased. Regarding the conduct of the investigation, I am satisfied that this failure to impart any information about the investigation to the family of the deceased, or to the private investigator retained by them to carry out his own investigation, was not simply due to secretiveness on the part of the Garda Síochána. In his evidence the Sergeant in charge of the investigating team [344] explained that he was not going to provide the private investigator retained by the family of the deceased [345] with any information that might compromise the investigation he was carrying out or might compromise a potential witness in the investigation. He was concerned that if persons he might wish to interview had already been interviewed, words might have been put into their mouths or ideas suggested to them, or they might make themselves harder and harder to find. Given the role of the Garda Síochána as the primary investigators of deaths, like that of the deceased, and the probably close scrutiny to which any investigation by them would be subjected, whether in a judicial or a quasi-judicial tribunal, I find that the refusal of the Sergeant to give information to the private investigator was based on good and sufficient reasons and was justified in the circumstances.
97
13. I am satisfied on the evidence that there were a number of genuine reasons why the Superintendent in charge at Pearse Street Garda Station and the investigating team were less than forthcoming in advising the family of the deceased about the progress of investigation. They were concerned about the danger of witness contamination, about disclosing confidential information, about revealing Garda Síochána operating methods and sources of information, and about usurping the functions of the pathologist or of the City Coroner.
14. I am satisfied that in these circumstances it was proper and reasonable for the Garda Síochána to believe that they were maintaining adequate communication with the family of the deceased by promptly returning all telephone calls from them. I am also satisfied that the amount of information imparted during these return telephone calls was very limited and therefore insufficient to convince the family of the deceased that a genuine and painstaking investigation was in fact taking place. Whether the Garda Síochána in circumstances like the instant case should be proactive and initiate communications with the traumatised family during an investigation and what amount of information might safely be disclosed without compromising the investigation by disclosing information which should not be disclosed or usurping the functions or jurisdiction of others must always be a policy decision for the Garda Síochána requiring a careful consideration and balancing of the various
98 advantages and disadvantages involved. I am satisfied that this was done in the instant case.
15. I am satisfied that the meeting between the members of the family of the deceased and members of the Garda Síochána [346] at Pearse Street Garda Station on 12th December 2008 was arranged by the Superintendent in charge at that garda station [347] to be of assistance to the family of the deceased. I find that from the outset the Garda Síochána [348] unfortunately preempted any hope of a reasoned and productive discussion by starting the meeting, following expressions of sympathy, by asserting that there was nothing suspicious about the tragic death of the deceased and his death involved no foul play. I am satisfied that at the time they could not have been unaware that the family of the deceased held an entrenched belief that he had been attacked at Britain Quay and had drowned as a result, and were convinced that this was not being investigated properly by the Garda Síochána. The Garda Síochána present at this meeting were unprepared for the vigorous and perfectly legitimate questioning of these assertions by members of the family of the deceased. I cannot but wonder why the Garda Síochána present thought that showing the CCTV footage of the deceased travelling on his own from an arrivals platform at Heuston Station to a location at Sir John Rogerson's Quay would convince his family that he had not been the victim of a crime at Britain Quay.
99
16. In her later transcript of handwritten notes made at the meeting on the 12th December 2008, the garda note-taker [349] records that a sister of the deceased [350] stated that the mortuary senior pathology technician had told her that the deceased's clothes were destroyed because they had been in the water and were soiled with blood mostly from his face, that his face was bruised. His knuckles on both hands were bruised and there was dried blood in his ears. She then asked the Garda Síochána present why there was blood on him. In her statement to this inquiry, without indicating whether this was based on recall, on a contemporaneous note or on a note made subsequently, the sister of the deceased states that she told the Garda Síochána at the meeting that the family had been advised to have a closed coffin but her mother had asked at the funeral home to see the body and noticed that there was bruising on the left side of his face, dried blood in his ears and his knuckles on both hands were badly bruised. She goes on to state that, "We were told quite bluntly by [the] Superintendent that they could not comment on this and we would have to wait for the inquest on this." In the garda note-taker's transcript the Superintendent is recorded as replying that the pathologist must answer these questions as they are the trained professionals. Whichever version one accepts, the reply given by the Superintendent was correct, though it would have been more complete had he, or the Sergeant in charge of the investigation [351], added that the Garda Síochána had observed no blood on his clothes or in his ears and had seen no bruising to the
100 left side of his face or on his knuckles. I am satisfied that the Superintendent was not being evasive in what he said. I have no doubt, having interviewed him at considerable length about this meeting on 12th December 2008, that he was direct in what he said but was not harsh or dismissive.
17. The statement made to this inquiry by the sister of the deceased [352] and the typescript made by the garda note-taker while differing somewhat in detail demonstrate that this sister closely questioned the Sergeant in charge of the investigation [353] about the phone calls that came in on the night of her brother's death and the response of the Garda Síochána to them. In her statement this sister of the deceased states that another sister [354] then asked the Sergeant why it was that the five garda who were at the scene did not try to rescue the deceased when he couldn't catch the rope thrown to him. She states that at this point [the] Superintendent terminated the meeting at 3.20pm and asked them to leave and told them that they would just have to wait for the inquest. In her contemporaneous handwritten note, the garda note-taker at the meeting [355] has written, "Sergeant-rope thrown in. Five gardaí at scene. Question-why did gardaí not jump in? Meeting terminated." In her typescript note which contains an account of a somewhat more forceful intervention by this other sister of the deceased [356], the garda note-taker records, "At this point the Superintendent informs the family that he is now terminating the meeting as allegations were being made by the sister
101 against the State." In his evidence to this inquiry the Superintendent [357] agreed that he had terminated the meeting. He stated that he considered that a very serious allegation of negligence was being made against the five members of the Garda Síochána as agents of the State and he was not prepared to enter into a debate or argument about that. I am satisfied that this was a reasonable conclusion for the Superintendent to have reached, and having reached it that he had then no option but to bring the meeting to an end. It was then 3.20pm and the meeting had commenced at 2.45pm [358]. I find that this well-intentioned meeting turned into something of a public relations disaster for the Garda Síochána, but I am satisfied that there was no misbehaviour or no unbecoming conduct towards any member of the deceased's family on the part of any of the members of the Garda Síochána present at the meeting.
18. The sister of the deceased who had made the complaints to GSOC [359] had her first interview with the Detective Superintendent [360] on the 20th April 2009. A Detective Inspector, also from Ballymun Garda Station [361], was also present throughout as a non-participating observer. As there was insufficient time for her to complete her oral statement at that interview a resumed date was agreed for the 11th May 2009. On 30th April 2009 the GSOC senior investigating officer who was supervising the inquiry under the provisions of Section 94 of the Garda Síochána Act 2005 met with this sister at her home [362]. She informed him that the Garda Síochána were
102 taking her statement and she had concerns about what was going into it. At a meeting on the 5th May 2009 between the GSOC Senior Investigating Officer and the Detective Superintendent, it was agreed that a representative of GSOC would sit in with the sister of the deceased when she completed her statement on the 11th May 2009.
19. On the 11th May 2009 the sister of the deceased arrived at Ballymun Garda Station accompanied by the private investigator retained by the family [363]. She stated that she wished him to be present at the resumed interview. She complains to this inquiry that the Detective Superintendent refused permission for him to be present. This was accepted during his evidence by the Detective Superintendent, who is now retired from the Garda Síochána. He stated that his reason for this decision was that the private investigator was not a member of the legal profession representing the sister of the deceased, nor was he a member of her family whom the sister of the deceased wished to have present in a supportive role. Further, a GSOC designated officer was already present at Ballymun Garda Station for the sole purpose of ensuring that the sister of the deceased was treated fairly during the resumed interview. I am satisfied that this decision of the Detective Superintendent was rational, reasonable and correct.
20. The sister of the deceased did not in fact continue with her oral statement at this resumed interview but produced a short pre-prepared statement.
103
It is common case that this statement was read aloud by the Detective Superintendent. She now complains to this inquiry that he then, "fired a lot questions at me." This was denied by the Detective Superintendent (now retired) in his evidence to this inquiry. He stated that what this sister of the deceased had produced was a short document which made vague complaints about 13 members of the Garda Síochána. He accepted that he did press the sister of the deceased to be specific as to the nature of the complaints she was making against each individual garda and enquired into the substance of these complaints [364]. He denied that he had "fired questions" at the sister of the deceased or that he behaved in a hectoring or bullying manner towards her. In his evidence the GSOC designated officer stated that he was present at the interview to ensure that the sister of the deceased got fair play and if the questioning was in anyway irregular he would have intervened and stopped it. He also recalled that the sister of the deceased made no complaint to him about this questioning at the time or after the interview ended.
21. The (then) Detective Inspector [365] told this inquiry that the Detective Superintendent did not fire questions at the sister of the deceased but clarified issues as he read her pre-prepared statement. I am satisfied that being questioned in a formal manner in a formal setting is always an upsetting and unpleasant experience for any adult. Perhaps this sister of the deceased did feel that questions were being "fired at her". This could have been a genuine subjective
104 feeling, but I am satisfied on the evidence that objectively there was no nothing intimidating or oppressive in the Detective Superintendent's questions or in the manner in which they were asked. The Detective Superintendent and the GSOC designated officer both gave evidence that this interview ended when the sister of the deceased stated that she needed to prepare herself better and would contact the Detective Superintendent to agree a date for a resumption of the interview. This was also stated in the Detective Superintendent's written report to the appointed Investigating Officer [366] dated 30th June 2009. The sister of the deceased telephoned the Detective Superintendent on the 14th June 2009 and informed him that she was taking legal advice. She telephoned him again on the 18th May 2009 and nominated a resumption date on 27th May 2009 at 3pm. Unfortunately the Detective Superintendent had a previous appointment for that day and time. He returned her telephone call on the 19th May 2009 and gave her a list of dates and times when he would be available. The interview was never resumed. In a letter dated 13th January 2010, the GSOC senior investigating officer [367] advised the Detective Superintendent that the family of the deceased did not wish to proceed with the inquiry and GSOC had decided to accept their decision and deem the inquiry discontinued pursuant to the provisions of Section 93 of the Garda Síochána Act 2005 [368].
22. The sister of the deceased [369] complains to this inquiry that after the Detective Superintendent
105 had "fired questions at her", he then "placed a law book in front of her and said she needed to be careful about whom she was making allegations against". In his evidence to this inquiry, the Detective Superintendent [370] denied very forcibly that this had occurred. He stated that he did not have a law book with him at the interview, and if he had reason to get one, he would have had to leave the conference room where the interview was taking place and go to his own office and open a book press in that office to get it. Neither the Detective Inspector [371] nor the GSOC designated officer [372] recalled his having a law book at the meeting, and the Detective Inspector stated that there were no law books in the conference room at Ballymun Garda Station. Both recalled that the Detective Superintendent had a file with him and nothing more. The GSOC designated officer stated that the Detective Superintendent did not place a law book in front of the sister of the deceased nor did he say that she should be careful about whom she was making allegations against. Had this occurred, he would have immediately intervened. He could not possibly have overlooked such an incident. The (then) Detective Inspector said he would have been appalled had this occurred and would have intervened. As the junior officer, I cannot be sure what form his intervention would have taken, but I am satisfied that the GSOC designated officer would have stopped the interview and would have reported what had occurred to his superior at GSOC [373].
106
23. Both the GSOC designated officer and the (then) Detective Inspector had a recollection that the Detective Superintendent had with him at the interview a form of loose leaf copy of parts of the Garda Síochána Act 2005. The (then) Detective Inspector stated that it was like the photocopied extracts from the Statute held together with a single staple at the upper left-hand corner which I had in front of me at the interview with him. The GSOC designated officer stated in evidence that every person who makes a statement in a GSOC inquiry carried out by the Commission itself is told about the provisions of Section 21 of the Criminal Justice Act 1984 and Section 110 of the Garda Síochána Act 2005, and the penalties for making a false or misleading statement. In his evidence the Detective Superintendent stated that he had carried out several GSOC supervised inquiries without any complaint made against him. While the Detective Superintendent, the (then) Detective Inspector and the GSOC designated officer could not recall if the Detective Superintendent had given such a warning to the sister of the deceased, I find that there is a high probability that he did, and in so doing drew her attention to Section 110 of the Garda Síochána Act 2005 in the loose leaf photocopy format which I am satisfied he had with him at the interview. The forms on which the Garda Síochána take statements [374] have printed at the top a standard recital that the statement is true and is made knowing that the maker may be prosecuted if it is false or misleading. However, at the interview on the 11th May 2009, the sister of the deceased was not continuing
107 her oral statement as at the previous [375] interview which was being noted down by the Detective Superintendent, but was proffering instead a short pre-prepared statement. I find there is a high probability that after he had read this short pre-prepared statement aloud at the interview, the Detective Superintendent gave a warning to the sister of the deceased about the consequences of making a false or misleading statement. This would have been entirely proper in the circumstances and something which a highly experienced detective would think of doing. I do not, however, accept that the Detective Superintendent said that she needed to be careful about whom she was making allegations against.
108
SECTION 7
THE CONTENT AND SIGNIFICANCE OF ANY TESTIMONIES GIVEN BY WITNESSES TO THE DEATH, INCLUDING CIVILIANS WHO TELEPHONED EMERGENCY SERVICES
1. No civilian witness to the death of the deceased has to date come forward or been identified by the Garda Síochána. Some of the civilians who telephoned the emergency services, or Pearse Street Garda Station, or Irishtown Garda Station between 12.28am and 12.50am on the 16th October 2008 saw and reported that he was in the water near a large dredging barge moored in front of Britain Quay and was calling for help [376]. They did not witness his death [377]. The only known witnesses to his death were the four female members of the Garda Síochána [378] and a male student garda [379], the crews of Mobile Units EB1 and BA54 respectively. The first of these came to a position at Britain Quay where she could see the deceased in the water and tried to rescue him at 12.56am. She was closely followed by the others. They endeavoured to communicate with him but he did not respond. One member of the Garda Síochána present [380] found a length of discarded heavy duty plastic cable covering and threw it to him at least twice. It landed next to him but he made no attempt to catch it.
2. Dublin Fire Brigade River Rescue Unit was alerted by the Garda Síochána at 12.56.37am on 16th October
109
2008, mobilised at 12.57am and were on site at 12.58.30am [381]. The deceased's head disappeared under the surface of the water at 12.58am [382]. None of these members of the Garda Síochána had any information at all as to how the deceased came to be in the water. To date this is an open question and has not been ascertained. The investigating team ascertained on 7th November 2008 [383] that the first persons to have seen the deceased in the water and shouted to him were the resident in Apartment 1, Portview Apartments and his friend [384]. This resident stated that he did not check his phone or his watch but that it was approximately midnight or approximately 30 minutes before he saw the Garda Síochána with torches at the ramp on the right side of the apartments. The crew of EB1 were at this location between 12.43am and 12.46am on the 16th October 2008. The resident in Apartment Number 1, Portview Apartments did not telephone the Garda Síochána because he asked other residents who had come out on their own balconies if they had telephoned the Garda Síochána and the answer was affirmative. The first call to the Garda Síochána was at 12.58am [385]. I am satisfied that the deceased was first seen in the water at approximately 12.15am with a small margin of error. However, the first report to the Garda Síochána that he was actually in the water came at 12.37am [386]. Why these four members of the Garda Síochána and the student garda were only present in the correct location at Britain Quay at 12.56am on the 16th October 2008 and not before, and why the Dublin Fire Brigade River Rescue Unit was not alerted by the
110
Garda Síochána until 12.56.37am on 16th October 2008 is considered in Section 1 of this report.
SECTION 8
THE RESPONSE OF THE GARDA SÍOCHÁNA TO THE EMERGENCY TELEPHONE CALLS MADE SHORTLY BEFORE THE DEATH OF MR. JOHN KELLY
1. It is important to emphasise that those emergency calls were not made "shortly" before the death of the deceased. They were made between 2.28am and 12.50am on the 16th December 2008 and the three telephone calls reporting that the deceased was in the water were made at 12.37am, 12.46am and 12.50am on the 16th October 2008. The deceased disappeared under the surface of the water at 12.58am on 16th October 2008. I find that the response of the Garda Síochána to these emergency telephone calls on the 16th October 2008 was confused, inappropriate and inadequate. This is addressed in Section 1 of this report.
111
CONCLUSIONS
SECTION 1
The response made on the night of the death of Mr. John Kelly by the Garda Síochána was confused, inappropriate and inadequate.
SECTION 2
The conduct and adequacy of the investigation conducted thereafter by the Garda Síochána was thorough and sufficient.
SECTION 3
The only information provided by the Garda Síochána to the family of Mr. John Kelly in relation to injuries sustained by him, that all such injuries occurred post mortem and were caused by aquatic creatures, was correct.
SECTION 4
The information provided by the Garda Síochána to the family of Mr. John Kelly in relation to the whereabouts of his clothes was correct. No member of the Garda Síochána gave any information to the family about the condition of his clothes or about a forensic
112 examination of his clothes. No forensic examination was made.
SECTION 5
The appointment by the Garda Síochána of a then serving Detective Superintendent to assist the Chief Superintendent appointed as investigating officer to carry out the Garda Síochána Ombudsman Commission supervised inquiry was inappropriate as he had been involved in the prior investigation by the Garda Síochána.
SECTION 6
The Garda Síochána communications with the members of the family of Mr. John Kelly were strained from the outset due to the expectations of the family and Garda Síochána reticence for good and justifiable reasons, and became more difficult with the passage of time. Communications at one of the four face-to-face meetings, that held on 12th December 2008 became very fraught, but not due to malfeasance on the part of any of the members of the Garda Síochána present.
SECTION 7
No civilian witness to the death of Mr. John has to date come forward or been identified by the Garda
113
Síochána. Some of the civilians who telephoned the emergency services saw him in the water but did not witness his death. The only known witnesses to his death were four female members of the Garda Síochána and one male student garda. They tried but were unsuccessful in communicating with him. They tried unsuccessfully to rescue him with an improvised rope. They did not know how he came to be in the water. Why only these five members of the Garda Síochána were present, and only at the time, is already addressed in Section 1 of the report.
SECTION 8
The emergency telephone calls made before the death of Mr. John Kelly were not made "shortly" before his death, but were made a significant time before that death. The response of the Garda Síochána to these emergency telephone calls was confused, inappropriate and inadequate. This has been addressed in Section 1 of the report.
114