A Dream of Death Read online

  Mr Boohig said that after the meeting he was followed outside by Camon: ‘Superintendent Camon said to me he understood I had been to college with the then Minister for Justice John O’Donoghue. [He asked] would I contact the minister and ask him to approach the director to get him to proffer a charge? I told him absolutely no way was I going to do that – it was completely inappropriate.’

  The west Cork State solicitor was so concerned that he brought the conversation to the attention of both Mr Barnes and Mr Sheehan the following day. When he met Mr Barnes some weeks later in Dublin, he said he did not believe there was any discussion of the Bandon meeting and what Camon had said to him.

  Mr Sheehan, the legal officer who had conducted a scathing assessment of the garda file in the du Plantier case, confirmed to the High Court that he had had most of the DPP’s office’s direct contact with gardaí. His evidence would be strictly limited, given a number of legal rulings prior to the High Court case opening in respect of concerns that elements of the assessment he had completed on the garda case file could potentially prove prejudicial.

  He was adamant in evidence that, having carefully studied the large garda case file over a number of years, he believed it did not contain the vital ingredients necessary to warrant a murder charge. ‘Or any charge,’ he pointed out.

  Mr Sheehan said he considered the evidence of Schull shopkeeper Marie Farrell to be ‘absolutely unreliable’ – an assessment he had made years before the drama of the 2003 libel trial and the sensation over Mrs Farrell’s statement in 2005 that she had made false statements under duress from gardaí.

  The legal officer said he came to this conclusion following a detailed study of the various statements made by Mrs Farrell to gardaí. Initially, she had described spotting ‘a man of average height and thin build’ at Kealfadda Bridge in the early hours of 23 December 1996.

  ‘Lo and behold, when gardaí wanted Mr Bailey as a suspect, she changed her statement to a very big man, so big was Mr Bailey. Not only was it unreliable – on reflection, it was perverse,’ Mr Sheehan said. Counsel for the State immediately objected to the choice of language used by Mr Sheehan in the context of the matters being dealt with.

  He acknowledged in evidence that gardaí were ‘very anxious’ to have charges brought against Mr Bailey. Mr Sheehan said that gardaí made it clear that they were very concerned that if Mr Bailey was not charged, there could be another killing. He said the garda ‘certainty’ over this was quite striking.

  Mr Barnes’s evidence was remarkable in that it revealed, for the first time, precisely how concerned some legal officers were about the 2010–2012 extradition process triggered by the French. The former DPP said that, in 2011, he had been on a holiday in Spain reading an Irish newspaper online when he noticed an article about the extradition of Mr Bailey. He realised it was based on information the French investigation team, led by Magistrate Patrick Gachon, had obtained from the gardaí.

  ‘I felt that perhaps not the whole story of the Bailey case was being made known to the French authorities. It was important that it should be,’ he said. Mr Barnes said the decision was made in Ireland not to charge Mr Bailey in connection with the du Plantier investigation because there was, in his opinion, no prima facie case against him.

  On his return from his holiday, he made contact with his successor, James Hamilton. He told the High Court that he ‘explained my anxiety’ about the matter and said he had given the issue ‘a lot of anxious thought while on holidays’.

  At the suggestion of Mr Hamilton, Mr Barnes put his concerns in writing and sent an email to the DPP’s office. This outlined the garda meeting that Mr Boohig had with officers in Bandon in 1997 and the request to contact the Minister for Justice.

  Mr Barnes noted that there was a ‘strong and persistent advocacy’ by gardaí for Mr Bailey to be charged. However, he confirmed that he took exception to the suggestion that contact be made with the minister to support this advocacy. Mr Barnes said this ‘extra step’ was something any DPP would object to.

  Gardaí are no strangers to courtrooms or offering evidence. However, this is usually done in the context of a prosecution, rather than a High Court civil action defending themselves against claims of wrongful arrest. The key garda witnesses for the State defence of the action were retired Detective Garda Jim Fitzgerald, Detective Sergeant Maurice Walsh, retired Garda Kevin Kelleher and retired Detective Garda Jim Slattery.

  Fitzgerald, Walsh, Kelleher and Slattery were specifically named in some of the counts lodged by the plaintiff for consideration by the jury. All had fervently denied any conspiracy against Mr Bailey. Critical evidence was also offered by retired Chief Superintendent Dermot Dwyer, who had supervised key elements of the du Plantier investigation in its early years.

  Chief Superintendent Dwyer’s evidence directly contradicted key testimony made to the High Court hearing, particularly from Mr Bailey. He also flatly rejected suggestions that Mr Boohig had been asked by a garda to contact the Minister for Justice about the du Plantier case – and said that although a meeting with Mr Boohig may have taken place at Bandon Garda Station in March 1998, its purpose was to address concerns gardaí had over correspondence from the DPP’s office. He was adamant that no garda had asked for the minister to be contacted over a potential DPP charge.

  He insisted that gardaí believed they had worked hard since December 1996 to develop a strong case file. In light of this strong belief, gardaí considered some of the subsequent correspondence received from the DPP’s office to be ‘worrying’. However, he denied that any garda had ever attempted to exert undue pressure to bring about a charge. Chief Superintendent Dwyer also stressed that he did not even know that the west Cork solicitor had been at school with the Minister for Justice. He added that, even if had known that fact, he would never have supported any such contact. He insisted that he had never, over the course of his police career, asked a politician to do anything for gardaí in respect of an ongoing case.

  The retired superintendent also rejected suggestions that gardaí had at any stage engaged in ‘coaching’ Marie Farrell before the 2003 libel action, as well as claims that Mrs Farrell was told that if she did not agree to offer evidence at Cork Circuit Court she would be brought there in handcuffs. He denied that the shopkeeper was told to stick to her garda statements when giving evidence.

  Dwyer argued it was ‘very wrong and unfair’ to suggest that the gardaí were determined to have Mr Bailey charged at all costs. ‘Our job is to investigate a murder and everything we do comes up in court, so what you are saying is not right,’ he said.

  He described the killing of Sophie Toscan du Plantier as an ‘outrageous murder’ that had deeply upset the west Cork community. ‘It was shocking to see the woman left the way that she was. It creates panic in an area because people do not want a murderer in their area. So we were concerned – of course we were.’ He insisted that the gardaí, like any good police force, try to follow leads and evidence and deliver a result. ‘We all need results, we are a police service,’ he said.

  In evidence, retired Detective Jim Fitzgerald vehemently denied the claims levelled against him by both Mr Bailey and Mrs Farrell. He denied that there was ever any type of close relationship between Mrs Farrell and himself. He said he was ‘familiar’ with the Schull shopkeeper only through dealings with her in the du Plantier investigation.

  Mr Creed, senior counsel for Mr Bailey, had queried the nature of the contact between the detective and Mrs Farrell in a recorded telephone call from 9 October 1997, which was played to the jury. In one part of the tape recording – after a redacted section – Mrs Farrell commented that the detective was a ‘pervert’. At that point, the detective is heard to reply, ‘I fucking am not – if I am, I am talking to another one.’

  Additionally, Detective Fitzgerald denied ever advising Mrs Farrell to have her statement about Kealfadda Bridge ‘tidied up’ because of the apparent disparity in the description between the man she said she spotted
and Mr Bailey’s actual physical characteristics. He proceeded to deny that he had ever suggested Mrs Farrell lodge a written complaint with Mr Bailey’s solicitor over his alleged threatening behaviour towards her. He also deemed false the suggestion that he had advised Mrs Farrell to use the name of a dead man if ever pressed about whom she had been with on the evening of 22 December 1996.

  He was also vehement in his objection to Mrs Farrell’s claim that he had stripped naked in front of her in a west Cork holiday home. He said this was a ‘completely false allegation’, which, he believed, stemmed from a traffic matter involving her son.

  The detective said Mrs Farrell apparently blamed him for an incident between her son and a Garda Traffic Corps unit. She believed he had asked for her son to be targeted. He claimed that she had called him and threatened that she would think of an allegation to make against him. The detective said he had been so concerned by the disturbing nature of the call from Mrs Farrell that he formally reported it to the garda authorities in May 2010.

  It was then the turn of Detective Sergeant Maurice Walsh to take the stand. He forcefully denied an allegation by Mrs Farrell that he had exposed himself to her in the toilets of Schull Golf Club. She claimed he had told her something along the lines of the fact that stitching up Mr Bailey was a ‘turn on’. The detective said the claim was ‘the height of fantasy’. He added that the allegations levelled against him by Mrs Farrell were ‘revolting’ and ‘deeply upsetting’ both to him and to his family. ‘It is an outrageous lie. It is total and utter lies,’ he insisted.

  The detective said the casual manner in which the shopkeeper had levelled such a damaging allegation was ‘horrible’. When Tom Creed challenged him over why Mrs Farrell would put up such a scenario just to ‘shaft’ him, the detective said he was baffled. ‘I have no understanding of how that woman’s mind works,’ he responded.

  His testimony was supported by later statements from two women – Linda Horgan and Bernie O’Shea – who challenged Mrs Farrell’s claims that one of her tasks at Schull Golf Club was to regularly check on the condition of the toilets. Both also made statements that Mrs Farrell had never, as she had claimed, told them about the exposure incident.

  Detective Sergeant Walsh acknowledged that he had met Mrs Farrell in Dublin for a drink after she had contacted him and told him she was in the capital and knew no one. He was based in Dublin at the time. The detective said they met for a drink at The Hole in the Wall pub – a meeting he said he now viewed as a ‘misjudgement’ on his part. The detective said he returned Mrs Farrell to the city centre hotel she was staying at but did not accompany her inside.

  He strongly denied any suggestion of a conspiracy between gardaí in west Cork over Mr Bailey. Walsh said he had taken a number of statements from Mrs Farrell in both 1997 and 1998. He said those statements were dictated and there was absolutely no indication whatsoever that they were prepared.

  Garda Kevin Kelleher was challenged in cross-examination that he had been put under pressure ‘to get’ Mr Bailey. He said that he had regarded Mr Bailey as a suspect in the probe and could not recall having anyone else under suspicion.

  Garda Kelleher denied Mrs Farrell’s allegation that he had only invited her to come to his home on 28 January 1997 so he could get her to identify Mr Bailey as the man she had spotted at Kealfadda Bridge from a video that had been taken of a Christmas Day swim in Schull in 1996. Mr Bailey had attended the swim that day to read some poetry during the event.

  Garda Kelleher said he had been told to confirm that Mrs Farrell was indeed the anonymous caller called ‘Fíona’ who had rung a helpline with the information about the sighting at Kealfadda Bridge. He said it was possible he had invited her to his house to view the Christmas Day swim video as a pretext for introducing her to detectives involved in the case who wanted to meet her. But there was no hidden motive in relation to Mr Bailey.

  ‘I was doing my job to the best of my ability,’ he insisted. Garda Kelleher noted that Mrs Farrell was ‘very good at adding to incidents’. He also said she had a ‘very good knack of landing gardaí in trouble after 2005’ – a clear reference to how, two years after the Cork libel case, Mrs Farrell had suddenly made a serious of astonishing claims about local gardaí.

  In his evidence, Detective Garda Jim Slattery disagreed with suggestions that inducements were offered to Mrs Farrell for testimony she might offer about Mr Bailey. The detective said he had absolutely no recollection of her ever being told a summons against her husband would be taken care of if she identified Mr Bailey as the person she had seen at Kealfadda Bridge. He also denied that a memo of a meeting with Mrs Farrell on 28 January 1997 was ‘an invention’ that had been compiled by two detectives over a week later. In response to Mrs Farrell’s assertion that she had been asked to sign pages and given the assurance that gardaí would ‘work it out later’, he responded, ‘That never happened. No such discussion took place.’

  He confirmed the memo was written up by Detective Garda Fitzgerald on 7 February 1997 – Mrs Farrell had not wanted notes taken during the 28 January meeting. But, he said, the memo was an accurate note based on the fresh recollections of the two detectives about the meeting.

  Tom Creed, for Mr Bailey, put it to the detective in cross-examination that it was an extraordinary document. The counsel noted that the memo was written in the first person. The detective said it was unusual for an individual to not want to engage in the normal, voluntary question-and-answer format. He disagreed that elements of the statement amounted to ‘garda-speak’, such as one phrase that read, ‘I now know him to be Ian Bailey.’

  Detective Garda Slattery pointed out that the memo was not signed by Mrs Farrell and that no one had ever suggested it was what she had said word for word. But he insisted it was an accurate overall reflection of what she had said to them.

  Further garda evidence came from a member of one of the Garda Síochána review teams that had examined the du Plantier investigation. Detective Inspector Kevin Gately reviewed the file in 2002. The review team came to the conclusion that Mrs Farrell was not a reliable or credible witness. Gately confirmed he had met with Mrs Farrell a total of five times, and it had been put to her by the team that she had changed her story more than once. On one occasion, he said, Mrs Farrell had walked out of a meeting with the review team when she was challenged over making a false report about the identity of the man she was with on the evening of 22 December 1996.

  He also noted that Mrs Farrell had given gardaí conflicting accounts of her movements over the critical period of the evening of the 22nd and the morning of 23 December. Detective Inspector Gately acknowledged that Mrs Farrell’s overall account was weakened by her inability to offer corroboration of what she had seen at Kealfadda Bridge that night and the various different names she had given to the individual she was with that evening.

  A number of ancillary witnesses were then heard before the State made its dramatic move: in a legal application to Mr Justice Hedigan, the defence argued that the case at hearing was in part or in whole statute-barred. In essence, the time limit for Mr Bailey to take such a case had expired. The State also argued that no case was made for various aspects of the plaintiff’s case, including the wrongful arrest element, and it would be perverse to allow these to proceed, irrespective of the statute argument. The State was making a two-fold argument to the High Court – first, that Mr Bailey had exceeded the legal time limit allowed for him to take his action and, second, that he had failed to offer sufficient evidence as to his core argument, namely that he had been wrongly arrested.

  The State now wanted the entire case to be withdrawn from the jury – after almost five months and 60 days of hearing.

  Not surprisingly, there was uproar in the court. The plaintiff’s legal team forcefully objected. Mr Justice Hedigan queried why such an application on statute grounds had not been made earlier. This could have been done at the preliminary hearing stage or even in the opening phase of the trial. It could even ha
ve been lodged at the conclusion of the plaintiff’s case on the thirty-seventh day of the trial.

  Mr Bailey’s legal team, in opposing the application, argued that such an application should have been lodged at an earlier stage. They argued that for such an application to be lodged at that late stage, after enormous cost and effort had been expended by both sides throughout a 60-day hearing process, effectively amounted to abuse of process. The plaintiff’s team argued that the issues at hand involved matters of enormous public interest and should be put to the jury to allow them to determine a verdict.

  However, the State countered that it was open to lodge such a statute-barred application at any stage in the hearing – there was no time constraint involved. Critically, the State also pointed out that the gardaí who were the target of the allegations involved in the case – some of whom had faced allegations even before the case had been heard – were fully entitled to be afforded an opportunity to publicly deny those allegations and present detailed counter-evidence.

  This was a reference to the fact that there had been numerous newspaper reports about the nature of the allegations being made about west Cork gardaí between 2005 and 2014, some of which were very serious and deeply upsetting to the officers involved.

  The State also argued that it had been necessary to await all the evidence because certain elements of the claim lodged by Mr Bailey had not been sufficiently detailed for a full assessment before all the evidence was presented.

  Mr Justice Hedigan, having heard all the State and plaintiff arguments, adjourned the matter to consider the legal position involved. On day 62 of the High Court hearing, he delivered his ruling – and it was a shattering blow to Mr Bailey.

  The judge said it was clear on review that many of the claims lodged by Mr Bailey were, in fact, statute-barred. He noted that the case was triggered in May 2007 – more than a decade since Mr Bailey’s first arrest by gardaí. Mr Justice Hedigan said that, on the application of the six-year rule, the plaintiff’s claim could not involve any issues that occurred before 1 May 2001 – six years before the date he lodged his claim.