FIOSRÚCHÁN FAOI ALT 42 D'ACHT AN GHARDA SÍOCHÁNA 2005, … Kelly_Inquiry_Report... · 2019. 2....

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FIOSRÚCHÁN FAOI ALT 42 D'ACHT

AN GHARDA SÍOCHÁNA 2005, ARNA LEASÚ

INQUIRY UNDER SECTION 42

OF THE GARDA SÍOCHÁNA ACT 2005, AS AMENDED

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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.


The conduct and adequacy of the Garda

Síochána investigation.


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.


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.


The appropriateness or otherwise of the

Garda Síochána appointment to the Garda

Síochána Ombudsman Commission supervised

inquiry.

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TABLE OF CONTENTS (CONT'D)

PAGE


The appropriateness or otherwise of Garda

Síochána communication with members of the

Kelly family including at meetings with them.


The content and significance of any

testimonies given by witnesses to the

death, including civilians who telephoned

emergency services.


The response of the Garda Síochána to

the emergency telephone calls made shortly

before the death of Mr. John Kelly.

10. CONCLUSIONS 112

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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.

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- 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.

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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

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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

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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

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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

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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

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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

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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

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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

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"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

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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


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].

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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

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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

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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

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go immediately and as rapidly as was safely possible

to the location indicated.

23. A fifth telephone call seeking the assistance of


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

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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.

21

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.

22

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

23

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

24

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

25

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

26

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

27

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

28

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.

29

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.

30

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

31

[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

32

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

33

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

34

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

35

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

36

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

37

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

38

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,

39

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

40

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

41

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

42

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

43

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

44

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

45

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.

46

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

47

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

48

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

49

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

50

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

51

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

52

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

53

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

54

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

55

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

56

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

57

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

58

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


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

59

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

60

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

61

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].

62

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

63

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

64

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

65

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

66

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

67

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

68

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

69

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

70

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,

71

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

72

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

73

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

74

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

75

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


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

76

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.

77

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]

78

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]

79

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

80

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

81

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

82

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

83

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

84

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


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.

85

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

86

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.

87

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

88

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.

89

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

90

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.

91

-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

92

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

93

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

94

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

95

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

96

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

97

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.

98

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

99

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.

100

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

101

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

102

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

103

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.

104

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

105

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

106

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].

107

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

108

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.

109

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

110

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

111

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.

112

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

113

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

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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.

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