The High Court has struck out an action for damages brought by the widower of murdered mother of two Sylvia Roche Kelly.
The body of Ms Roche Kelly was found lying face down in the bath of a hotel in December 2007, after she met her murderer while out celebrating her 33rd birthday. She was violently beaten and strangled.
Gerard McGrath Ballywalter, Knockavilla, County Tipperary, was later sentenced at the Central Criminal Court to life imprisonment after admitting murdering Ms Roche Kelly at The Clarion Hotel, Limerick, on December 8, 2007.
McGrath was on bail at that time on a charge of assaulting a female taxi driver in April 2007.
Her widower, Lorcan Roche Kelly from Sixmilebridge sued the State and other parties, including the Garda Commissioner and the Minister for Justice, for damages alleging his wife’s killer was “free to commit the crime of murder when he should have been in custody.”
He claimed the failure and inaction of the defendants, in the context of a bail application, to inform the relevant court of certain other offences with which McGrath had been charged caused or contributed to the fact the killer was at large when he murdered her.
The defendants denied all claims.
On Thursday last, High Court president, Mr Justice Nicholas Kearns, ruling on a pretrial motion brought by the State to dismiss the action, said “this was a very tragic case”.
However, the judge found “on the basis of the existing law in this jurisdiction it was not a case that could be successful,”.
He said the court was compelled, “notwithstanding the many disturbing aspects of this case, which would hopefully result in an appropriate investigation elsewhere,” to dismiss the claim.
The State, in its preliminary application, argued the action should be dismissed, as it disclosed no reasonable cause of action and was “bound to fail”.
It argued Ms Roche Kelly was an unfortunate woman killed by McGrath but there was no special connection he contended between the killer and his victim that gave a particular rise to a duty of care.
It was not foreseeable that McGrath would kill her, it further submitted. Lawyers for Mr Roche Kelly opposed the application and argued the claim should be allowed proceed to a full hearing before the High Court.
The main issue in Mr Roche Kelly’s action was the killer was on bail at the time of the murder when he should not have been.
McGrath was charged with assault on a female taxi driver in County Cavan in April 2007 and was admitted to station bail and later remanded on continuing bail. In October 2007, McGrath was accused of the false imprisonment of a child in County Tipperary and was later given bail at Limerick District Court.
Gardaí objected to bail but did not bring the case of the assault on the taxi driver to the attention of the judge. Virginia District Court was not told on December 3, 2007 that McGrath was charged with the false imprisonment of the girl.
Ms Roche Kelly was murdered five days later.
In 2008, McGrath got nine months in jail after admitting assaulting the taxi driver and 10 years for the Tipperary abduction, to run concurrently with the life sentence.
In his ruling, the Judge said that even with “the benefit of hindsight” it was “difficult to avoid strong feelings of frustration and anger over how matters were handled by An Garda Siochana”.
The failure to advise the judges on all relevant issues of bail in relation to the Cavan and Tipperary incidents was “both negligent and disgraceful”, he said.
“It deprived those judges of the opportunity to properly evaluate the facts in relation to McGrath’s ongoing liberty,”. Had the full facts been known by the respective judges, Mr Justice Kearns said McGrath’s bail would have been revoked and refused.
Even if one assumed this to be one of the “worst cases of Garda negligence imaginable” it could not be said the victim’s death at McGrath’s hands was “reasonably foreseeable from any of the information in this case.”
Ms Roche-Kelly and McGrath were unknown to each other and to says that certain legal requirements that would allow the case proceed merely because of the gender of the deceased was not a sustainable proposition.
The Judge added that it could not be said in this case An Garda Siochana assumed some sort of “special responsibility” towards Ms Roche Kelly, as distinct from the public in general.
He added the case was not being dismissed “on some supposed blanket immunity” but due to long established common law principles. Based on the facts of the case the Judge said a duty of care could not be deemed to have arisen.
The case was adjourned to allow both sides consider the ruling.
By ~Aodhan Ó Faolain