An investigation into sexual abuse by a priest had “major flaws” and the prosecution could have faced problems if the accused had not pleaded guilty, the O’Higgins
commission found.
Mr Justice Kevin O’Higgins also found Supt Noel Cunningham’s direction that the case should be dealt with at District Court if there was a plea of guilty was “difficult to comprehend”.
On September 11th, 2007, at Bailieboro Garda station, Co Cavan, a man made a complaint that his son had been sexually abused by a priest, Fr Michael Molloy. Searches were carried out, a computer, mobile phone and other items were seized, and Fr Molloy was arrested three days later. In March 2008, he was charged with child abuse offences.
At Cavan Circuit Court, in July 2009, he pleaded guilty to one count of defilement of a child under 15, one count of defilement under 17, and one count of possession of child pornography. He was sentenced to five years, three years and three years for the offences respectively, to run concurrently.
Mr Justice O’Higgins found the investigation had major flaws, including that the search warrants were defective, there was a failure to have the computer forensically examined and it was lost. Its loss was “surprising”, he said.
A file had gone to the Director of Public Prosecutions in advance of the charges. Supt Noel Cunningham “expressly informed” the DPP that the search warrants used were defective and wrote a covering letter recommending disposal of the case at the District Court in the event of a guilty plea.
“This recommendation is surprising and difficult to comprehend given the gravity of the offences and the strength of the evidence,” Mr Justice O’Higgins said. He said Supt Cunningham explained he was concerned about the victim. He told Mr Justice O’Higgins the trial could collapse and “half a loaf is better than no bread”.
‘Remains surprised’
But Mr Justice O’Higgins said he “remains surprised that such a recommendation was made by a Garda officer with the experience of Supt Cunningham”. The judge also noted the file sent to the DPP made no mention of the computer. He said there was “no evidence to support any allegation that in omitting to refer to the computer in his report, Supt Cunningham was attempting to conceal anything from the DPP or that he was sweeping anything under the carpet”. He said the loss of an exhibit was a matter of concern.
“Where the exhibit in question is a full-sized computer, its loss is all the more surprising,” the judge said. He said it inevitably gave rise to the suspicion it was removed to protect the priest, but it would be “quite unjustified in default of any evidence, to attribute that motive”. There was no evidence to support it and no evidence to support that the computer was stolen by gardaí or others.
Mr Justice O’Higgins also said it was difficult to understand why Sgt McCabe was the only person subjected to disciplinary proceedings for the loss of the computer, given Garda Sinead Killian was the exhibits officer in the case.
He said Sgt McCabe was quite rightly exonerated.
