A MAN charged with murder walked free from the Central Criminal Court yesterday after the judge directed a permanent stay on his prosecution. Mr Frederick Flannery (35), of no fixed abode, had denied the murder of Mr Denis Patrick O'Driscoll (33), at Wellington Terrace, off Grattan's Hill, Lower Glanmire Road, Cork, between December 15th and 31st, 1994.
The trial opened on June 17th and ended in dramatic circumstances yesterday. In a judgment on an application for acquittal, Mr Justice Barr said Mr Flannery's right to a fair trial had been irreparably damaged because of the "mendacious" conduct of investigating gardai in not disclosing until a very late stage important case documents.
He said the conduct of gardai involved, under a senior officer, was "as saddening as it is reprehensible". The trial was "so tainted by the appalling misbehaviour of Supt Patrick J. Brennan and his investigating team that it cannot be satisfactorily retrieved".
The judge said he did not accept Supt Brennan's explanation of the delay in disclosing documents and concluded there was "a conscious and deliberate policy, probably orchestrated by Supt Brennan and at least one of his investigating officers, to subvert the course of justice in the trial".
He said Supt Brennan and his team "consistently and deliberately resorted to a policy the objective of which was to deprive the accused of his constitutional right to a fair trial in accordance with the law".
He discharged the jury and Mr Flannery, who immediately left the dock and sat in the body of the court.
The trial opened on June 17th but was adjourned last Friday until Tuesday when counsel complained gardai had only last Thursday made documents available. Some of these were of "capital" importance, said Mr Patrick MacEntee SC, defending.
He claimed gardai had suppressed the documents "so as to lend a phoney credibility to the evidence of the witness in the box at the time". That witness was Mr Michael Flannery Jnr, the accused man's nephew, who was described at the opening of the trial as the key prosecution witness.
The documents included a report of an interview with a man who said Mr Flannery Jnr had told him and other youths that he was on "acid (LSD) or some such drug" when he made certain allegations about the defendant.
The judge described the delayed disclosure as "outrageous" and agreed to the adjournment. However, when the trial resumed on Tuesday, Mr MacEntee said more documents had been presented to his solicitor by gardai just the previous day.
An investigation into the delayed disclosure was then held in the absence of the jury, after which the defence asked the judge to withdraw the jury from the case and direct them to return a not guilty verdict. Ruling on the application yesterday, Mr Justice Barr said the circumstances in which it was made were "bizarre and unique in my experience and that of counsel".
He said the background to the situation was that Mr Denis Patrick O'Driscoll was reported missing in January 1995. He had lived at a flat at Wellington Terrace in Cork; Mr Frederick Flannery lived in the flat above. During the Garda investigation and subsequently in evidence, Mr Michael Flannery Jnr, then aged about 15 or 16, told police that his uncle, Frederick, had admitted to having murdered Mr O'Driscoll, the judge said.
Mr Flannery Jnr said in evidence that in December 1994, or near that time, he was in Mr O'Driscoll's flat with the defendant and another man, the judge continued. Mr Flannery Jnr had said the two men went up to the defendant's flat with a saw and knife, that later he was asked to help carry a coal sack and two other bags from the flat to a car and that he was shown a human head and foot in a cupboard.
The judge said Mr Flannery Jnr conceded he had taken drink and drugs at that time.
The judge said the State had conceded the essence of the prosecution case depended on whether the jury accepted Mr Flannery Jnr's account.
The judge said the "first misconduct" of the investigating gardai came to light after Mr Frederick Flannery was returned for trial on the basis of the Book of Evidence served in September, 1995.
Mr Buttimer, the defence solicit or, wrote to the Chief State Solicitor on December 12th, 1995, seeking copies of all relevant documents, the judge said. The letter was passed to gardai and they gave Mr Buttimer 24 documents from persons who alleged they saw Mr O'Driscoll after December 31st, 1994, when he is alleged to have been murdered.
The judge said those sighting statements were not given to the Director of Public Prosecutions until much later in the trial.
Mr Justice Barr said Mr Flannery Jnr had also told friends about events he alleged happened at Wellington Terrace and gardai took statements from some of these people. As a result of what Mr Flannery Jnr had said in the witness box, Supt Brennan gave statements for the first time from two friends of Mr Flannery Jnr and from two fellow patients at his drugs treatment centre about what he allegedly told them.
These differed significantly from the evidence of Mr Flannery Jnr and from other statements he had made, the judge said.
The statements were important to the DPP in terms of his ability to assess the credibility of information from Mr Flannery Jnr, he said. As a result of the "very disquieting" disclosure of those statements last week, the judge said he had asked, and had been assured last Friday that there were no other relevant documents in the possession of gardai not made available to the DPP. Yet on Monday last, more documents were furnished by the Garda.