O'Neill v Ireland & Ors (Approved)

Notwithstanding this obvious barrier to a key part of his case, the plaintiff proceeded to cross-examine Sergeant Geary on various points of detail relating to the events the subject matter of the prosecution of those offences. The plaintiff, for example, contended that he had not been given a chance to answer the allegation that he was in breach of the protection orders before he was arrested. He sought to contend that Sergeant Geary had given incorrect evidence in respect of various matters of detail including whether a financial institution had been contacted by the Gardaí and whether the principal of his child’s school had made a complaint of harassment. The plaintiff was in dispute with Sergeant Geary as to whether he broke down in tears at the Circuit Court appeal or whether (the plaintiff’s recollection) or whether (Sergeant Geary’s recollection) he lost his cool and began shouting during the Circuit Court appeal. He sought to dispute Sergeant Geary’s recollection that the Circuit Judge had acted “with a level of patience I seldom seen” and maintained rather that the Circuit Judge had shouted at the plaintiff. He raised questions as to the detail of calls received by his ex-wife when working at the switchboard at Glanbia. All of this is to miss the point. The breach of protection order and harassment prosecutions were successful. They were successful both in the District Court and following a full rehearing in the Circuit Court. Accordingly, a case of malicious prosecution simply cannot be made in these matters and no amount of effort to pour over matters of the detail of the evidence of those cases can alter that legal position.

I would observe for completeness that conspicuously absent from the plaintiff’s narrative of how the breach of protection order and harassment cases were dealt with was the evidence of the complainant (his ex-wife) and the witnesses who gave evidence for the prosecution, quite apart from the Garda witnesses. The plaintiff has clearly refused to accept that the very different perspective on his actions offered by the complainant was accepted by the District Court and the Circuit Court following full and fair hearings in which he cross-examined the complainant at length and himself gave evidence.

The same fatal hole in his case applies in respect of the prosecutions for theft in relation to the Killiney Castle Hotel and the Gandon Inn. These criminal proceedings cannot be said to have been terminated in his favour; the District Court and Circuit Court, following a full rehearing on appeal, found the facts proven. Each of those courts exercised their discretion not to proceed to conviction and to apply the Probation Act instead. He was not, however, acquitted of these offences and both the District Court and Circuit Court determined that the facts subtending the criminal charges had occurred. Notwithstanding this, the plaintiff cross-examined Sergeant Geary on the basis that it was somehow inappropriate for Sergeant Geary to contact Fitzpatrick’s hotel in Killiney on receipt of bills through his ex-wife, which had been sent to the former family home in which his ex-wife was living forwarded onto Sergeant Geary by his ex-wife’s solicitor. He sought to split hairs with Sergeant Geary in relation to Sergeant Geary’s knowledge of when the plaintiff ultimately paid the various sums the subject of the theft and fraud charges.

On the basis of Sergeant Geary’s evidence, I am satisfied that there was, objectively, reasonable and probable cause for each of the theft and fraud charges with which the plaintiff was prosecuted.

As regards the Kilrush filling station theft charge, the conviction for which was overturned on appeal, the complainant ultimately accepted in his evidence in the Circuit Court that the plaintiff had an account and the Circuit Court judge found that the charge was not made out to the criminal standard. I do not believe that it can be said that there was no reasonable or probable cause for that prosecution; on the basis of Mr. Foley’s evidence to the District Court, there appears to have been such a basis. However, even it could be said that there was no reasonable or probable cause for that charge, I am quite satisfied on the basis of Sergeant Geary’s evidence that there was certainly no malice on the part of the Gardaí in prosecuting the charge through to conclusion.

Likewise, in circumstances where the various other retail entities (primarily filling stations) had made criminal complaints to An Garda Síochána and had their evidence accepted in the District Court, but those witnesses did not show up in the Circuit Court, (perhaps due to the weather or because the plaintiff had belatedly settled the amounts owing) in my view there was reasonable or probable cause for each of the proceedings based on the complaints made. Insofar as I am wrong in that regard, I am quite satisfied on the basis of Sergeant Geary’s evidence, which I prefer to that of the plaintiff, that these proceedings were not instituted maliciously and that neither the DPP nor An Garda Síochána participated in the proceedings maliciously.

I am likewise satisfied on the basis of Sergeant Geary’s evidence that warrants for arrest stemming from the various breaches of bail bonds were again bona fide and validly obtained on the basis of reasonable and probable cause. The Gardaí did not act maliciously in that regard; the plaintiff repeatedly acted in clear disregard of those conditions.

As regards the prosecution of the plaintiff for non-appearance in court in June and July 2011, I accept Sergeant Geary’s evidence that these charges arose from the plaintiff’s failure to show up in court when there was a reasonable basis for the view that the plaintiff chose not to appear in court on invalid pretexts. I accept Sergeant Geary’s evidence that he had to contact the plaintiff when he did not show up at the court hearings and that the plaintiff offered what Sergeant Geary regarded as spurious reasons for non-attendance (such as the plaintiff’s need to be at “top secret but very important business meetings”). Sergeant Geary’s case in that regard was accepted by the District Court. I accept Sergeant Geary’s evidence that the Circuit Court judge when hearing of the fact that Sergeant Geary had made contact with the plaintiff over his non-appearances and the plaintiff sought to offer an excuse for same, said that she was prepared to give the plaintiff the benefit of the doubt. This is very far from a case of the Gardai admitting that they had falsely arrested, convicted and imprisoned the plaintiff as contended for by the plaintiff in his case before me. I am satisfied that these prosecutions were based on reasonable or probable cause and were not instituted or prosecuted maliciously. No case in malicious prosecution is made out on these matters either.

The plaintiff says that he served some 175 days in custody (he put the figure at 164 days in another place in his papers). The Gardaí contended he had spent 105 days in custody. Either way, I am satisfied on the basis of Sergeant Geary’s evidence that the time spent in custody was on foot of lawfully issued court warrants or orders. Accordingly, the period spent by the plaintiff in custody had a lawful and proper basis as resulting from orders made on a proper basis by the District Court.

The plaintiff contended that the courts which issued arrest warrants did so based on Sergeant Geary’s “lies” and that Sergeant Geary maliciously sought to ensure that the surety conditions could not be met. Again, I fully reject that contention which is based on a wholly unfair and vexatious allegation against Sergeant Geary, whose integrity and honesty in the witness box impressed me greatly. I am quite satisfied that there is no basis for the allegations of false arrest.

For completeness, I note that part of the plaintiff’s case is that the Gardaí maliciously contacted the IDA which resulted in the loss of a significant business opportunity involving a multi-million euro call centre business which the plaintiff was seeking to set up in Ireland. I am quite satisfied from Sergeant Geary’s evidence that no such malicious calls were made by the Gardaí to the IDA and that this allegation is rooted in the plaintiff’s distorted, conspiracy-theory fuelled view of the events underlying the criminal proceedings legitimately brought against him.

Insofar as the DPP was joined in these proceedings and the subject of the allegations of malicious prosecution, no evidence of malicious prosecution by or on behalf of the DPP was adduced and no such case against the DPP is made out.

Likewise, I am quite satisfied on the evidence that no case in conspiracy or wrongdoing is made out against the other defendants.

Sergeant Geary gave evidence, which I accept, that he devoted an enormous amount of time to the plaintiff and received a huge number of communications from him including some 479 emails from the plaintiff from the period 2011 to 2013, the vast majority of those being sent in 2011. It is clear that Sergeant Geary had to devote considerable time and energy to his dealings with the plaintiff over the years not just on the criminal investigations arising out of the plaintiff’s conduct, but in dealing with the plaintiff’s constant contact and in dealing with the groundless complaints made by the plaintiff about Sergeant Geary to Sergeant Geary’s superiors and to GSOC.

Sergeant Geary gave cogent evidence as to the detrimental effect which all of his dealings with the plaintiff had on him personally. As he explained it, he found it extremely stressful (as one can readily understand) to be the subject of constant communications from the plaintiff, and to have been the subject of a series of different investigations, including by an Assistant Commissioner, into his actions in relation to the plaintiff’s various proceedings, when Sergeant Geary believed that he had at all times conducted himself with professionalism, integrity and courtesy, a position clearly vindicated by the findings of the O Cualáin report. One can only have sympathy for what Sergeant Geary has had to endure over many years in the face of the plaintiff’s vexatious allegations against him.

For the reasons set out in this judgment, I dismiss the plaintiff’s claims in their entirety. No basis whatsoever has been made out for the very serious allegations of criminal conspiracy, false arrests and malicious prosecution which he has freely thrown about in these proceedings. The plaintiff has improperly sought to re-litigate in these proceedings matters which have been dealt with properly, fairly and exhaustively through the criminal process, including to appeal, and which have been the subject of complaints to a wide variety of bodies including GSOC and the IRM, all of which were rejected. These proceedings should never have been brought. They are a monument to the waste of time and resources inherent in vexatious proceedings; they have occupied a considerable amount of High Court time, the time of publicly-funded State lawyers and the time of Gardaí whose energies have needlessly been diverted away from matters more genuinely deserving of their attention in the public interest.