Informer handling ‘prevented fair trial’

Lawyers for a convicted murderer have told the Court of Appeal their client could not get a fair trial due to the “scandalous” handling of a garda informer.

A Dublin man jailed for life for murder nearly eight years ago must wait to hear the outcome of an appeal against his conviction.

Peter Kenny, aged 35, of McCarthy’s Terrace, Rialto, Dublin, had pleaded not guilty to the murder of John Carroll, aged 33, who was shot while socialising in Grumpy Jack’s pub in the Coombe, Dublin, in February 2009.

Kenny was found guilty by a Central Criminal Court jury and given a life sentence by Mr Justice Barry White on July 19, 2011.

Opening an appeal against conviction, Kenny’s barrister, Seán Gillane, said the prosecution centred on the evidence of Joseph O’Brien, a “drug dealer”, former suspect, and garda informant.

Mr Gillane said the genesis of Mr O’Brien’s evidence, and the manner it was brought about, must cause the Court of Appeal concern.

Some aspects of how Mr O’Brien was handled by the gardaí were “scandalous”, counsel said. It led to an application that a fair trial could not be secured and that Mr O’Brien’s evidence should have been excluded.

He said Mr O’Brien was arrested on suspicion of murder, brought to Pearse Street Garda Station and brought into a room for a meeting with Det Sgt Adrian Whitelaw and the late Superintendent PJ Browne.

Neither Det Sgt Whitelaw nor Supt Browne took a note of anything that transpired over the course of two hours, Mr Gillane said.

He said the “deliberate and calculated” way this was done made the fruits of the discussion almost impossible to subsequently analyse.

Mr Gillane said the relationship between Det Sgt Whitelaw, Supt Browne, and Mr O’Brien, which the defence did not know about until just before the trial, was “never pinned down” as none of the people responsible for managing it ever took a note or shared the existence of it with anybody.

He alleged that almost every piece of material related to the meeting resulted in huge divergences in terms of Mr O’Brien’s motivation for making the statement, who mentioned the witness protection programme, who mentioned immunity and whether immunity was applicable to this prosecution.

Counsel said that, from 2005 on, Mr O’Brien was an informer, a “known drug dealer”, who was giving information to Det Sgt Whitelaw “in that capacity”.

What was worse, said Mr Gillane, was that guidelines on how informers were to be dealt with were not just inadvertently breached but “knowingly breached”. He said Det Sgt Whitelaw had received the guidelines, relating to the Covert Human Intelligence Source, and “nonetheless continued to operate in the way that he did”.

Patrick Gageby, for the DPP, said lawyers had not demonstrated how “opaqueness” impacted the case as proved against Kenny.

Mr Gageby said it was hard to see how any of the evidence might have been materially affected by anything that was or was not said in the meeting.

He said the case against Kenny largely came down to telephone traffic and his attendance at the place where the gun was in the car.

The court reserved judgment.

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