Widower’s damages claim is struck out

An action for damages brought by the widower of murdered mother of two Sylvia Roche Kelly has been struck out by the High Court.

The body of Ms Roche Kelly, from Sixmilebridge, Co Clare, 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, Co 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.

Widower Lorcan Roche Kelly from Sixmilebridge, Co Clare, sued the State, the Garda commissioner, and the justice minister, 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 free to kill his wife.

The defendants denied all claims.

Yesterday, High Court president Mr Justice Nicholas Kearns, ruling on a pre-trial motion brought by the State to dismiss the action, said “this was a very tragic case”. He found “on the basis of the existing law in this jurisdiction it was not a case that could be successful”.

The State, in its preliminary application,

argued that Ms Roche Kelly was an unfortunate woman killed by McGrath but there was no special connection between the killer and his victim that gave a particular rise to a duty of care.

Lawyers for Mr Roche Kelly argued that 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 Co Cavan in April 2007 and was admitted to station bail and later remanded on continuing bail. In October 2007 he was accused of the false imprisonment of a child in Co 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.

Mr Justice Kearns said 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 to consider the ruling.


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