Nevin acquitted of possessing mobile phone in prison

Catherine Nevin was today acquitted of possessing a mobile phone at the Dochas centre, in Mountjoy prison, nearly two years ago.

Nevin (aged 58) was found not guilty at a non-jury trial before Judge Aeneus McCarthy at Dublin District Court, of possessing the mobile phone, contrary to the Prisons Act 2007, at the Dochas centre, the women’s section of Mountjoy Prison, in Dublin, on January 28, 2008.

For a split second her jaw dropped in shock and she then smiled as the judge held that the chain of evidence in the case was not sufficient to bring about a conviction.

Nevin had then been classified as a “privileged” prisoner, and lived in rooms in a house with minimal supervision in the prison complex, the court was told.

Nevin, who was wearing a black suit, pink blouse with a chiffon scarf, had pleaded not guilty to the charge, which on conviction at the District Court could have resulted in a fine not exceeding €5,000 and or a one-year jail term.

The five-hour trial proceeded despite earlier efforts by Nevin to have the case delayed pending the outcome of the Court of Criminal Appeal’s decision on her bid to have her murder conviction declared a miscarriage a justice.

In 2000, Nevin was convicted of murdering her husband Tom by a Central Criminal Court jury after a 42-day trial and five days’ deliberation.

While she did not give evidence in chief as part of her defence, she was called to the witness box and testified about her interview with a detective in the prison, the details of which were held by the judge to be inadmissible.

In evidence, prison officer, Jean O’Reilly told State’s solicitor Ms Catherine Irvine, that on January 28, 2008, she entered a room shared by Nevin and prisoner Nokukhanya Cele.

Cele (aged 35), from South Africa, who was serving a sentence for importing drugs, had pleaded guilty to possessing the same mobile phone and three more phones on other dates. After her sentence expired she was deported from the country.

The witness sai: “I went in Nokukhanya was sitting on the bed, Catherine was acting suspicious and had the covers over her. I lifted the blanket and she had a mobile phone in her hand. I asked her to give it hand it over, she did.”

She told defence solicitor, Ms Anne Fitzgibbon, that the grey Nokia phone had been switched on, and she gave later handed it over to the chief prison officer Mary O’Conner.

She agreed that she has seized other mobile phones but said that she was sure the one exhibited in court was the same as the one handed over to her by Nevin. However, she agreed when it was put to her that she could not definitively say that it was the same phone.

Chief Prison Officer Mary O’Connor told the court that when she received the phone it was still switched on and she was able to access its calls log and messages. She agreed that she checked the phone’s message inbox, outbox and voice messages.

“You say recognised the voice on the mail box?” asked the defence to which the witness said: “Yes”.

She then said the voice was that of Dr Bill Tormey. When asked why she recognised his voice she said “he is a public figure”. When further probed as to how she knew the voice, she replied: “I would have heard it.”

Ms Fitzgibbon put it to the witness that she could not be certain that the phone exhibited in court was the same as the one prison officer Jean O’Reilly said she took from Nevin. In reply, Ms O’Connor said: “it’s a very similar type”.

Dochas centre governor, Ms Kathleen McMahon said in evidence that she later handed the phone over to the gardaí. She said that Nevin had “privileged status at that stage”.

Nevin had minimal supervision and was placed in a house the complex where only the front door is locked.

The witness also told Judge McCarthy that there were notices all around the prison stating it was a criminal offence to have or use a mobile phone there.

Detective Superintendent John McMahon said he sought permission from the prison to speak with Nevin there. He said she was cautioned that she could have a solicitor present or could be brought to a Garda station where a videotaped interview could be held.

He said he told Nevin at the prison that she was free to leave and added that if she did he would then have sought a warrant to have her taken to a Garda station to be questioned.

He denied suggestions that Nevin had been denied the right to have a solicitor present or to have her interview videoed. He said Nevin told him she had already obtained legal advice.

Nevin did not give evidence in chief but was called to testify when the defence raised the issue of the admissibility of her of her memo of interview.

She swore on the bible, swept strands over grey golden hair over her left ear and smiled placidly as she told the district judge, whom she called “my lord”, that she had not been cautioned by the Garda that she could have a solicitor present.

She claimed she mentioned she had spoken to her lawyers but that was in relation to her other case.

Nevin said she had been told by the prison authorities that two gardaí wanted to speak to her about the phone and that she had pre-prepared notes “not really a statement” detailing the events which she gave to them.

“I had a prepared statement ready, he said to me that they wanted to talk to me further about the phone. Then he said to me that anything I was saying would be taken down, he started to write and asked questions about the phone.”

In cross-examination, State’s solicitor Catherine Irvine put it to Nevin that she had agreed to see the gardaí.

“I was asked a couple of days before would I see the gardaí in connection with the phone,” Nevin replied.

She agreed she was willing to speak to the officers and that she handed over a statement to them.

“I did not know what they were coming in to me about, I didn’t understand because the phone was not my phone,” she said. “I did not know if I had to give a statement or if they were going to speak to me.”

She said the phone belonged to Cela and added that she was cautioned that what was saying would be “taken down and could be used against me”.

She denied that she had voluntarily handed over her own notes she had written and that “they said they were there about the phone and I had to speak to them”.

Ms Irvine put it to Nevin that she was free to leave the interview at any time. Nevin replied that “I was told to go there, when you are told to do something by the governor, or ACO or chief, you just do it and that is it. I was told to go there and I went there.”

“I was told nothing about consulting a solicitor at all,” she also said.

She also reiterated that she felt she had to speak to the officers: “I did not have a choice.”

She then returned to her seat, five rows behind the lawyers, where she was flanked by two female prison officers.

Judge McCarthy agreed to the defence submission that Nevin’s statement and the notes she made and handed over to gardaí were inadmissible because of the setting of the interview in a prison.

Detective Superintendent John McMahon then resumed his evidence and told the court the phone was then taken by Detective Garda Sean O’Brien.

Det-Gda O’Brien, said it was examined forensically but apart from that it remained in his locker in his office to which he only has a key. Nevin suppressed a smile when Det-Gda O’Brien said that anyone trying to get into the locker would have to “walk over me”.

Judge McCarthy heard that the phone was forensically examined by Detective Garda Pat Connell. He told the court that a number of calls and text messages were to and from African and some UK numbers.

He said a report on the phone undertaken last year had been “corrupted” and that the phone had to be re-examined in August this year.

After the State concluded its case, the defence did not go into evidence. Instead, Nevin’s solicitor sought a dismissal. Ms Fitzgibbon said the State had not made a prima facia case against her client.

She said no evidence was given by the governor that Nevin did not have permission to have a phone in the jail. She also submitted that the defence could not call Cele, who was convicted of having the same phone, because she had since been deported.

Ms Fitzgibbon also argued that had been a break in the chain of evidence as three witnesses employed at the prison could not be certain that the phone exhibited in court was the same as the one allegedly taken from Nevin.

She also asked Judge McCarthy to note that Det-Gda Connell, when he was detailing phone numbers on the phone’s log, had not mentioned the mailbox number which was called by Chief Prison Officer Mary O’Connor.

After considering the submissions Judge McCarthy said he was not holding with the defence on the issue of Nevin not having permission to have the phone. Evidence had been given that there were notices in the prison saying they were forbidden.

Nevin nervously fingered her scar as the judge went on to say that there was no evidence of telephone numbers being found which linked her to the phone.

He said the prison staff all gave evidence and in cross-examination “could not say it was the same actual phone”.

He said the original forensic report on the phone had become corrupted and the device had to be re-examined.

Dismissing the charge, Judge McCarthy said he was “not satisfied that the chain of evidence is linked together in a way that would create a prima facia case”.