Decision not to prosecute Murphy was raised in Dail

A decision by Howth gardai not to prosecute Mr Joseph Murphy jnr for allegedly threatening Mr James Gogarty in 1994 was raised in the Dail in 1995, at Mr Gogarty's behest, the Flood Tribunal was told yesterday .

Continuing his evidence yesterday, Mr Gogarty said that between the end of 1992 and 1994 late night threatening phone calls were made to his house, two family cars were damaged in his driveway and a shot was fired through the window of his home.

Mr Gogarty said he reported the matter to a Det Sgt Bernard Sherry at Howth Garda station and also reported the matter to his solicitor, Mr Michael Hegarty. He said he was particularly disappointed that Det Sgt Sherry had decided not to prosecute Mr Murphy jnr.

Mr Gogarty said he disagreed with the detective sergeant "because I felt that there was credible evidence there, that is what I felt strongly. If it was fully investigated we wouldn't be sitting here today. I felt it was an error of judgment on his part."

However, he added that he now accepted from a statement made to the tribunal by Det Sgt Sherry that he had reasons for not prosecuting. He said he accepted that Det Sgt Sherry was acting properly but he disagreed with his conclusions.

Mr Gogarty said that if he had been given those reasons at that time "I would have accepted them although I disagreed with the judgment". Mr Gogarty's evidence was, however, disputed by counsel for the Garda, Ms Nuala Butler BL, who objected, saying that the reasons given to Mr Gogarty four years ago were the same as the reasons he had read in the statement to the tribunal.

Counsel for the tribunal, Mr John Gallagher SC, then read from a contemporaneous note prepared by Mr Gogarty's solicitor, Mr Michael Hegarty, relating to a meeting with Mr Gogarty and his accountant, Mr Seamus Howley, in October 1994. Mr Hegarty's contemporaneous note recalled that Mr Gogarty said a shot struck the front window of his home. "The gardai were called to the scene and they confirmed that the hole in the glass had been caused by a pellet," read Mr Gallagher. It was also noted that in January 1994 both cars belonging to the Gogartys were damaged in the drive of their home. Both incidents had been referred to Howth gardai.

Mr Hegarty's note recorded that "Mr Gogarty told me that Mr Joseph Murphy jnr had been convicted of assault in Dublin five to seven years ago. Apparently he had assaulted a girl in the Berkeley Court Hotel at a rugby festival dance. He did not receive a prison sentence but was fined £100."

At this point Mr Garrett Cooney SC for the Murphy group objected saying this was "a false statement".

Mr Hegarty's note also recalled that a telephone call had been received from Det Sgt Sherry, while Mr Gogarty and Mr Howley were in the room. According to the note Det Sgt Sherry said "he thought it was better he telephone me to discuss the matter rather than sending me a response in writing.

"Sgt Sherry outlined to me how Howth gardai had become involved in the incident regarding the threatening phone calls. He said Mr Gogarty had called to Howth Garda station and reported the call . . . Mr Gogarty indicated that Mr Joseph Murphy junior had made the calls.

"Sgt Sherry said that Mr Joseph Murphy appeared to have made a phone call while under the influence of drink. He then stated that words had been used by Mr Joseph Murphy jnr. In particular he said that Mr Joseph Murphy jnr had told Mr Gogarty he was going to put a stop once and for all to all Mr Gogarty's hassles. Sgt Sherry felt that this was only `drink talk' as no direct attack was made subsequently on either Mr Gogarty or Mrs Gogarty."

The note adds that the only contact for Mr Murphy which the gardai had was through Lagos Holdings. "Sgt Sherry said that in his opinion it would not be worthwhile to bring a prosecution against Mr Murphy jnr as there would be difficulty in proving the case against him and there would also be difficulty in serving a summons on him."

Sgt Sherry said that the Garda files would be kept and if a civil prosecution was to be made by Mr Gogarty, the Howth gardai would be prepared to give evidence.

Following the reading of the note Mr Gogarty said his recollection was that "when we were talking the phone rang and Mr Hegarty had a long conversation on the phone. Mr Hegarty summed it up in a few sentences. He said Mr Sherry had been on the line to him in response to his letter and his [Mr Hegarty's] advice was not take issue with the guards or embarrass them, that they would be helpful down the line with our civil action."

Mr Gogarty said he was annoyed about that because it seemed that he wasn't being taken seriously. He added that he had "nothing against the guards but I am entitled to question the conduct of an investigation".

He maintained that he was not questioning the guard's motives but he still disagreed with his judgment. Pressed by Mr Gallagher, counsel for the tribunal, as to whether or not there was any wrongdoing on the part of the gardai Mr Gogarty replied "no". i. Mr Gogarty said that had the file been sent to the Director of Public Prosecutions "it would have saved all this trouble at the present time, that's what I believe, what I still believe'.

Ultimately Mr Gogarty contacted Mr Tommy Broughan TD and the then TD Mr Michael McDowell, who both tabled questions to Mrs Nora Owen, the then minister for justice, on the matter "but it was kicked to touch", he said.