Couple sues Garda and State over alleged malicious prosecution

Summons issued in 2008 purported to be from sergeant stationed in Kosovo, it is claimed

A couple are suing the Garda Commissioner and State in the High Court for damages over alleged malicious prosecution in 2007 and 2008 on the alleged direction of Garda inspector Noel Cunningham while stationed in Virginia, Co Cavan.

Among the claims by Walter and Genevieve Smith is that a summons purportedly issued by a Garda sergeant was issued on a date when that sergeant was on overseas duty in Kosovo.

Five summonses issued against the couple were ultimately either withdrawn or struck out, Ms Justice Miriam O’Regan was told.

The Smiths, who had lived in Virginia but now live in Dunshaughlin, Co Meath, are claiming damages, including aggravated and exemplary damages, on grounds including breach of constitutional rights and malicious prosecution. Their claims are denied.

In a pre-trial application on Thursday, Pat Purcell, counsel for the couple, sought discovery of reports exchanged between a Garda chief superintendent, the Cavan State Solicitor and the DPP concerning the Smiths’ prosecutions.

Mr Purcell argued the defendants were not entitled to privilege over the reports when a claim of malicious prosecution was advanced. Alternatively, the court might inspect the reports and consider what should be done with them, he suggested.

Conor Maguire SC, for the defendants, said the plaintiffs had been given all statements taken by investigating gardaí but were not legally entitled to reports concerning how gardaí handle the bringing of prosecutions.

In her ruling, the judge said she had “enormous sympathy” for the plaintiffs, not least because of the multiplicity of charges brought against them which did not succeed.


Based on their evidence, they are not entitled as of now to see the reports, she said. While Mr Smith said in a sworn statement he was told by gardaí the alleged decisions to prosecute him maliciously were made and directed by Insp Cunningham, she could not direct discovery on hearsay in the absence of direct evidence from gardaí.

Earlier, the judge remarked it seemed Mr Smith had made out some case of malicious prosecution on the basis of the sergeant being in Kosovo when he was supposed to have signed the charge. “You’re going to have difficulty getting over that,” she told Mr Maguire.

The background to the case is a dispute between the couple and their then neighbours in Virginia, Marie and Michael Byrne. In April 2006, Ms Byrne was convicted at Virginia District Court of assaulting Ms Smith on July 21st, 2005, and ordered to pay €10,000 compensation.

The matter was adjourned for reasons including to permit Ms Byrne complete an anger management course. The Smiths claim, when the case was called on the adjourned date in March 2007, Garda inspector Michael Curley, who stated he was acting on the instructions of Noel Cunningham, applied for an adjournment on grounds gardaí wished to conduct an investigation of the Smiths. The adjournment was refused.

The Smiths claim no proper investigation was carried out and allege “malicious” decisions were made by Insp Cunningham to prosecute them.

Three summonses were issued against Mr Smith, it is claimed. Two alleged breach of the peace and assault of Michael Byrne on December 4th, 2006, at Main Street, Virginia.

Mr Smith claims the third summons was based on a false complaint by Marie Byrne of July 12th, 2007, alleging Mr Smith exposed himself from a window in his home which adjoined hers. Mr Smith said he was at all material times in his workplace that day, that was made clear to investigating gardaí, and the DPP directed no prosecution.

Sexual offence

Notwithstanding that, Mr Smith claims the Garda Pulse system had, under the “Person Search” section, recorded him as a suspect in respect of a sexual offence. After his solicitor complained, that was amended to describe him as a “witness” in the alleged sexual offence allegedly committed by him in July 2007. The Pulse record caused “huge upset” to Mr Smith, Mr Purcell said.

While the two earlier charges were also dropped, and the summonses withdrawn on December 20th, 2007, by the prosecution, Mr Smith alleges that almost a year later, on December 10th, 2008, a Garda sergeant Conroy from Virginia station purportedly applied for new summonses against him alleging breach of the peace in Virginia on September 10th, 2008.

Mr Smith claims the summonses application was not in fact made by Sgt Conroy, then in Kosovo , but was made by an unknown person on the allegedly malicious direction of Insp Cunningham. The summonses were struck out on the basis Sgt Conroy could not have applied for them as he was in Kosovo.

In her action, Ms Smith alleges malicious prosecution on foot of two summonses alleging offences of public order and assault, both of which were withdrawn at the direction of the DPP.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times