Barr Tribunal Report Chapter 7

CHAPTER 7

The Aftermath — Post-Mortem, Forensic and Ballistic Examination

SECTION A: — Post-Mortem Examination 1. Evidence of Professor John Harbison

At approximately 7:00 p.m. on 20^th April, 2000, Professor Harbison, State Pathologist, was contacted by the Garda and was told that there had been a fatal shooting in Longford. Before leaving Dublin, Professor Harbison made arrangements to have John Carthy’s body removed to hospital in Mullingar and he subsequently arrived there at approximately 10:25 p.m. As the time of the shooting was known, he considered that it was not necessary to examine the body at the scene. He deferred his visit to the scene until after the post-mortem examination. He visited the location on the following day, Friday, 21^st April, 2000.

Professor Harbison instructed the radiographer on duty to have x-rays taken of the skull, chest, abdomen and thighs. No fractures were detected. The body was identified by Mr. Thomas Walsh at 12:30 a.m. The post-mortem examination was carried out later that day.

The clothing on the body was examined, three holes in the front of the jeans were seen. John Carthy had been wearing a padded navy blue jacket and examination of it also revealed a number of holes made by the bullets. Holes and blood staining were also noted on other garments worn by him, including a football shirt.

There were a number of wounds on the front and back of the body, and Professor Harbison ascribed a numbering system to them, referable to entry and exit wounds from the top of the body down. The entry wounds were identifiable by virtue of their shape and the existence of what were described as ‘‘abrasion collars’’. These wounds were on the back of the body and were numbered 1 to 4. The exit wounds which were on the front of the body were irregular in shape and were larger than the entry wounds. The nature of the exit wounds was consistent with the bullets ‘‘tumbling’’ through the body before exit. The wounds were as follows:

i Wound No. 1 — An exit wound of the bullet which had entered John Carthy’s back at the level of the first lumbar vertebra, corresponding with entry wound No. 5. Exit wound No. 1 was an oval wound 1 inch above and to the left of the left nipple and over the left fourth rib. Entry wound No. 5 was circular, over the first lumbar vertebra just to the right of midline of the lower back. It was 7mm. in diameter and surrounded by a ‘‘slightly oval abrasion collar.’’ Between entry and exit there was a rise of 95 8 ins. between 50 and 60 degrees from back to front in a person standing erect. These

measurements were approximated from the differences between the heights above John Carthy‘s heels. The pathologist inferred that the subject was ‘‘crouching somewhat’’ when struck by the fatal bullet, inflicting damage to the heart. While this wound did not ‘‘absolutely have to be the last to go in chronological order, it was common sense that it was the last one’’. Therefore, this equated with the wound inflicted by the fourth shot. Internal examination revealed that this bullet passed through the left psoas muscle at the level of the body of the twelfth thoracic vertebra, thereafter passing through the upper pole of the left kidney. It went through the stomach and the diaphragm; and then through the left ventricle of the heart.

i Wound No. 2 — An exit wound on the anterior surface of the scrotum corresponding and connected with entry wound No. 6 over the sacrum or base of the spine. The wound went forward and ultimately exited through the scrotum and the penis. The entry wound was over the sacrum, 11 mm. from upper left to lower right.

i Wound No. 3 — An exit wound on the left thigh. There was also a slightly open entry wound on the postero medial aspect, or outer surface, of the left thigh with an abrasion collar on its inner and upper margins. This corresponded to entry wound No. 8, a wound which was on the inside of the left thigh.

i Wound No. 4 — An exit wound, just below the buttock corresponding to entry wound No. 7 which was a slightly oval wound, 6mm. by 5mm. on the postero lateral aspect (outer surface) of the left thigh. Entry wound No. 7 had an abrasion collar: it was 2ft. 6ins. above the left heel. It was thought that there was some slight difference in the trajectories of the two bullet wounds to the thigh.

i Wound No. 9 — An injury to the right calf was labelled wound No. 9 by Professor Harbison. This wound consisted of two superficial lacerations at the back of the right calf with a communication track through the subcutaneous tissue.

The abrasion collars on the wounds at the back of the body were evidentially consistent with 9mm. bullet entry wounds.

There were no other injuries to John Carthy’s hands or legs. Professor Harbison confirmed that he found no marks or indicators on the subject’s face which might suggest that it came in contact with the road. He thought that the entry wounds for the first three bullets suggested an intention to fire ‘‘at a low trajectory’’.

He described the body as that of a lean, relatively young male. Professor Harbison stated that from his post-mortem examination, John Carthy was in a reasonably good state of health and fitness, although he stated that this did not necessarily mean athletically fit, rather, disease free.

The source of wound No. 9 was considered in detail. Professor Harbison informed the Tribunal that he had received information from gardaı´, whose names he could not recall, that four bullets had been discharged. Initially, he was not sure that the source of the wound was a bullet and described it as a ‘‘projectile’’. He found it difficult to make a diagnosis of this injury, because it did not look like a bullet wound. The possibility therefore arose of a re-entry and exit wound. It was not certain in which direction this wound was inflicted. He favoured the view, that the upper was an entry wound and the lower an exit wound. He had no doubt that the other bullet wounds entered from the back and exited the front of the body. A difficult but possible explanation for the fifth wound was that the leg was raised to an almost horizontal position. He thought it very unlikely that this was a ricochet from the road, because a bullet ricocheting off a hard surface would distort whereas the oval wound at the upper end of the tract and also the one at the lower end implied a cylindrical object passing through. This was also difficult to explain in the absence of injury to the thigh area. One therefore had to postulate, he said, that the bullet or projectile may have deflected slightly in the soft tissues from its entry as it went through. He could not see how the wound could have been inflicted from the front, as there was no wound to the front of the leg. The only other possible explanation was a high stepping gait on the deceased’s part. It would have been easier to explain the wound, as a fifth wound, he stated, rather than having to contort the body into such a position as would permit an explanation that a bullet from one of the four injuries in the trunk of the body deflected into the calf. He observed:

‘‘The only wayI could see that as being possible would be for the leg almost straight, to have been raised parallel with the road, in a sort of high kick position, which is not a normal running or walking position of a leg... like a goose step’’.

An explanation would have been much easier if he had heard that there was a fifth shot, but, he said, he had heard nothing of a fifth shot. Even in the context of another bullet it was a difficult wound to explain because if the deceased had been standing when struck, the bullet would have to have come from above. He also thought that this was unlikely.

Professor Harbison had heard this type of situation described medically in other cases as ‘‘diagnostically destitute’’. With no other explanation and only four bullets, he expressed the opinion that it must have been a re-entry wound. Nevertheless, he considered that re-examination of John Carthy’s jeans might be necessary to throw light on this.

Having reconsidered the forensic evidence and in the light of examination of the clothing, he agreed with the contents of the final report and evidence of Professor Christopher Milroy (a consultant pathologist whose evidence is considered below) that this wound was caused by the bullet which had entered John Carthy’s lower back and exited through the scrotum; having been deflected downwards on its route. In chronological terms, this equated with the third bullet which struck John Carthy; and the first discharged by Detective Garda McCabe.

Information regarding shooting

Professor Harbison told the Tribunal that it was his practice to seek background information from the garda in every case before embarking on post-mortem examination. He stated that such information as he had received in relation to what occurred at the scene was transmitted to him by members of the Garda, but he could not recall at the time of giving evidence the precise nature of the information he had received or from whom he had received it. However, he produced a handwritten note to the Tribunal which referred to Detective Garda James Campbell and ‘‘info re shooting’’. There was also a short written reference to Superintendent Michael Byrne. Professor Harbison had no recollection of speaking to Garda Campbell or of the information which was imparted. Further, he had no recollection of when he first became aware that the gardaı´ had indicated or accepted that four shots had been discharged. He thought that assuming normal procedures were followed by him, it would have been at, or even before, the post-mortem examination.

2. Evidence of Professor Christopher Milroy

Professor Milroy is a Professor of Forensic Pathology at the University of Sheffield and a Consultant Pathologist to the Home Office in the United Kingdom. At the time of giving his evidence to the Tribunal, he was also the Chairman of the Royal College of Pathology. He prepared a number of reports which were submitted to the Tribunal. In one of his early reports he expressed the opinion that the wound to the right calf was problematic. He felt that this wound might represent a fifth, probably ricocheting bullet. Professor Milroy described the appearance of ‘‘more holes than bullets fired’’ as a ‘‘not uncommon problem’’ presented to pathologists from time to time.

He thought that for this to be a re-entry and re-exit wound and in order to account for its vertical anatomical track, John Carthy’s right leg would have to be held in a high position with the leg extended horizontally. He expressed a preliminary opinion that if it was a re-entry and exit wound, an explanation was that the right leg was brought up following the infliction of the wound to the lower sacrum. This, however, also seemed unlikely given the nature of the slope of the road and the body position that would have to be adopted. In an initial report he stated that the source of the fifth wound ‘‘is likely to be a matter of conjecture’’.

Subsequently, Professor Milroy, when attending the Tribunal, and in course of his evidence examined the jeans and other items of clothing. He also reviewed photographic evidence of x-ray examinations of the pelvic area. Following that examination, he reported to the Tribunal and concluded as follows:

‘‘In my opinion, the wound present on the right calf, injury number 9, in Professor Harbison’s report, has resulted from the same bullet that has caused injuries, numbers 2 and 6. This bullet has entered the back of the body through the sacrum. It has then traversed the pelvis, before striking the front of the pelvic bone. This has resulted in the bullet being deflected steeply downwards and has exited the body through the right testes before continuing downwards, damaging the jeans above the level of the knee and has entered and exited the calf before exiting the jeans.’’

He continued:

‘‘Further evidence for this pathway is shown in the examination of the clothing. The defect in the underpants and the jeans would suggest a quite steep trajectory through the pelvis, which is inconsistent with the position of the gardaı´who fired the guns. Although Professor Harbison records the exit wound injury number 6, as being some 2.5 inches below the entrance wound, it is likely that this was measured from the scrotum and not the symphysis pubis. If one considers the pathway of the bullet through the pelvis, it is clearly more horizontal than the distance as recorded above the heel for the entrance and exit wounds. I have considered the possibility that the calf wound represents a fifth bullet having been fired. However, as this must have been fired from in front of John Carthy and then ricocheted off the road, it would then have caused further injury to John Carthy in view of the findings in the jeans. That is, it would have travelled upwards and struck the thigh pelvic area and no such additional damage was present. Therefore, having considered the post-mortem finding, in combination with the damage to the clothing, it is my opinion that all the injuries on John Carthy have occurred from the result of the discharge of four bullets. The medical evidence does not support a fifth bullet having been fired.’’

Professor Milroy demonstrated this by reference to the clothing. The bullet which was discharged at the lower sacrum (i.e. the first shot fired by Garda McCabe) exited through the jeans, and instead of being somewhat towards the top of the fly area, it was a number of inches below that point. This further indicated that the bullet must have been deflected downwards:

‘‘That also fits the fact that it went through the root of the penis and then through the scrotum and the scrotum lies lower than the symphysis pubis.’’

This bullet struck the pelvic bone, he concluded. It struck the symphysis pubis, as was evidenced in the photographs which were produced to the Tribunal. The bullet came out low down, struck the symphysis pubis and deflected downwards steeply. This deflected bullet thereafter entered and exited John Carthy’s right calf. The direction of this bullet had to be downwards, because if it was travelling in the other direction, an injury to the subject’s thigh would have been expected.

He also stated that this explanation was consistent with a normal walking motion rather than what had been described earlier in the Tribunal as a ‘‘high stepping gait’’ or a ‘‘goose step’’. Entry wound No. 2 and exit wound No. 6, accounting for the wound in the calf, did not entail any exceptional leg movement. Ordinary walking was sufficient to account for that movement. In addition, the nature of the calf wounds on entry and exit were indicative of an ‘‘unstable bullet’’. The holes were too big to be an initial impact from an undeflected bullet. Professor Milroy explained as follows:

‘‘A bullet that is discharged from a rifled weapon, by which I mean all the weapons used in this, the Sig Sauer pistol and the Uzi machine-gun, they have rifling in the barrel. In other words, these are grooves cut into the barrel so that

the bullet will come out and it will spin. It is spinning and that will give it gyroscopic stability and that is why you do it. It makes the bullet much more accurate and the bullet going much straighter. Now a normal bullet will spin . . . once it has entered this tissue, because you have got forces then dragging on it, it becomes unstable and it begins to tumble. It will tumble in a straight line but it will cause more damage, a bit more damage than the flat end and also because the bullet is tumbling as it comes out of the skin, it causes a larger exit wound, and that is how we pathologists often work out exit and entrance wounds, because the entrance wound is regular; because it is the end of the bullet that is going in and the tumbling bullet indicates that it is a larger wound. Now this wound in the calf is irregular and therefore a tumbling bullet might tumble and actually go in head first or it might be at an angle like that, say 45 degrees where you get a large entrance wound’’.

If this was a fifth bullet, it had to be a ricochet and it must have hit an intervening target, he contended. Having considered all the circumstances, Professor Milroy concluded that there was no evidence of John Carthy having been struck by a fifth ricocheting bullet. The wound was accounted for by deviation of one of the four bullets which were discharged at John Carthy; being the bullet which went through his pelvis. As the bullet causing wound No. 2 crossed the pelvis it was relatively horizontal and was in a similar direction to the thigh wounds. As it exited the front of the pelvis it was deviated. The fact that the bullet exited through the testes indicated that it must have exited through the crotch area in the jeans. This further indicated a change in the pathway of the bullet by way of a sharp diversion downwards. The bullet trajectory was essentially horizontal to a point near the symphysis pubis. When it emerged, it went downwards, almost 90 degrees in a change of direction.

Professor Milroy stated that had one carried out an autopsy on a person about whom the pathologist knew nothing other than that he had been shot by people in a laneway, a ‘‘blind autopsy’’, that it would have been ‘‘quite right to have considered the possibility of a fifth bullet having caused that injury to the calf’’. Had he no information regarding the number of bullets discharged, he would have considered the possibility of a fifth bullet. The examination of clothing, he said, ‘‘is not always readily available when a forensic examination is being carried out, given the fact that clothing may be required for other forensic purposes’’. The examination of the clothing, in this case, had been instructive:

‘‘Q. In summary, therefore, on this portion of your evidence, you are saying that it would have been correct to consider the possibility of a fifth bullet at the time of the autopsy?

A. In my opinion, it would be.

Q. But that you, having considered the medical evidence and the evidence in relation to clothing, that you have discounted that possibility?

A. I have’’.

Had the bullet been discharged from the front of John Carthy, additional damage would have been detected on the body. There was, therefore, no medical evidence that John Carthy had been shot from the front. The possibility of a bullet having been discharged from the front was also excluded because of the nature of the injury and the damage to the clothing. Professor Milroy stated that the wound could not have been a ricochet from behind given the leg position. Therefore, the possibility of a fifth ricocheting bullet from behind could also be excluded. Professor Harbison, having had the opportunity to consider the revised report of Professor Milroy, agreed and accepted his opinion.

3. Ruling of the Tribunal

Following consideration of the foregoing revised evidence given by Professors Milroy and Harbison, the Tribunal issued an interim ruling excluding the possibility of John Carthy having been struck by a fifth bullet. In the light of Professor Milroy’s ultimate opinion, with which Professor Harbison agreed, the Tribunal is satisfied that John Carthy was struck by four bullets only. The full content of the ruling is contained in Appendix 7.F to this Report.

SECTION B: — Forensic and Ballistic Examination

1. Introduction

The evidence of what occurred when John Carthy emerged onto the roadway, in relation to the actions taken by members of the Garda Sı´ocha´na, primarily and almost exclusively, derives from the direct evidence of those who participated in the events or their superiors. What happened was not video recorded, as CCTV equipment had not been brought to the scene. Neither were they audio recorded, as tape recorders were not utilised.

Detective Sergeant Jackson and Detective Garda McCabe confirmed that they discharged their weapons. All other armed officers who were present at the scene, (ERU and local members) were questioned on whether they had discharged their weapons and all stated that they had not. All officers, including Sergeant Jackson and Garda McCabe, were questioned on whether they were aware of any other persons discharging their weapons and all stated that they were not.

The evidence of the pathologists establishes that John Carthy was struck by four bullets, one of which caused his death. As part of the forensic examinations which took place, John Carthy’s shotgun and 13 weapons of the ERU were examined but the weapons of local armed officers were not. Such ballistic examinations as took place revealed that bullets were discharged from two weapons which were the property of the ERU. These weapons were the Sig Sauer pistol used by Sergeant Jackson and the Uzi sub-machine gun used by Garda McCabe. That examination excluded the possibility that shots were discharged from weapons, other than the

two aforementioned; thus corroborative of their evidence in this regard. The bullets issued to members of the ERU have been accounted for in evidence.

John Carthy’s weapon was found to have recently been discharged. There was one live cartridge in the left barrel and the safety catch was discovered to have been off.

Certain further ballistic evidence which was readily capable of being ascertained, however, was not pursued. The weapons of local armed gardaı´ were not examined. Some of these gardaı´ had their weapons drawn; and in one case, according to the evidence of Detective Sergeant Foley, he was a split second from discharging his weapon at the subject. The Tribunal considers it not only appropriate, but necessary, to consider the evidence regarding absence of examination of these weapons and the explanations proffered therefore.

The Tribunal has also considered the weapon and ammunition records discovered to the Tribunal and maintained by garda stations in the Longford/Westmeath division at which various officers at the scene were based; Longford, Athlone, Granard and Mullingar. In the case of Granard, the records are complete; in the case of Athlone, the ammunition and issuing records are not complete. The Tribunal has not had sight of any records for Longford or Mullingar garda stations.

Chapter 25 of the Garda Code provides for regulations in relation to record keeping and the issuing of firearms. The code also imposes an obligation to provide a duty report whenever firearms are produced or used on duty. No such formal duty reports were prepared. The explanation given for this was that such reports were not completed by reason of the investigation which was undertaken by Chief Superintendent Culligan in the course of which all the local armed officers at Abbeylara had made statements recorded in writing which contained the information which would have been specified in formal duty reports.

2. Preservation of crime scene

Shortly after the shooting, Superintendent Shelly ordered Inspector Martin Maguire to preserve the scene, which was being treated as a crime scene. Preservation commenced almost ‘‘immediately’’. Within hours of the shooting, the Garda Commissioner announced that an investigation was to be conducted by Chief Superintendent Culligan.

A cordon tape was put in place between a point on the roadway outside Burke’s house and, at the far end of the Carthy house, a further tape was placed across the road. A qualified Scene of Crime Examiner, Sergeant Sean Leydon, who was stationed in Athlone, was contacted at approximately 6:00 p.m. by Detective Garda Campbell and was requested to bring a scene of crime tent to the scene. He arrived at Abbeylara at 7:25 p.m. At that stage he did not meet any senior officer and his contact was mainly with scene of crime preservation personnel. He stated in evidence that he did not receive any instructions from any senior officer when he initially attended at the scene. He observed the deceased lying on his back at an angle with his head close to the grass margin on the right hand side of the road as

one faces towards Abbeylara. John Carthy, he said, was wearing a multicoloured green, white and blue rugby jersey, navy blue nylon jacket, blue wrangler denim jeans and a pair of black laced shoes. A shotgun was noted to be on the road close to the deceased. Sergeant Leydon noted two 9mm. cartridge cases on the road a short distance from the body. There was a cartridge gun belt on the road. Sergeant Leydon proceeded to erect and place the crime scene tent over the body. He then placed plastic sheeting over the shotgun and plastic base plates over the two empty cartridge cases lying on the road.

At approximately 9:00 p.m. Sergeant Leydon met Superintendent Shelly who informed him that personnel from the Technical Bureau in Dublin were on their way to the scene. He had no conversation ‘‘whatsoever’’ with any senior officer regarding what had occurred when John Carthy exited the house. However, he was aware generally from news bulletins and from members in Athlone garda station of what had occurred. His principal duty at the scene was to preserve anything of evidential value. He did not inquire into the circumstances of the fatal shooting as this was a ‘‘unique situation’’ and certain things that had happened, he said, were ‘‘obvious’’. He did not become aware that an inquiry under Chief Superintendent Culligan had been announced until the following Monday, 24^th April, although to him it was obvious that there was going to be an investigation as it was a serious matter; a life had been lost. Sergeant Leydon did not, himself, make any inquiry of the local officers and was aware only of what he had been told by Garda Campbell when he was requested to come to the scene — that John Carthy had been shot by members of the ERU.

At 10:30 p.m. the body was conveyed to the general hospital at Mullingar and Sergeant Leydon travelled in the hearse to the hospital. Prior to leaving the scene Superintendent Shelly directed him to collect ‘‘all of the ERU weapons and ammunition’’. He was told that arrangements had been made for them to be handed in later that night to Mullingar garda station by the members of the ERU who were present at the scene. He stated that he followed these instructions.

Removal of the jeep

The evidence establishes that the ERU jeep (which had been used as the command post, and near which were located local armed members who stated that they feared for their lives when John Carthy proceeded up the roadway) was removed from the area by Detective Garda Carey shortly after the shooting. He was instructed to gather up his equipment and leave the scene by Detective Sergeant Russell. He left in the jeep with Detective Garda Ryan. No instruction was issued to keep the jeep in position. The significance of the position of the jeep was considered by the Tribunal. Senior officers were questioned on its removal and on whether it was considered to be part of the crime scene to be preserved.

Superintendent Shelly stated that he did not consider the jeep to be part of the scene. He did not give any instruction ‘‘one way or the other’’ in relation to the removal of it. After the incident he directed Inspector Maguire to immediately take steps to have the scene preserved. He regarded the scene as the area between the

ESB pole and Farrell’s house. He stated that he issued specific instructions at the scene to Inspector Maguire as to what area was to be preserved. The jeep was in place at this stage. He stated that he had been informed by Sergeant Foley, before the jeep was moved, that no local armed garda had discharged his weapon. Had one of the local gardaı´ taking cover behind the jeep discharged his weapon, then the jeep would have become part of the scene, he contended. He accepted that the jeep was gone before the crime scene examiners from the Technical Bureau arrived. He believed that he had identified the correct area to be cordoned off. It was his view that it was open to the crime scene examiners to widen the search area if they wished, as happened on the Saturday morning when the scene under examination was extended towards Abbeylara.

Superintendent Shelly provided a written explanation as to why he did not consider the jeep to be part of the scene. This was, he said, for a number of reasons:

i. The distance of the jeep from the area where John Carthy was shot was, he said, ‘‘substantial’’;

ii. The distance to the jeep from where the ERU members discharged their shots was substantial;

From his observations and enquiries at the scene there was no evidence to suggest that the jeep had been struck by a shot; and,

iv. No shots were discharged either from or at the jeep. Superintendent Shelly stated in evidence that he did not give instructions in relation to the jeep

‘‘one way or the other’’.

He confirmed that the jeep was in position when he gave the instructions to Inspector Maguire to preserve the scene. He believed that the jeep was gone when he spoke to Sergeant Foley some half an hour later; when he was informed that Sergeant Foley had had his weapon drawn and was about to fire at John Carthy. Even if he had this information while the jeep was still there, he would not have considered it to be part of the scene. He accepted that the jeep was within range of John Carthy’s weapon. He accepted that if there had been shots discharged from that area, it would have been in the scene — but, he said there were no shots fired from there. He felt that the decision he made in this regard, concerning the area of the crime scene to be cordoned off, was correct, and that the evidence was found within that scene.

Chief Superintendent Tansey stated that he gave no directions in relation to the preservation of the scene. He left that task to the scene commander. He had no recollection of being at the scene when the jeep was moved. He believed that he was down at the church when this occurred. He did not believe, however, that the jeep formed part of the crime scene. An innocent explanation for the action in removing the jeep was suggested to him; that someone may have just driven the jeep away in order to convey members of the ERU back to Dublin and was accepted by him as a possibility. Assistant Commissioner Hickey stated that he had no involvement in the preservation of the scene and gave no directions in relation thereto. He would not have directed its preservation as part of the scene.

It will be seen, therefore, that the senior officers maintained that the jeep was not positioned in such a way as to be part of the scene which required to be preserved. It is fortunate that earlier on the morning of the shooting, when the media were brought to the scene, the jeep was photographed in position, thus enabling the Tribunal to make a reasonable estimate of its location when John Carthy emerged onto the roadway. During the course of evidence to the Tribunal, the Chairman expressed surprise that it was not regarded as part of the scene for examination purposes. Officers who were in the vicinity of the command vehicle at the time stated in evidence that they were put in fear of their lives by John Carthy as he advanced towards them holding his gun in what was perceived to be a threatening way. Had it been maintained in position for such examination, and appropriate measurements taken, it would have further facilitated the assessment of the positions of all persons at the scene in relation to each other.

3. The Garda Technical Bureau Ballistic Section

The ballistic section is one of a number of technical units that make up the Garda Technical Bureau. Other sections include the fingerprint, photographic, mapping and criminal records sections. In April, 2000 Detective Superintendent Liam Coen was in overall charge of the Bureau. Detective Inspector Edwin Handcock was the officer in charge of the ballistic section which comprises a detective inspector, three detective sergeants and approximately ten detective gardaı´. The staff included Detective Sergeant Seamus Quinn and Detective Sergeant Patrick Ennis.

Detective Sergeant Seamus Quinn (since retired)

On 20^th April, 2000 Sergeant Quinn was informed by Inspector Handcock that there was a siege in progress in Abbeylara; that shots had been discharged from a particular house and that when the siege was over, irrespective of its outcome, he was to travel to Abbeylara to examine the scene. At 6:30 p.m. he was contacted at home by Inspector Handcock and directed to attend at the Technical Bureau to collect the crime scene van. He there met Detective Sergeant Patrick Ennis and travelled with him to Abbeylara. Inspector Handcock briefed Sergeant Quinn to the effect that John Carthy had been fatally shot by the ERU.

Detective Sergeant Patrick Ennis

Sergeant Ennis was appointed crime scene manager. Evidence to the Tribunal suggests that it is normal practice for a detective sergeant from one of the disciplines to be placed in charge of the crime scene.

Attendance at scene

Sergeant Quinn and Sergeant Ennis arrived at Granard garda station at approximately 8:45 p.m. They were directed to the scene by the station orderly and informed that Superintendent Shelly was there. On arrival, shortly after 9:00 p.m., he (Quinn) met Superintendent Shelly. Moments later Assistant Commissioner Hickey joined them.

Sergeant Quinn was informed that John Carthy had come out of the house; he had walked towards Abbeylara; had been called upon to stop; had failed to do so, and, was shot by the ERU. Sergeant Quinn had not learned of the presence or positioning of local armed gardaı´ at that time. He stated that he was not informed that evening, at the scene, by either Superintendent Shelly or Assistant Commissioner Hickey that local armed gardaı´ had been present. He entered the crime scene at 9:20 p.m. and he remained there until approximately 10:30 p.m. When at the scene he observed the following:

‘‘On the opposite side of the road to the Carthy house and at a point near the end of the garden wall, beside the Burke property, a crime scene tent had been erected. Near the garden wall a plastic sheet covered some object on the road. At a point opposite the Carthy entrance on the road, two pieces of red plastic covered other objects. Having had this scene photographed, I entered the crime scene tent and saw a body covered with a red blanket. I removed this blanket for photographic purposes. The body was that of a male, lying on his back with the feet on the road and the head on the road edge nearest to the ditch. The body was dressed in a jacket, tee-shirt, vest, jeans, underpants, socks and shoes. The belt and fly of the jeans were open and the vest and tee-shirt pushed up revealing a bare mid-area. The left arm was outstretched from the body at an angle of approximately 30 degrees and the right hand was resting on the right hip area. The legs were outstretched and the heels were six inches apart. Eight feet away from the right hand-side of the head of the body lay an empty leather shotgun cartridge belt. I then marked the outline of the body with crayon together with the shotgun cartridge belt. Beneath the plastic sheet outside of the tentI found a shotgun with its stock nearest to the garden wall and its muzzle facing the road. The stock of the weapon was eight feet nine inches from the nearest right-hand pier and twenty-two feet from the nearest left-hand pier of the wall. I lifted the weapon and noted that its safety feature was in the off position. I broke open the breech of the weapon and found a live 12-gauge shotgun cartridge in the left barrel. The right barrel was empty. I handed both items over to Detective Garda Colette Murray, fingerprints section. In an area on the roadway, opposite the entrance to the Carthy house, under a plastic cover I found a spent 9mm. cartridge case. This item was fifteen feet five inches from the right-hand pier. A second 9mm. spent cartridge case lay beneath the plastic cover, some six feet further onto the road. These items were photographed in situ and their locations were encircled in crayon.... At 10:20 p.m. a hearse arrived at the scene and I assisted in the placing of the body in a coffin. The hearse left the scene for Mullingar Hospital at 10:30 p.m. and I immediately rang Professor Harbison and informed him of its departure. We also agreed that the post-mortem examination would begin at approximately 9:30 a.m. on the following morning. At 10:50 p.m. I finished work at the scene and left for Longford.’’

Search of the scene — cartridges

A combination of live and discharged shotgun cartridges were found. Four spent 9mm. cartridges were also discovered.

Spent cartridges discovered at scene

Sergeant Quinn gave evidence of finding 30 spent shotgun cartridge cases in or about the scene. 14 spent shotgun cartridge cases were found in the kitchen, three in the corridor, two in the lower corridor, two in an empty room off the lower corridor, six scattered outside the hall door in the grass and three outside the kitchen window in the grass. Following his examination of the 30 spent cartridge cases Sergeant Quinn concluded that 1 7 had been discharged from the left barrel and 13 discharged from the right barrel.

Live cartridges found

Sergeant Quinn found a live 12-gauge shotgun Eley cartridge in the left barrel of John Carthy’s shotgun when he examined it at the scene on 20^th April, 2000. One live shotgun cartridge was found in the road ditch opposite the Carthy house. This was a Fiocchi 12-gauge shotgun cartridge size 8.5. This cartridge was found to be in good condition. Seven other live shotgun cartridges were found in the house, in the bottom of a wardrobe in the corridor. They appeared to have been ‘‘put aside because of their condition’’. This evidence suggests that all cartridges in good condition had been discharged or were in the breech of the barrels when John Carthy left his house, i.e., he had almost exhausted his supply of usable ammunition.

Examination of John Carthy’s weapon

Sergeant Quinn examined the shotgun and gave evidence in relation to the capacity and properties of the weapon. On examination the weapon was in the closed position with a live cartridge in the left-hand barrel. The safety catch was off. He illustrated, in the witness box, that in attempting to pull the trigger with the safety catch on, he met with resistance. However, when the safety catch was pushed forward the triggers were free to move. Breaking open the barrel engaged the lugs on the underside; and on closing, the lugs pushed the safety feature into position. The weapon was approximately 15 years old but was in good condition, and was well maintained. The trigger pressures were within normal parameters for this type of weapon at 4.5 pounds for the forward trigger (operates the right barrel) and 6 pounds for the rear trigger (operates the left barrel). Sling rings were fitted at the time but it did not have a sling. He confirmed that the gun had no defect. The shotgun, he stated, did not and would not discharge accidentally by dropping it. Discharge of the weapon required the triggers to be used. The safety catch was in good condition. While a Baikal shotgun may have an automatic ejector, this was not a feature of John Carthy’s weapon. The cartridges in this weapon presented themselves, rather than being ejected.

4. Examination of weapons

Request to acquire weapons — Detective Sergeant Quinn’s initial evidence

Sergeant Quinn gave evidence to the Tribunal on two occasions. In his initial evidence he was questioned about his request to Sergeant Leydon to acquire all garda firearms at the scene. He confirmed that he was aware that all of the weapons he received belonged to members of the ERU. He also confirmed that there was no

discussion with Sergeant Leydon about seeking weapons belonging to the local armed gardaı´. He stated that he did not consider looking at the other weapons because he was aware of the circumstances of the shooting and from where the shots had come. Sergeant Quinn was asked for clarification of his use of the words ‘‘at the scene’’ in the context of the request for the collection of all garda weapons and he responded: ‘‘within the actual scene itself, within the inner cordon, outside the Carthy home’’. His evidence on recall, considered below, is noted to be inconsistent with this evidence.

Collection of weapons at Mullingar garda station by Sergeant Leydon

At approximately 12:20 a.m. on 21^st April, Sergeant Leydon went directly from the hospital to Mullingar garda station where he met the members of the ERU who had been present at the scene and took possession of 13 firearms and ammunition. He recorded what he had received. Sergeant Leydon placed all of the weapons and ammunition in the safe in the garda station. The ammunition was packed into individual bags along with the weapon to which they related, each gun being separately packaged with its ammunition prior to being locked in the safe. He handed all firearms and ammunition collected by him to Sergeant Quinn on Sunday night 23^rd April at Mullingar garda station when the Bureau staff had finished at the scene and were heading back to headquarters. Sergeant Leydon stated that he could not recollect having any conversation with Sergeant Quinn at that time. Nothing was said by Sergeant Quinn regarding a change of instructions to have ERU weapons only examined.

Examination of the ERU weapons

The weapons were brought back to the Garda Technical Bureau and examined by Sergeant Quinn over the course of the next five days. Two were found to have been discharged. Out of six magazines from the Uzi sub-machine gun handed over by Garda McCabe only five had a full complement of bullets. One was missing two rounds. He also found burned propellant powder in the barrel which is an indicator of discharge. He concluded that two bullets had been fired from the gun. On examination of Sergeant Jackson’s Sig Sauer pistol, burnt propellant powder was in the barrel, some in the breech and in or about the firing pin.

Examination of scene

Sergeant Quinn confirmed that he had been at the scene for two days and that extensive searches were carried out. Only four spent 9mm. cartridge cases were found, and these had been discovered within a short time of the incident, and plastic cones had been placed over them. Having taken photographs of the spent cartridges on the road, he, Sergeant Quinn, took possession of them. He contended that he would have expected a specially trained search team to have found any other spent cartridge cases. It was suggested to him that the evidence was dependent upon no one else removing a cartridge case; to which he replied:

‘‘So now we are reduced to members of the Garda Sı´ocha´na who may or may not have purposefully removed a cartridge case from a crime scene. I have never in 36 years come across it, Chairman, never. I am not saying that it cannot

happen, Chairman, but it should not if it did. I have never come across it in 36 years andI would be disgusted and amazed if it did happen’’.

Initial search area

The search team commenced a search of the area on Friday afternoon, 21^st April, when Sergeant Quinn returned to the scene following the post-mortem examination. Both Sergeant Ennis and Sergeant Quinn issued instructions to the sergeant in charge of the search team as to how the search was to be carried out. The initial search was conducted in the area that had been cordoned off the previous evening. Sergeant Quinn showed the sergeant in charge the type of spent cartridges or wads that he should be seeking. The search commenced on the road and thereafter the hedges were searched by way of ‘‘fingertip search’’. This covered an area described by him ‘‘as the full extent of the inner cordon’’. Other than the four spent 9mm. shells and the live cartridge discarded by John Carthy when he opened his shotgun on the road, no bullets were found. On completion of searching the inner cordon area, the search area was extended a distance of 268 feet (to the brow of the hill) in the Abbeylara direction.

Widening of search area

The decision to widen the search area was taken by Sergeant Quinn on Saturday morning, 22^nd April. The purpose of the wider search was to attempt to find the bullets which had been discharged at John Carthy, as none had been discovered on post-mortem examination. No bullets were found in this area. Sergeant Quinn stated that only garda personnel were within the area between the outer cordon at the church and the Carthy residence during this period.

Non-examination of local weapons — Detective Sergeant Quinn’s further evidence

The Tribunal requested a further statement from Sergeant Quinn dealing with a number of issues concerning the non-examination of local weapons. He made a second statement in response as follows:

‘‘(a) I attended the post-mortem examination and this examination proved that all shots, which struck the deceased were discharged from his rear. There were, however, two non-ER U members on the Springtown [Ballywillin] side of this shooting scene. Had either of these members discharged a shot, they would have had, in my opinion, have had to shoot through the ERU members to hit the deceased. In my opinion there was no question of this as it is against all firearms training and firearms drill.

(b) I received no instructions from a more senior officer as to what weapons I should/not examine.

(c) I was not aware whether the incident was likely to lead to an investigation.

(d) I never delegated any of my duties at the scene to another officer except to show a search team the type of bullet and cartridge which might be found during the search’’.

In his further evidence to the Tribunal he stated that he had no discussion with Sergeant Leydon about requests that he, Sergeant Leydon, may have received from more senior officers. He said that he had a general conversation with Sergeant Leydon at the scene on the night of 20^th April and that ‘‘the most important thingI asked him to do was to acquire all ERU weapons’’. It was noted, however, that in his initial statement to the Tribunal he recounted that he requested Sergeant Leydon to acquire all garda firearms that had been at the scene. His statement read as follows:

‘‘Within the scene I spoke with Sergeant Sean Leydon who had erected the crime scene tent and covered other vital evidence which he had encountered. I asked Sergeant Leydon to acquire for me all garda firearms, which had been at the scene since the incident commenced. He undertook this task’’.

It was put to him, and he agreed, that this statement indicated that he had requested that all weapons be collected. He was therefore asked how this general request was reduced to a more specific one regarding the acquisition of ERU weapons. He stated:

‘‘It was reduced to ERU weapons before I actually took the ERU weapons back to the ballistics section in the Technical Bureau’’.

He stated that the initial request in respect of all weapons was reduced to ERU weapons only because of ‘‘information from the post-mortem and information I had received and gleaned throughout the examination of the scene’’. He stated that he communicated his decision to narrow the weapons for inspection to Sergeant Leydon on Sunday night, 23^rd April at Mullingar.

Sergeant Quinn was asked whether following two days of physical examination of the crime scene he had found any objective further evidence which led him to reduce his request for weapons that he wished to examine. He responded:

‘‘Apart from the post-mortem results which indicated to me that the shots came from behind Mr. Carthy and, to my mind, could only have been fired by the ERU officers. This is what made me reduce it from all weapons to ERU weapons only’’.

He discounted the possibility of a shot being fired towards John Carthy which missed him:

‘‘... for the simple reason that none of the searches that were carried out discovered any spent cartridge cases other than the four that were on the roadway. If any member of An Garda Sı´ocha´na discharges his firearm, he is obliged (a) to report it and (b) that firearm must be handed in for examination by the ballistics section of the Garda Technical Bureau. . .’’.

He further stated that he first became aware of the involvement of armed local gardaı´ on returning to the crime scene following the post-mortem on the afternoon of 21^st April, when he observed the garda mapper at work mapping the positions of the local gardaı´ during the incident. There were, he stated, conferences each evening either with Superintendent Shelly or Assistant Commissioner Hickey, as he had to report ‘‘whatI uncovered during the day’’.

He stated that if he was aware of the presence of armed local gardaı´ during the course of the incident he would have considered ensuring that those weapons were collected for examination had they been discharged. On arrival at the scene he was unaware that Chief Superintendent Culligan was appointed to investigate the shooting. However, he stated that it had ‘‘crossed his mind’’ that the shooting was likely to give rise to an independent investigation. On Sunday, 23^rd April Sergeant Quinn met Chief Superintendent Culligan at the scene and had a discussion with him about his general findings. He knew and had met him around the country at different scenes. He was not aware, however, that Chief Superintendent Culligan was conducting an investigation at that time; this had not occurred to him then. He subsequently agreed that Chief Superintendent Culligan was taking an active role in ‘‘some shape or form’’. He said that he only became aware of Chief Superintendent Culligan’s appointment after he had returned to the Technical Bureau, probably on the following Tuesday, 25^th April, when he was in the initial stages of examining the weapons. In later evidence, however, he stated that he was aware before he went back to Dublin, on Sunday, 23^rd April. Sergeant Quinn was asked whether in the light of this new knowledge concerning the investigation whether he had reconsidered his decision in relation to the examination of the weapons so as to exclude all the other officers who were at the scene. He said that he had made a decision and ‘‘stuck by it’’.

He was questioned on whether he recognised that a crossfire situation may have arisen and for that reason it was important to rule out the possibility that local guns had been fired at the scene. He stated that he had not considered the issue of crossfire at that stage. He was asked why the obvious step of ruling out the local guns through examination, had not been taken. He replied:

‘‘Chairman, certainlyI do agree and hindsight is a wonderful thing butI had no report of any other cartridge being found during all of the searches that were carried out, which, to me, would have ruled out crossfire, (A). (B), no other armed garda reported that he had fired his weapon and no other armed garda had left in his weapon for examination, having fired it’’.

It was not until his attendance at the Tribunal that he became aware that one of the local gardaı´ was within ‘‘an ace’’ of discharging his weapon. He stated that his understanding was that as long as John Carthy remained within the inner cordon that no one but the ERU had ‘‘permission’’ to fire. However, once he left the inner cordon then armed gardaı´ outside could take whatever action they deemed appropriate. No one had told him that, but that is what he understood.

Sergeant Quinn accepted, ‘‘to an extent’’ that in the examination of weapons which may potentially have been used at the scene, the process of exclusion was as important as the process of inclusion. On examination of the ERU weapons (13 in all), he had discovered that two of them had been discharged and at the time of that examination, he knew that John Carthy had been struck four times. It was suggested to him that given the fact that there were 13 weapons and four wounds, that it was important to exclude ERU weapons, because they were at the scene. He was therefore questioned as to whether, had he known that local gardaı´were at the scene

and had their weapons at the ready, he would have requested that such weapons be submitted for examination? ‘‘Not necessarily’’, he stated, because ‘‘to the best of my knowledge no other weapons had been discharged, only ERU weapons’’. He believed that if any other weapon had been discharged it would have been handed in, as a member who so discharges his weapon is obliged to do. It was suggested to him that in so answering, he was in part relying on officers complying with their obligations under the Garda Code. This he said, was only a second consideration; the first being the search team missing a cartridge case.

Ultimately, he accepted that he ‘‘possibly’’ would have requested that the weapons of the local officers be brought forward for examination, had he known that ‘‘there were members present who feared for their own lives and had their weapons at the ready’’. Sergeant Quinn said that he became aware on Sunday, 23^rd April, following the incident that there were armed local officers present at the scene at the time of the shooting. However, he said that whereas he knew that they were present he also heard that none of their guns had been discharged. He was asked whether nevertheless, he should have requested their weapons to be delivered for examination, if he had not heard that no local gun had been discharged. He stated:

‘‘. . . if a firearm, and I am going to repeat this for the umpteenth time, if a firearm is discharged it must be reported, it must be reported. It must be handed in for examination, and I, for 26 years, depended on both of those things happening. I honestly can’t put it any further.’’

He had no suspicion, or reason to believe that a shot had been fired by one of the gardaı´.

Request to examine weapons — Sergeant Leydon’s involvement

When Sergeant Quinn was requested to clarify whether he would have given consideration to having local armed officers’ weapons taken in for examination had he realised that they were present at the command post with drawn or cocked weapons, he replied:

‘‘I may or may not have done. Certainly, my initial instructions to Sergeant Leydon were to get all weapons. .. .I discounted all weapons now and only included all ERU weapons and that is allI examined’’.

He said that he was unaware of Sergeant Leydon having received instructions directly from Superintendent Shelly to take possession of all firearms and ammunition of the ERU. His decision to narrow the request in relation to the weapons to be examined was, he said, taken on Sunday, 23^rd April, before he took the weapons away from Mullingar station to the Technical Bureau. He stated that he discussed this decision to ‘‘some degree’’ with Sergeant Ennis but confirmed, however, that it was he who had the authority to make this decision and not Sergeant Ennis. Sergeant Leydon, however, stated that he received his instructions from Superintendent Shelly. This instruction was to gather in all ERU weapons.

Sergeant Quinn also stated that his decision to reduce the number of weapons to be examined was made following the post-mortem examination and a full

examination of the scene by the search team. At some stage, after the search team had finished, he said, ‘‘I would have told Sergeant Leydon that I only required the ERU weapons’’. In subsequent evidence he confirmed that this was on Sunday night, 23^rd April, in Mullingar. Sergeant Leydon stated, however, that when he handed over the weapons to Sergeant Quinn on Sunday, 23^rd April, he did not have any conversation with him.

Conflict of instructions?

Sergeant Quinn stated that if, on the night of 20^th April, Sergeant Leydon had only taken possession of weapons possessed by the ERU that that would have been contrary to the instructions that he had given him. He further agreed that had instructions been given to Sergeant Leydon by another officer only to collect the ERU weapons and ammunition, that that also would have been contrary to his instruction to Sergeant Leydon.

Sergeant Leydon had no recollection of receiving an instruction from Sergeant Quinn that he was to acquire ‘‘all garda firearms which had been at the scene since the incident commenced’’. He would have regarded this as a ‘‘crucial’’ instruction and one that he was likely to remember. He believed that it was on Friday, 21^st April that he became aware that local armed officers had been present during the course of the incident:

‘‘There was no conversation, it was just that I handed over the thirteen weapons and the ammunition and that was it.’’

Superintendent Shelly described Sergeant Leydon as a careful, experienced scene of crime examiner who would remember and follow instructions.

Detective Sergeant Quinn’s reasoning for narrowing of request

Sergeant Quinn explained that he had originally asked for all weapons to be collected because:

‘‘I was not at the post-mortem examination at that stage. My instructions to Sergeant Leydon was at the scene on the first night at about 9.20/9.30. I knew ERU weapons were discharged at that stage. I didn’t know if any local garda weapons were discharged but having been to the post-mortem and not having any reports from local gardaı´of them having discharged their weapons or there being no reports into the local superintendent of any local gardaı´ having discharged their weapons I took it upon myself to only take ERU weapons. I mean, the search team had also completed the search by Sunday and nothing was found’’ .

He was then asked whether he now felt he ought to have looked at the weapons of the local gardaı´, if for no other reason than that it was in their interests. He responded that he believed that he took the right decision at the scene and he was going to stick by that. He disagreed when it was put to him that an examination of local weapons was something that should have been done. There was, he said, no guideline or instruction in the manual on criminal techniques, requiring that all

weapons be taken in. You must, he said, take evidence ‘‘as a whole’’. No one, he said, heard any more than four shots. He also depended on the honesty of those at the scene that they had not discharged their weapons. He accepted, however, that a way of corroborating, objectively, the evidence of local gardaı´, was to examine the weapons — but that was not the position he took ‘‘having taken the evidence as a whole’’.

He accepted that a local garda ‘‘might not keep his cool for as long as a trained officer’’ and that ‘‘he might discharge his weapon where he shouldn’t’’. He also accepted that this was the sort of criticism that the media might pick up on. However, he stated that it had not entered his mind to protect the local gardaı´ from that type of criticism. Sergeant Quinn again confirmed that the decision to narrow down the weapons which he proposed to examine was taken after he became aware that local armed officers had been present at the scene. He reiterated that, in making the decision, he considered the results of the search, the post-mortem, the obligations on members of the Garda Sı´ocha´na to report any discharge of their firearms to a superior officer and to hand in their weapons. Finally, he was asked whether in the context of an internal garda investigation he thought it sufficient to rely on the garda regulations and the obligations placed on members of the Garda Sı´ocha´na and their compliance with those obligations and regulations rather than objectively ascertaining whether or not the weapons had been discharged. Sergeant Quinn replied, ‘‘I took the decision on whatI have outlined’’.

5. Detective Sergeant Patrick Ennis

Sergeant Ennis has been attached to the ballistics section, Garda Technical Bureau, for 30 years. At approximately 6:00 p.m. on 20^th April, 2000, he was instructed by Inspector Handcock to attend as crime scene manager at Abbeylara. He arrived at the scene at 9:05 p.m. and was accompanied by Sergeant Quinn. In attendance at that time were Assistant Commissioner Hickey, Chief Superintendent Tansey, Superintendent Shelly and Garda Joseph Fayne.

He observed the position of John Carthy’s body on the ground and he learned from Superintendent Shelly that the subject had emerged from his house, armed with a shotgun and that two members of the ERU had discharged shots at him. He was also told that John Carthy had broken open a weapon and thrown something into a ditch. He was not informed at that time that there were other local armed members at the scene. He believed that he was informed of the local armed officers’ presence on either 22^nd or 23^rd April.

Sergeant Ennis was not given any instructions regarding what weapons should be examined. He stated that Superintendent Shelly did not interfere with the way they were to conduct their examination. Communication with Superintendent Shelly was, he stated, to receive information rather than to obtain instructions. While they were told that ERU weapons were available for examination, Sergeant Ennis noted that:

‘‘we weren’t instructed to examine them ... I just want to clear that up. It would be normal procedure for us to examine firearms that had been discharged’’.

He would, however, have expected Superintendent Shelly to give him all information relevant to their work. Would that have included being informed of the number of armed officers at the scene and where they were at the time of the shooting? He replied:

‘‘Possibly from the point of view of recording exactly where they were on a map, for instance, and when we have a mapper there, it may have been advisable or required that the exact location of other armed gardaı´ would be indicated to the mapper so he could place their position or proper position on a map. That may be the case’’.

Sergeant Ennis confirmed that four 9mm. cartridge cases were found at the scene. He understood that the ERU weapons were being handed in for examination and that Superintendent Shelly and Sergeant Quinn had made the necessary arrangements. He subsequently called with Sergeant Quinn to see Superintendent Shelly in his office in Mullingar, on Sunday, 23^rd April. The firearms were handed over to them there.

He agreed that he had been informed on 20^th April by Superintendent Shelly that two members of the ERU had discharged their weapons. He did not recall being told about local armed officers being in attendance. He was subsequently informed, ‘‘on the following evening or the day after’’, that a total of four shots had been discharged and he thought that it was then that he learned that local armed officers had been in attendance when John Carthy was shot. Superintendent Shelly, while not questioning Sergeant Ennis’s evidence, thought that he had mentioned to him that local officers were present.

Sergeant Ennis observed that there is ‘‘really no scientific way that one can determine’’ whether a firearm has been recently discharged. One can see fouling from burned propellant, there may be a strong odour or there may be a build up of carbon or discolouration on the firearm which would indicate that it had recently been discharged; but if one wanted to conceal that fact, then the weapon could simply be cleaned. Practically all traces are removed when the gun is cleaned, he observed. He accepted that in certain cases, ‘‘maybe not in this particular case’’, it may be necessary to prove that certain weapons had not been fired. Sergeant Ennis said that:

‘‘... from the point of view of all the weapons from the ERU that Detective Garda Quinn received it would be his duty to look at those weapons, examine them, determine which of them, if any, had been discharged and to link them with any evidence at the scene. In other words, the discharged cartridge cases’’.

Sergeant Ennis stated that he did not expect that all of the weapons at the scene would be taken in for examination ‘‘for a number of reasons’’. These were, he said:

‘‘One, being whatI was told, that the only firearms that were discharged were by members of the ERU, two members. Two, the number of discharged cartridge cases which were found at the scene agreed with the number of rounds which I was told were discharged. Three, the number of bullets which caused the injury and subsequent death of Mr. Carthy were named by Professor

Harbison as four, so that tallied with everything thatI was told and I saw at the scene’’.

Whether the weapons in the possession of local armed gardaı´ at the scene should be examined or not was, he thought, a matter for ‘‘others’’. He agreed with the Chairman’s question that it was not for him to decide but to examine guns presented to him.

It should also be noted that Sergeant Ennis had no recollection of a conversation with Sergeant Quinn in relation to the narrowing down of the request for the gathering of weapons. He stated that while crossfire was something which had crossed his mind, in so far as the ERU members were concerned, he was told that nobody else had discharged their weapons and he believed that ‘‘a certain amount of trust has to arise in relation to this’’ and it did not occur to him that a shot might have been fired by a local officer. He contended that he had no suspicion or reason to conclude that a local gun may have been discharged.

6. The evidence of Superintendent Shelly

Superintendent Shelly stated that he was informed by Sergeant Russell that two members of the ERU, Sergeant Jackson and Garda McCabe, had discharged a number of shots at John Carthy. He also stated that he spoke to Sergeant Foley and inquired from him ‘‘what is the position of our people’’. Sergeant Foley then went and made inquiries from the local gardaı´ and reported back to Superintendent Shelly that none of the local armed officers had fired any shots. Superintendent Shelly stated in evidence that he received this information within minutes of the shooting. Within approximately half an hour to one hour later he learned from Sergeant Foley that they were very much afraid for their own safety, that their lives had been in danger and that they ‘‘feared John Carthy ’’. Sergeant Foley informed Superintendent Shelly that he had his weapon drawn and ‘‘conveyed the message’’ that he feared he might have to shoot John Carthy.

While Superintendent Shelly did not see it as his role or function to commence an investigation, and he was not attempting to interfere with such investigation, he gave instructions so as to ensure that the best evidence was preserved. Superintendent Shelly did not direct the examination of firearms and ammunition in the possession of local officers at the scene. He explained that he took this decision because he was satisfied from his inquiries, made at the scene, that only two ERU guns had been discharged and that no firearms belonging to local armed gardaı´ had been discharged.

Why then were all ERU weapons examined for the purpose of elimination, whereas none of the local weapons had been so examined? The position of the local armed gardaı´ was different from that of the members of the ERU, he contended, because of a number of factors:

i. their distance from John Carthy when he was fatally injured;

ii. the fact that the exit plan tasked the ERU to deal with John Carthy and the specific tasks assigned to local armed gardaı´ as being back up to ERU members and not having a direct and immediate role with John Carthy in the uncontrolled exit;

the information from Sergeant Foley that no local armed gardaı´ discharged their weapons; and,

iv. his own personal and immediate observations at the scene.

(As to the first point made by Superintendent Shelly i.e., the distances between local armed gardaı´ and Mr. Carthy when he was shot; it is wrong. The local officers in the vicinity of the ESB pole at the boundary between the Carthy and Burke properties were within approximately ten feet of where the subject was when fatally shot and their evidence indicates that they feared for their lives.)

On further questioning he accepted that John Carthy was within the range of the weapons of the local gardaı´. He thought that the fact that the ERU were closer to John Carthy was ‘‘an issue’’. It was suggested to him that in the context of such distances, in this case, that explanation was not relevant and he accepted that it might not be a relevant reason. With regard to the second explanation it was suggested to him, and he accepted, that there was an assumption underlying this reason that the exit plan would work; and further that it was assumed that under no circumstances would local gardaı´ discharge their weapons. He agreed that he could not state that, because it was an individual decision whether to discharge one’s weapon. He accepted that even though in a back-up role, the fact that the local gardaı´ were armed meant that it was felt that they should be armed and that therefore there was a possibility that they might discharge their weapons. With regard to the fourth reason, he agreed that he had not seen what occurred. He was, he stated, referring to his ‘‘presence’’ and that from the first information at the scene there was never a question or dispute about who had discharged their firearms. He stated:

‘‘I think it incredible that something like that could happen and that I wouldn’t know about it or be told about it’’.

He had, he stated, no reason to doubt or disbelieve anything he had been told. The main reason for examination of ERU weapons only was that he was satisfied that two ERU officers had discharged their weapons. That was something, he said, that was established almost immediately. He had the names of the individuals who discharged their weapons and he had, he contended, made ‘‘every inquiry possible’’. Why then did he feel that it was necessary to examine the other ERU weapons? This was, he said, due to the fact that they were in the same group and while he accepted what he was told, they were close by when John Carthy was shot. He disagreed that it was inconsistent to have adopted a different attitude as far as the local weapons were concerned. He stated that there was no deception and that it was ‘‘beyond doubt’’ that none of the local guns were fired. He thought that the Assistant Commissioner was as satisfied on this issue as he was. He further accepted that examination of the ERU weapons would provide independent corroborative evidence of what they had said in relation to the weapons discharged. It was suggested to him that in this context it was not only a desirable, but an essential step

to ensure that necessary corroboration was forthcoming. He replied that it was his wish that everything that could be done would take place but for reasons stated (his own knowledge and what he had been told) a decision was made not to forensically examine the local weapons. There was no attempt not to have all the facts brought out, he said, but he made a judgement call and he was satisfied with it.

On that evening a meeting was arranged at Granard garda station, at which garda welfare officers addressed most gardaı´ who had been present at the scene. Assistant Commissioner Hickey, who was in attendance, informed all present that the Garda Commissioner had directed an investigation and that that investigation was to be carried out by Chief Superintendent Culligan. At that meeting Assistant Commissioner Hickey alluded to the fact that the ERU weapons would be taken in for examination. Superintendent Shelly did not speak to any of the other senior officers that night about examination of the local officers’ firearms but he instructed Sergeant Leydon to take possession of all the ERU firearms and ammunition and have them retained for ballistic examination at the Garda Technical Bureau.

Superintendent Shelly stated that he gave no instructions to Sergeant Quinn as to what weapons were to be examined. He had spoken to Sergeant Quinn and Sergeant Ennis at the scene at Abbeylara when they arrived from Dublin and had briefed them on what had occurred. He did not have any discussion with Sergeant Quinn, he said, regarding the examination of all local weapons. He stated that he told him that two ERU officers had discharged their firearms as a result of which John Carthy had been fatally injured. Superintendent Shelly gave his instruction to Sergeant Leydon sometime after 10:00 p.m. on the night of 20^th April after Assistant Commissioner Hickey had spoken at the meeting. He stated that he relayed the Assistant Commissioner’s wish that the ERU weapons be retained for examination. He knew nothing of a broader request or a decision to reduce the number of weapons to be examined, as suggested by Sergeant Quinn, and he also confirmed that he gave the instructions as recounted in Sergeant Leydon’s evidence. The first that he had heard of Sergeant Quinn’s decision to reduce the number of weapons for examination was when he, Sergeant Quinn, gave evidence to the Tribunal.

7. The evidence of Chief Superintendent Tansey

Chief Superintendent Tansey learned directly from Sergeant Jackson that he (Sergeant Jackson) had fired two shots from his pistol and he also learned from Garda McCabe that he fired two shots from his Uzi sub machine-gun. A group of ERU and local gardaı´ were present at the scene and Chief Superintendent Tansey asked the question ‘‘did any one else fire a shot’’ and in response people in the group shook their heads. Chief Superintendent Tansey gave no consideration to directing that local guns and ammunition should be ballistically examined, in view of the fact that only two ERU weapons were discharged. In response to a question as to whether he appreciated the significance of corroborative ballistic evidence if no local gun had been fired, he stated, ‘‘I did not foresee the necessity to prove the negative.’’

Chief Superintendent Tansey was instructed by Assistant Commissioner Hickey to convene a meeting in Granard garda station on the evening of 20^th April. By the time that he returned to Granard station that evening, Assistant Commissioner Hickey had made the decision that all weapons of the ERU should be collected for ballistic examination.

Chief Superintendent Tansey stated in evidence, that all of the senior officers were satisfied that no local guns had been fired and this was borne out by the actual examination of the scene and the results of the post-mortem. It should be noted however that Professor Harbison had recognised the possibility of a fifth bullet at the post-mortem. According to the Chief Superintendent the practice in previous cases where garda guns had been discharged was that only the guns of the members of the particular unit that discharged their guns were taken for ballistic examination.

Chief Superintendent Tansey had no direct conversation with Sergeant Quinn or Sergeant Ennis on 20^th April at the aftermath of the incident, but was present when Superintendent Shelly was giving an outline of the incident to both officers. He stated that he would have been ‘‘shocked if there was any evidence to suggest that any local member discharged their firearm’’.

8. Evidence of Assistant Commissioner Hickey

Assistant Commissioner Hickey learned of what happened from Chief Superintendent Tansey. He received a phone call shortly after the shooting. He went to Granard garda station first and then went to the scene. He was told that four shots had been discharged; two by Sergeant Jackson and two by Garda McCabe. He was given this information, at Granard garda station, by Chief Superintendent Tansey and possibly also by Superintendent Shelly. He also met the ERU officers. He informed them that there was to be an investigation which would be conducted by Chief Superintendent Culligan. He told the members of the ERU to hand over their firearms to Sergeant Leydon whom he knew had been appointed as exhibits officer. Assistant Commissioner Hickey said in evidence that he could not see any possible reason for the local guns to be examined. He did not, he said, inform Superintendent Shelly ‘‘not’’ to examine the local weapons, but his ‘‘frame of mind’’ was that it was not necessary to examine the local guns.

Assistant Commissioner Hickey relayed his wishes to Superintendent Shelly. He observed that it was open to the ballistic officers to extend the examination if they so wished and that he would not have interfered with such a decision. In view of his belief that local firearms were not discharged he did not see any logical reason to consider retaining those weapons on that evening. He was relying on information from others and had no first-hand knowledge. He confirmed that he met and exchanged pleasantries with Sergeant Quinn and Sergeant Ennis but did not engage in any discussion with them and did not give them any specific instructions. The Assistant Commissioner had no recollection of speaking to Sergeant Leydon after the incident.

9. Cover-up?

Was there a cover-up in relation to the failure to have local weapons examined? Senior officers were questioned in this regard.

During the course of his evidence the following questions were put to Superintendent Shelly:

‘‘Q. Chairman: You see, I am not suggesting that you were part of some sort of cover-up in this regard, I have formed no view in this matter until I have heard all of the evidence; but it does occur to me that some senior officer perhaps might say when, in the ordinary course of events, all guns were going to be examined. (In that regard we must bear in mind Sergeant Quinn’s evidence; he had a change of mind about this, strangely enough.) That some senior officer might say, ‘well now, look, maybe a local gun was fired that we don’t know about and the firer put his cartridge in his pocket. If we have them examined and this emerges then we are in dire straits if it does. Better accept what they have told you and we won’t have their guns examined at all’. Could anything of that sort have emerged?

A. It doesn’t bear thinking about, Chairman, that... (interjection). Q. Oh it does.

A. To me, it would be a very serious matter. Even thinking like that, I know the point you are making, but that never arose, there was never a question of anything like that. As tragic as it was, from the very minute it happened, moment it happened, I was satisfied what had happened, exactly what had happened and I know that all of the people there, the two people who were senior to me and my other colleagues, were satisfied that that is what happened. Those are the facts, Chairman, I cannot honestly put it any further; but the possibility of somebody interfering with evidence at that scene or that they may have had, Chairman, didn’t arise.

Q. Chairman: Was there any practical difficulty in the matter of having the local guns examined if you had decided that that was the proper course to take?

A. Absolutely not, Chairman. Q. Chairman: Absolutely not, Q. I would have thought so.

A. We gave the reasons as to why we felt that we had the issue more than covered.’’

Chief Superintendent Tansey was questioned on whether it would have been of great importance to rule out a ‘‘blue on blue’’ situation and that no local gun had been fired, he reiterated that he ‘‘honestly did not see the necessity to actually prove a negative on that evening’’. No one present that evening, he said, would have had the

presence of mind to pick up a shell from the ground and conceal the fact that they had discharged a weapon. Further, he contended, no local man was on his own and had he fired he would have been seen. If a ‘‘cover-up’’ happened, he stated that he would know it:

‘‘If you are suggesting that I and other members like me covered it up, then the answer is emphatically no, I wouldn’t be a party to something like that’’.

He stated that the decision to examine the ERU weapons was based on ‘‘the evidence and on the situation that we found that evening’’. He stated that as far as he was concerned, there was not a scrap of evidence to suggest that a local gun was actually discharged on that evening.

Assistant Commissioner Hickey stated that:

‘‘My whole experience and my ethos and everything we are trained to do would militate against that [i.e., a cover up]. I have no experience or suspicion of any case that I ever knew of or was involved in where some officer discharged a shot and didn’t own up straight away. As I said already, I find it hard to contemplate anything more serious in all the circumstances’’.

The possibility of the covering up of a ‘‘blue on blue’’ shooting, which might be regarded as explaining why the second ERU officer fired in the way he did; i.e., that he was concerned for his own safety from other officers discharging their weapons rather than from the threat posed by John Carthy, was raised with Assistant Commissioner Hickey. He was questioned on the possibility of a motivation being to avoid evidence, not that he had in fact discharged his weapon, but that a ‘‘blue on blue’’ situation had occurred and therefore indicative of an error on the part of the gardaı´. Assistant Commissioner Hickey stated that he could not see any possible rationale for such a cover-up:

‘‘I couldn’t visualise a conspiracy of those gigantic proportions being hatched there and then and being pursued, and the dangers of making a situation that was bad a thousand times worse would be too appalling to contemplate’’.

Anyone who did that, he said, would be bordering on lunacy. Whoever embarked on that road, he said, would not be in a position to predict, down the line, what might happen in relation to forensic evidence or ‘‘other people or other witnesses’’, he contended. The Chairman further questioned as follows:

Q. ‘‘I am not suggesting that you might have been aware that a shot had been fired and that there should be a cover-up to hide that fact, I am not suggesting that. WhatI am suggesting is might it have been regarded as a safety precaution lest perhaps any local gun had been fired and best not to examine their guns at all?

A. That never arose... I cannot overemphasize enough that Chief Tansey and myself and various others, we have disciplined people, we have initiated inquiries, we have run inquiries where some of our own people have gone to prison, in some cases without complaint’’.

10. Firearms records and duty reports

The Garda Code makes provision for maintaining records in relation to firearms and ammunition issued and returned to officers on duty.

Chapter 25.37 — Issue of firearms and ammunition for official use

This imposes an obligation on an issuing member to make a record of the transaction in a book kept for that purpose. Particulars of the issue and return of the weapons and the condition of the weapon is to be noted on its return. It also prohibits the passing of firearms from one member to another at a post and imposes an obligation on the member to whom the firearm was issued to return it to the station officer of the station from which it issued.

Chapter 25.39 — Inspection of firearms and ammunition

This imposes an obligation on district officers to carry out periodic inspections, at least quarterly, of all weapons and ammunition held by members or in stations within their district. Detective sergeants also are obliged to inspect firearms, ammunition and equipment, of every member under their charge once weekly and a record of all examinations should be made and produced for inspection.

Chapter 25.42 — Use of firearms by members on duty

This imposes an obligation on members to make a report whenever firearms have been produced or used on duty on their return to the station.

The evidence

The Tribunal has been furnished with copies of the records maintained at Athlone and Granard garda stations in relation to firearms issued to local members for the period 19/20^th April, 2000. Such records were made pursuant to Chapter 25.37 of the Garda Code. It is noted that the records were not kept in a standard format or in a bespoke register. The Granard register contains a complete record of the weapons issued; their serial number; the number of rounds issued; the signature of the recipient; the signature of the station officer; the date of issue and return of the weapon; the number of rounds returned; the signature of the returning officer and the counter signature of the station officer. In contrast, the Athlone register contained no reference to the make of the weapon or the number of rounds of ammunition issued or returned.

Formal duty reports were not made by officers who carried weapons at Abbeylara. The reasons given by them were that an investigation had been announced and that they made statements to the Culligan investigation team. They were not, therefore, it was contended, further required or requested to make duty reports. Thus, for example, Sergeant Foley did not make a duty report pursuant to Chapter 25.42 of the Garda code on his return to Athlone station for the above stated reason. He confirmed that no one had told him not to make such a report. Garda Campbell, stated that following the event in Abbeylara he made a statement but he did not make a duty report. Detective Sergeant John Quinn signed out three firearms on 1 9th

April at Athlone garda station. He did so on the instruction of Sergeant Foley. These were two Uzi sub-machine guns and a Smith and Wesson revolver. One of the sub-machine guns was for Garda Boland’s use. This weapon was subsequently given to Garda Mulligan during the course of the operation. Garda Mulligan returned it to Athlone early on the morning of 20^th April.

With regard to the periodic inspection of weapons, evidence was given that no specific inspection was carried out on the weapons following the incident, but that they were checked periodically. Thus, it was stated that on the occasion when the district officer carried out a general inspection he would check the weapons and ammunition stored there and also those personal issue weapons held by detectives attached to that station. Sergeant Foley said that such inspections were not necessarily carried out quarterly in Athlone garda station. He periodically inspected the firearms and ammunition of members under his charge. He could not recall however whether he had done so in the week prior or subsequent to 20^th April, 2000. Garda Campbell said that it was not the practice in Granard garda station to carry out a weekly inspection of the firearms and ammunition held by detectives. Instead, once a year the sergeant in charge in the station requested him to produce his firearm and ammunition for inspection.