In a judgment sharply critical of "grave, obvious and deliberate" breaches of Garda regulations on the treatment of people in custody, particularly the failure to record interviews, the Supreme Court has quashed the conviction of a man for the murder of his wife.
Geraldine Diver was strangled in her car in Dublin nine years ago. A retrial has been ordered.
John Diver (64), a former hospital porter, Kilnamanagh Road, Walkinstown, Dublin, was convicted in November 2000 of the murder of his wife on December 2nd, 1996. The prosecution alleged he strangled her in her car after learning she was having an affair.
A central ground for overturning the conviction was based on conflicts between the evidence of Mr Diver's children regarding their father's movements on the night of his wife's murder and the evidence of a teenage neighbour, Paul Maher, who said he saw Mr Diver in the back of her car at a certain time that night.
Because statements made by the children in 1996 had not been proven, the Supreme Court held that the jury was not entitled to consider those statements to assess the children's credibility or for any other purpose.
The prosecution contended the 1996 statements were a more credible account of Mr Diver's movements but the children maintained at the trial in 2000 that the statements were not correct.
Mr Justice Adrian Hardiman yesterday said he failed to understand why the trial judge refused to allow the prosecution to call evidence from a garda who had taken a statement from Laura Diver in 1996. The court also held the trial judge was wrong to admit alleged statements by Mr Diver following interviews in Garda custody.
In the conduct of those interviews, there had been "grave, obvious and deliberate breaches" of Garda regulations regarding the treatment of persons in custody, the judge said. Denials by Mr Diver and other exculpatory matters were not recorded.
The Supreme Court decision arose after the Court of Criminal Appeal rejected Mr Diver's appeal against conviction but certified a point of law for determination, as a matter of public importance, by the Supreme Court.
The legal issue related to whether, in light of breaches of Garda custody regulations, the trial judge was correct in deciding that statements made by Mr Diver while in custody on December 8th, 1996, were admissible in the trial.
Giving the reserved judgment of the five-judge court yesterday, Mr Justice Hardiman found those statements were inadmissible because of "grave, obvious and deliberate breaches" of Garda regulations regarding the treatment of persons in custody.
Gardaí had omitted to record a series of denials by Mr Diver and were not entitled to cherry-pick what was to be recorded. If there was no other evidence in the case, the judge said he would quash the conviction on that basis alone.
However, there was other evidence from neighbour Paul Maher, who identified Mr Diver as being in the back seat of Ms Diver's car at about 9.26pm on the night in question. It was clear Mr Maher was wrong in his timing as there could be no doubt from other evidence that Ms Diver was killed in the car between 9.40pm and 9.55pm or a few minutes later, the judge said.
The video evidence showed an unidentifiable man leaving the car from the rear seat behind the driver at 10.01pm. The judge said the evidence at trial of the Diver children, then 16-year-old daughter Laura and 12-year-old son Simon, was relied upon by the defence as being inconsistent with Mr Diver being in a car parked outside the builder's yard between 9.40pm and 10.01pm.
The children, who were 13 and nine in 1996, said their father went out to get food and returned and then left again. At the trial they gave different times of departure and return but their previous statements were never produced.
The judge said the evidence of Mr Maher, if accepted by the jury, was almost coercively suggestive of the guilt of Mr Diver. On the other hand, the evidence of the children on times was inconsistent with Mr Diver being the person who left his wife's car at the builder's yard at 10.01pm.
While the children might be inaccurate in their timing, the jury was permitted to consider the accuracy and credibility of their evidence by reference to their 1996 statements which had not been proved and which should not have been considered by the jury.
Having regard to the narrowness of the issues in the case, especially on the question of time and on requests from the jury for the evidence of Mr Maher and the 1996 statements of the children, Mr Justice Hardiman said he could not be sure the same verdict would have been returned. On that basis, he would allow the appeal.
