A detective sergeant charged with planting a firearm six years ago at a Travellers' campsite in Co Donegal in order for it to be found later by gardaí has asked the High Court for an order restraining his prosecution.
Det Sgt John White, who denies the charge, claims he cannot get a fair trial because material evidence was not preserved by gardaí and is missing.
Submissions in the proceedings by Det Sgt White concluded before Mr Justice Eamon de Valera yesterday and the judge said he would adjourn the case to today to allow him consider the submissions and whether he wished to have counsel make further submissions.
In proceedings against the DPP, the circuit judge of the northern circuit, and the Attorney General, Det Sgt White, of Ballybofey, Co Donegal, is seeking an order restraining his prosecution on firearms charges alleged to have been committed by him on May 22nd, 1998.
Alternatively, he is seeking an order restraining his prosecution on the firearms charges pending the discovery and delivery of material evidence.
It is alleged Det Sgt White handled a double-barrelled sawn-off shotgun for unlawful purposes. It is also alleged that he, while in the company of Det Garda Thomas Kilcoyne, placed the shotgun at a camp site near Burnfoot so that it could be discovered by the gardaí in a subsequent search.
In his judicial review proceedings for an order of prohibition restraining his prosecution, Det Sgt White claims his right to a fair trial has been prejudiced by the absence of material evidence.
He claims the State had acknowledged losing 15 of 28 audio tapes which gardaí seized from his house in June 2004. He claims the missing tapes included tapes of conversations between him and informants, including a tape of a conversation in which he alleges he received information that a murder weapon, a shotgun, was to be found at a Traveller camp.
He also contends that out of 62 original documents which were requested, 48 had been lost, mislaid or were not available. It is further alleged that a holdall, which allegedly contained a shotgun and clothing, had disappeared. It is contended the sole prosecution evidence against Det Sgt White is contained in statements made by Det Garda Kilcoyne.
In an affidavit, Det Sgt White's solicitor, Patrick A. Dorrian, said it was clear from Det Garda Kilcoyne's statements that, if his account was correct, he was a participant in the alleged offence. However, to Det Sgt White's knowledge, Det Garda Kilcoyne had never been charged with any offence by the DPP. It appeared that Det Garda Kilcoyne had been granted immunity from prosecution or some form of accommodation by the DPP in return for his testimony against Det Sgt White.
Mr Dorrian said that, during a Garda search of the camp at Burnfoot on May 23rd, 1998, a holdall bag containing children's clothing and a double-barrelled shotgun was found by Sgt Niall Coady. Evidence to be given by Det Garda Kilcoyne was to the effect that Det Sgt White had procured this bag and clothing in order to hide the shotgun before going with Det Garda Kilcoyne to the camp site.
Mr Dorrian said the holdall bag and clothing were material and crucial evidence in the case against Det Sgt White. However, Donegal Circuit Court was told on April 18th, 2004 that the bag and clothing would not be available for the trial because the gardaí had lost it.
In opposing the proceedings, the DPP argued that Det Sgt White had known since May 2002 that certain items were missing but had waited until July 2004 before seeking leave to take judicial review proceedings to stop the trial. It was argued that, because of this delay and because the High Court in July 2004 was given a misleading impression of the facts of the case, that Det Sgt White was not entitled to the prohibition order sought.
In further affidavits on behalf of Det Sgt White, it was denied that the High Court in July 2004 was given a misleading impression of the facts of the case.
