The suspicious movement of a net curtain at an upstairs window led gardaí to unlawfully force their way into a Co Dublin house in search of a man who had broken bail, the Court of Appeal has decided.
The court, consisting of judges Michael Peart, Gerard Hogan and Marie Baker, has sent a claim by a Polish national woman for damages for personal injury, trespass and violation of her dwelling back to the High Court to assess damages.
Mr Justice Hogan said the three-pronged claim by Judyta Rozmyslowicz, of The Grove, Sallins, Co Kildare, had arisen out of gardaí forcibly entering her home to search for her former partner, Sebastian Snaidy, who had breached a High Court bail.
Mr Justice Hogan said that in July 2012, after Mr Snaidy had failed to answer his bail, gardaí visited his address and told Ms Rosmyslowicz they wanted to talk to him. Speaking as she peered through a narrow opening in the door she had stated he was not there and that she was the only one in the house.
She had said Mr Snaidy had left to attend court but when told he had not turned up she said he must have gone back to Poland. She did not consent to gardaí searching her home and, after one garda claimed she had seen a hand move an upstairs lace curtain, the door had been forcibly pushed open by gardaí.
Pet dog
No-one else had been found in a search of the house and Ms Rosmyslowicz had told them it must have been her pet dog, sitting on her bedroom window sill, that had rustled the curtain.
A Garda sergeant had told the initial hearing in the High Court that Mr Snaidy's red BMW was parked in the driveway and he had decided to forcibly enter when his colleague said she had seen a hand at the window. Ms Rosmyslowicz had sued for an injury to her ankle, trespass and violation of her dwelling, all of which had been dismissed by the High Court.
Mr Justice Hogan said the gardaí had not discharged the evidential burden, placed on them by law, of demonstrating they had a reasonable cause to believe Mr Snaidy was present and to justify forcible entry.
Despite the garda having stood by her belief that she had seen a hand at the curtain, the High Court found she had told her colleague only of a “movement of the curtain” which collapsed the reasonable cause for forcible entry requirement.
The court allowed Mr Rosmyslowicz’s appeal and remitted the case to the High Court for an assessment of damages.