Legal representatives of An Garda Síochána may return to the Barr tribunal following a ruling yesterday by the chairman, Mr Justice Barr, writes Christine Newman.
The dispute that led to their withdrawal from the inquiry arose over the possibility of a previously unheard-of fifth bullet being fired at Mr John Carthy by local armed gardaí on April 20th, 2000. The tribunal is inquiring into the circumstances surrounding Mr Carthy's death.
When, on December 18th, Mr Justice Barr inquired into the possibility of a fifth bullet, it led to clashes with Mr John Rogers SC, for the gardaí, who described the chairman's questioning as outrageous, and withdrew from the tribunal.
However, in a ruling yesterday Mr Justice Barr said a further pathology investigation of Mr Carthy's clothing showed there was no evidence of a fifth bullet and he was satisfied that the possibility had been ruled out.
The chairman said he had not rejected the truth of the evidence of local gardaí that there was no fifth bullet but it was necessary to investigate it. It now transpired there was no evidence that any of the armed local officers shot and wounded Mr Carthy in his right calf. In light of the revised pathology evidence, it was right that local gardaí should have the benefit of a tribunal finding now rather than at a later date, he said.
"It is appropriate, in the interest of the officers concerned, having heard all relevant evidence, that I should now formally make that finding," he said.
The solicitor for the gardaí, Mr Tom Murphy, who had also withdrawn this week, was present yesterday to hear the ruling.
He said: "My clients would wish to acknowledge the ruling and to thank you for it and and for resolving the issue."
When asked by the chairman if he was returning to the tribunal, Mr Murphy replied that his clients were there to give their evidence, and he would consider the position with regard to the other issue.
This is believed to refer to the contention by Mr Rogers that the chairman should not intervene in questioning witnesses. Mr Justice Barr rejected this, stating there was nothing to preclude him from doing so and it would continue to be his practice.
In yesterday's ruling, the chairman said: "It is unfortunate that the foregoing pathology evidence derived from the deceased's clothing and the change of professional opinion thus brought about was unknown to anyone on December 18th. If counsel and I had been aware of it then the difficulties which emerged that day would never have arisen."
During evidence by State Pathologist Prof John Harbison on December 18th, Mr Justice Barr said he had not rejected the truth of Det Sgt Anthony Foley's evidence that he had not shot the late Mr Carthy and had no responsibility for the possible "fifth bullet". He added, however, that in the absence of corroborative evidence it was necessary to investigate it and also the conduct of other local armed officers who possibly could have fired a "fifth bullet".
The tribunal's state of knowledge then derived from the evidence of Prof Harbison and reports by Prof Christopher Milroy, a distinguished British pathologist, in which both had postulated the possibility that Mr Carthy's calf wound may have been caused by a "fifth bullet".
That was the issue he had begun to pursue with Dr Harbison in evidence when counsel intervened. On January 13th, Prof Milroy gave a report to the tribunal based on an examination of Mr Carthy's jeans.
"He gave evidence that in the light of his examination of the clothing he was now satisfied that there was no evidence that a fifth bullet had struck Mr Carthy's right calf either directly or by way of ricochet from the road surface," the chairman said.
The revised opinion was put to Prof Harbison and he also accepted it.
They concluded that one of the four bullets fired by Emergency Response Unit members had entered Mr Carthy's upper body and was deflected to the calf.
"Accordingly, it transpires at this stage that there is no evidence that Sgt Foley, his colleague Garda (Eugene) Boland or any of the armed local officers, in the vicinity of the command vehicle or elsewhere in that area, shot and wounded Mr Carthy in his right calf," the chairman said.
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