The Irish Sun . Editorial
The Irish Sun . Editorial
Update: Original report mistakenly referred to former State Pathologist, Dr. John Harbison, as being deceased, it should have said he was retired. The report has been amended. GSOC apologises for this error.
In June 2016 the Garda Síochána Ombudsman Commission (GSOC) admitted for investigation a complaint on behalf of relatives of the late Fr. Niall Molloy who died on the 8th of July 1985, 33 years ago. The complaint was in relation to the original investigation into the death of Fr. Molloy. One person, Richard Flynn, was charged in relation to the death but was acquitted of the charge of manslaughter on direction of the trial judge in June 1986.
Since that time the unsolved death has been considered to be an open investigation. In March 2013 the Garda Serious Crime Review Team (SCRT) published its report into the death of Fr Molloy. The report examined the original investigation and reached a number of conclusions. The outcome of the SCRT report led to calls for further investigation into the death and circumstances surrounding the garda investigation at the time in 1985.
In February 2014 Mr. Dominic McGinn, Senior Counsel, was appointed by the Minister for Justice and Equality to review the contents of the report of the SCRT relating to the Garda investigation into the death of Fr Niall.
In the publication of his report of October 2014 on the 31st of March 2015 Dominic McGinn, SC, found that in light of the passage of time, coupled with the death of key witnesses, further investigation would not be likely to establish what had occurred leading to the death of Fr. Molloy. Further Mr. McGinn, SC, agreed with the SCRT findings in relation to the deficiencies in the original investigation.
GSOC was then approached by Mr. Henry McCourt, nephew of the late Fr. Molloy, to investigate the complaint about the deficiencies surrounding the original investigation into the death in 1985.
A report of that investigation is now available and attached to this release. As noted by Mr. McGinn SC in his investigation in 2014, the passage of time has meant that further investigation has not been possible. The statutory mandate of GSOC under the Garda Síochána Act 2005 means that it is not able to investigate the actions of retired members of the gardaí as they can no longer be held liable for breaches of discipline that may have arisen when members of the Garda Síochána.
While individuals and their actions, or failures to act, in 1985 and 1986 cannot be investigated further it is of real concern to GSOC that exhibits and documents relevant to the case can now not be found. This is particularly so at a time when forensic advances have meant that previously unsolved serious offences have been solved years and decades after the original crimes – both nationally and internationally. The case of Fr. Molloy is still an open and unsolved crime. The failure to keep exhibits and documents safe and available for future use is something that has arisen in other cases that GSOC has investigated and therefore not isolated to the particular facts of this investigation.
These matters have been raised in correspondence with the Garda Commissioner and this is set out in the Report released today.
Report following a complaint made by Mr. Henry McCourt, nephew of the late Fr. Niall Molloy who died on the 8th of July 1985 in Clara, County Offaly
Issued under section 103 of the Garda Síochána Act 2005
Author: The Garda Síochána Ombudsman Commission Issue/Publication Date: 09/07/2018
On the 9th of June 2016 the Garda Síochána Ombudsman Commission (GSOC) admitted a complaint for investigation from Mr. Henry McCourt, nephew of the late Fr. Niall Molloy who died on the 8th of July 1985 in Clara, County Offaly. The owner of the house in which Fr. Molloy died, Mr. Richard Flynn, was charged with manslaughter and tried in relation to the death. Mr. Flynn was acquitted by direction of the trial judge in 1986.
Mr. McCourt was complaining to GSOC about the Garda investigation into the death of his uncle, Fr. Molloy. He made his complaint to GSOC following the publication by the Minister for Justice and Equality in March 2015 of the report of Mr Dominic McGinn, Senior Counsel, concerning the Garda Serious Crime Review Team (SCRT) examination relating to the Garda investigation into the death of Father Molloy.
Mr McCourt stated to GSOC that he has not been given access to the SCRT report but he had received some information from the SCRT who had explained as much as could be explained about the findings that had been made. Mr McCourt said to GSOC that the SCRT and McGinn reports had uncoveredserious deficiencies in the Garda investigation into his uncle’s death and that the information he hadreceived had prompted Mr McCourt to bring the matter to GSOC’s attention.
It was alleged to GSOC that serious deficiencies in the Garda investigation into his uncle’s death gave rise to Mr. McCourt’s complaint relating to the “shambolic, unprofessional and unacceptableinvestigation into the death of his late uncle” which has “led to a serious miscarriage of justice in the case”.
Mr. McCourt was of the view that “while Dominic McGinn S.C. recommended no further inquiry into his uncle’s death, this does not mean that the conduct of the Garda investigation, and the performance ofthose Garda members involved, could or should not be investigated further”.
In terms of the deficiencies which Mr McCourt said had been identified, the main thrust appeared to be that it is now known certain evidence concerning Fr Molloy’s business and financial matters which wentto the motive involved and cause of his death was made available to the gardai at the time but was not subsequently addressed in the Garda file in the case.
Mr McCourt also referred to the varying medical evidence which exists in relation to the manner of FrMolloy’s death and issues surrounding medical reports and autopsy findings had not been followed upby the Gardai. It was Mr. McCourt’s understanding that the matter of the medical evidence could have taken the gardaí into other areas of investigation.
Mr McCourt raised concerns about other alleged deficiencies in the Garda investigation particularly around the failure to interview a number of individuals mentioned in witness statements and who should have been interviewed at the time. Other failures include the lack of reports on file on the various items and blood samples taken from the scene and from those present at the incident.
The Commission decided to admit the allegations for investigation, albeit noting the date of the events alleged which went back to 1985. However the publication in 2015 of the McGinn Report was considered by the Commission as a matter which allowed for the correct exercise of its discretion to extend the 12 month time limit for making complaints under the Garda Síochána Act 2005, as amended(“the 2005 Act”).
S 103 Report Page 2
In making the decision to admit the matter for investigation Mr. McCourt was briefed as to the legislative constraints under which GSOC operates. In particular the allegation being made was of a nature which did not appear to involve a criminal offence and thus was to be investigated under the provisions of s. 95 of the 2005 Act. This provision requires at the end of the investigation the compiling of a report by GSOC which goes to the Garda Commissioner with or without a recommendation to the Garda Commissioner about whether or not disciplinary proceedings should be instituted under the Garda Síochána (Discipline) Regulations 2007.
It should be noted that at any stage in a discipline investigation if there is evidence to suggest that the conduct under investigation does involve an offence or offences the case can be upgraded to a criminal investigation.
Mr. McCourt was also briefed that, in light of the time of the murder investigation – 1985, there was a very serious likelihood that most if not all of the personnel involved in the investigation would at this stage be retired. That being the case, GSOC cannot under the current legislative framework investigate the actions of retired members in disciplinary investigations.
The complaint having been admitted Mr. McCourt made a full statement to the GSOC investigators and, as is usual in all investigations, documentation was sought from the gardaí relevant to the initial garda investigation. Mr. McCourt, despite the passage of time, was in a position to provide documentation to GSOC from 1984 and 1985, along with medical reports that had been compiled and he felt were relevant to the medical issues surrounding the cause of death of Fr. Molloy.
A significant amount of material from the original garda investigation from 1985 was provided to GSOC, along with the opportunity to inspect documents in the possession of the gardaí. It was established that a Senior Investigating Officer was still assigned to the file and the case is classified as “open” in light ofthe fact that no one has been successfully prosecuted for the death of Fr. Molloy.
However it became apparent during the GSOC investigation that many original documents including exhibits are missing. There appears to be no record of handling of exhibits, and as such the person responsible for their loss cannot be identified. The Senior Investigating Office in the gardaí involved with the Molloy investigation endeavoured to find the missing exhibits including searching the Forensic Science Laboratory. By the end of the GSOC investigation the exhibits remained missing.
A review of the original investigation and discussions with gardaí currently tasked with the case confirmed that members of the original team were retired. The original State Pathologist, Dr John Harbison, is also retired. This led to the conclusion that, having reached this stage, GSOC was precluded under the 2005 Act from proceeding further with the investigation of Mr. McCourt’s complaint.
It should be noted that while the GSOC investigation was open Mr. McCourt also had access to gardaí involved with reviewing the original investigation and this cooperation should not be overlooked.
At the end of the investigation the Commission wrote to the Acting Garda Commissioner, Mr. Dónall Ó Cualáin, on the 9th of February 2018. In that letter, having set out the background of the investigation and the finding that the exhibits could not be accounted for by gardaí still assigned to the case, the following was set out:
S 103 Report Page 3
What has disturbed the Commission is the fact that despite extensive searches by garda personnel it would appear that many original documents and all the exhibits could not be found which may have assisted us in our enquiries. It is accepted that this is an old case, now in excess of some thirty plus years. However the case involves death and has been an open investigation since 1985 and thus, regardless of the public profile of this case, the Commission would expect that keeping all information and evidence safe and accountable would be a requirement until the case is formally closed. Safekeeping of documents and exhibits has become even more pertinent with the developments we see on a regular basis in relation to forensic advances and the ability to solve serious cases years, and decades later, continues to develop apace. Thus this knowledge places an even higher onus on police services to keep safe the documents and evidence which could make a prosecution successful into the future, even where witnesses may have moved on or died.
The issue of safe keeping of exhibits and related evidence in criminal investigations is a matter which GSOC has raised with An Garda Síochána on previous occasions. In this case we have relatives of the late Father Molloy who have lost a loved family member and where the circumstances of that death thirty years later still causes pain. This pain sadly has been compounded by a belief that a poor investigation was carried out into their uncle’s death at thetime. The lack of regard shown to the evidence and documentation in this matter in the intervening years by gardaí in many ways adds insult to injury which is clearly not a result anyone would wish to see.
In writing to the Acting Commissioner the Commission further noted the October 2014 report of theGarda Inspectorate on “Crime Investigation” which state that “During field visits, gardaí were askedwhere case files are kept and the consistent response was “everywhere”. The majority of gardaí statedthat files are kept in their lockers. In extreme cases, locations for keeping files included members taking them home. The retention of files by individual gardaí removes the ability of supervisors to check the progression of cases and if officers are away from work for extended periods, then files are not readilyavailable.” (Part 6, page 55).
The Commission is aware of the introduction of the Property and Exhibit Management System (PEMS) by the Garda Síochána in recent years but expressed its concern to the Acting Commissioner in its letter of the 9th of February 2018 that the kind of prior management as outlined above is not being sufficiently captured in this new system. The concerns, then, for what would be considered “cold cases”such as the Molloy case is therefore even greater. The Commission noted in its correspondence with the Acting Commissioner the recommendation further on in the Inspectorate Report at Part 9, page 55 where it says under Recommendation 9.16 “The Inspectorate recommends that the Garda Síochánaconducts an urgent examination of the current process for exhibit and property management. (Mediumterm).”
The Commission asked for a report as to the progress made in relation to the new PEMS process as well as what direction is being given throughout the country in relation to open cases, the solving of which could bring relief to families such as the family of the late Fr. Molloy.
The letter of the 9th of February 2018 to the Acting Commissioner was acknowledged by letter of the 21st of February 2018 which indicated that enquiries were being conducted into the matter. A reminder from the Commission dated the 16th of May 2018 elicited a response from Garda Headquarters that a report on the issues was awaited. No response has been received to date.
S 103 Report Page 4
1 Garda Siochana – Flooding. I would be most unusual for flooding to be able to cherry pick files and only destroy some of them.
2 DPP – File stolen by The General. The file was later recovered by the Gardai after doing a deal with Martin Cahill to release one of his associates from prison. File was given back to DPP but there is no longer any trace of it.
THE DPP ALSO INSTRUCTED THE GARDAI NOT TO INCLUDE NIALL’S SOLICITORS STATEMENT IN THE BOOK OF EVIDENCE.
3 State Pathologist’s Office – No documents exist anymore. Reason given was that the might have been lost when they moved premises
4 Coroner’s Office – There was a break in. The burgler selected a small number of files and set fire to them on a desk top. Fr Niall’s was one of the files.
Total number of views to website now over 117,000. 3,000 + views recorder in last nine days.
James Fogarty wrote in the Roscommon Herald
James Fogarty in the Roscommon Herald
The Minister for Justice has told the Dail that the government will not be taking any immediate action after a critical GSOC investigation into the death of a Roscommon priest almost 30 years ago.
A report this week claimed that vital evidence in the case of the Castlecoote native, who was killed at a house in Clara in Offaly in 1985, has gone missing.
GSOC began inquiries into the case after a complaint by a nephew of Fr Molloy who believed that the initial investigation into the death may have been flawed
The report claims that vital exhibits, as well as documents, have gone missing – despite the case still being an ‘active investigation’.
The matter was raised in the Dail this afternoon by Roscommon TD Eugene Murphy, who demanded to know what the government was going to do about the report’s findings:
A record number of views today has brought the total number to over 116,000
Publicity over the past few days has increased the number of visitors to this site. Number of views is now over 115,000
By Michael Clifford
Sergeant Kevin Forde was awoken at 3.15am on July 6, 1985. The parish priest was knocking on his door.
Sergeant Forde lived in a premises adjoining Clara Garda Station.
“There’s a priest dead in the Flynns’ bedroom at Kilcoursey House,” said Fr James Deignan.
It was scandalous and Fr Deignan wondered if it could be kept quiet. That was not possible, the sergeant told him.
Fr Niall Molloy had been dead for hours, when Sergeant Forde was alerted.
Over two hours earlier, at 1am, Fr Deignan had arrived at Kilcoursey House, an old country pile outside the Co Offaly town and home to Richard and Teresa Flynn, a wealthy couple who had various business and equine interests.
Fr Deignan had been asked by Richard Flynn to come to the house to deliver the last rites to someone. Fr Deignan was unaware that the person was a priest, and he didn’t ask what had happened.
The bedroom — one of nine in the house — was in some disarray. Fr Molloy was on the floor, his face bruised.
There was a long trail of blood across the floor, the result of an attempt to drag Fr Molloy towards the bedroom door.
A pathologist would determine that Fr Molloy must have been hit in the face five or six times, possibly by a fist. He bled into the membrane on the brain, which caused swelling, killing him.
The medical evidence would be that he was alive for some time after receiving the blows, but not necessarily conscious.
Fr Deignan administered the last rites to his fellow priest. He didn’t know whether Fr Molloy was dead or dying.
After doing his duty, he accompanied Richard Flynn downstairs.
They set about accessing medical help for the stricken Fr Molloy. This took some time. There was a lot of coming and going.
At 1.40am, Richard Flynn’s son, David, and his wife, Ann, arrived from their home in Tober, Co Offaly.
A doctor arrived at 2am. He confirmed the priest was dead. While the doctor was conducting his examination, Teresa Flynn was on the floor of the bedroom, in hysterics.
Two of her daughters were attending to her. The doctor gave her a sedative. At some point over the following hour, she was brought to hospital.
Then, eventually, somebody decided it was time to call the police.
The delay in informing the gardaí that somebody had died violently is an aspect of the Fr Molloy case that has haunted the deceased priest’s family over the last 33 years.
Another disturbing aspect was the subsequent garda investigation.
This led to Fr Molloy’s nephew, Henry McCourt, eventually lodging a complaint with GSOC. The result of that investigation was published this week.
GSOC pointed out that it was precluded by law from investigating the actions of the members of An Garda Síochána who were now retired.
However, the ombudsman commission did find that the retention of files was wholly inadequate.
“What has disturbed the commission is the fact that, despite extensive searches by garda personnel, it would appear that many original documents, and all the exhibits, could not be found, which may have assisted us in our enquiries.
“It is accepted that this is an old case, now in excess of some 30-plus years. However, the case involves death and has been an open investigation since 1985, and thus, regardless of the public profile of this case, the commission would expect that keeping all information and evidence safe and accountable would be a requirement, until the case is formally closed,” GSOC reported.
There is a third, disturbing aspect. Richard Flynn was charged with the assault and manslaughter of Fr Molloy and stood trial at Dublin Circuit Criminal Court, in 1986.
Before the case could go to a jury for decision, the presiding judge, Frank Roe, directed the jury to find the defendant not guilty, on the basis of evidence proffered.
Had the jury been allowed to deliberate and come to a decision, it is quite likely that the matter would have ended there.
Instead, his family were left without closure, and with the lingering sense that their 52-year-old uncle’s violent death has gone unanswered, constituting a miscarriage of justice.
Niall Molloy came from a large family in Roscommon town. He had an interest in horses since childhood.
This persisted after he was ordained, in 1957, and through various postings that eventually led back to his native county, where he was a curate at the time of his death.
This hobby brought him into contact with Theresa Brennan, from Galway. After she married Richard Flynn, the priest and the couple formed a solid friendship, which included some joint ventures in the equine business.
Theresa Flynn and Fr Molloy had a joint bank account, for dealing in horses, and Fr Molloy took out an insurance policy in the year before his death, nominating Theresa Flynn as the beneficiary.
The priest was a regular visitor to Kilcoursey House and had his own bedroom there.
On the night of his death, Fr Molloy had attended the marriage of the Flynns’ daughter, Maureen, although he didn’t officiate at the ceremony.
Later that evening, back at Kilcoursey House, he entered the Flynns’ bedroom, fully clothed.
According to Theresa Flynn, she awoke to find Fr Molloy sitting at the end of the bed.
Her husband gave a different account to a garda, later that night.
He said that Fr Molloy entered the room, there was an argument over who would go downstairs to get more drink, the priest and his wife ganged up on him, and he hit his wife once and Fr Molloy two or three times, in self-defence.
A detective inspector asked Richard Flynn whether he had found his wife and Fr Molloy in a compromising position. “No, no, nothing like that.”
The investigation that followed had many shortcomings. The taking of statements was less than rigorous or timely.
The background to the relationship between the Flynns and the deceased man was not properly examined.
There was no medical evidence about Theresa Flynn’s treatment at Tullamore Hospital on the night in question. The analysis of blood splatters, crucial to a murder investigation, was cursory.
A report on the case by senior counsel, Dominic McGinn, in 2014, placed some emphasis on the last of these shortcomings.
“This aspect of the investigation is particularly frustrating, because, subsequently, there was considerable conjecture about what may or may not have occurred at Kilcoursey House and a full and careful analysis of the pattern of blood splatters might have assisted in confirming or dismissing some of the suggested theories,” the lawyer reported.
In the end, Richard Flynn was charged with the manslaughter and assault of Fr Molloy.
The trial commenced on June 12, 1986 and concluded the same day. Richard Flynn was represented by Paddy McEntee, SC, the leading defence counsel of his day.
McEntee didn’t cross-examine the prosecution witnesses. The result was that the evidence was kept to a minimum, as there was little opportunity for witnesses to expand on the statements they made.
Then came the state pathologist, John Harbison. From him, McEntee extracted the nugget that Fr Molloy’s heart was not in the best shape possible.
He asked Harbison whether this could have contributed to the priest’s death.
Harbison couldn’t categorically deny such an outcome. Despite that detail, it was Harbison’s firm opinion that death had been due to the head injuries.
As a result of that exchange, McEntee applied to Judge Roe to direct the jury to acquit, on the basis that there was a possibility that the cause of death was a heart attack.
He also submitted that the evidence suggested self-defence on his client’s part.
After considering the matter, Judge Roe duly called back the jury and directed them to acquit on both charges.
While there might have been a legal basis to do so on the manslaughter charge, it is unclear the exact basis for throwing out the assault charge.
In any event, that was it. The legal process was complete. Richard Flynn walked free.
This matter has never been fully resolved. The review by Dominic McGinn went into some detail.
The prosecution lawyer, Raymond Groarke, wrote a report for the DPP after the trial. In it, he conceded that, in relation to the manslaughter case, the application from McEntee was valid.
However, Groarke had a different opinion on the fate of the assault charge. He reported that the count of assault should not have been withdrawn from the jury.
“There was ample evidence for the jury to consider whether or not the defence of self-defence was valid. This is the case if there was no other evidence at all than that of the accused’s statement.”
Had Richard Flynn been convicted on the assault charge, it is highly likely that, under the circumstances, anything but a considerable prison term would have led to public outrage.
A jury decision, one way or the other, would have also provided some degree of closure, ensuring that it had proceeded through the criminal justice system.
In the years to follow, it would emerge that Judge Roe moved in the same horsey set as the Flynns and Fr Molloy.
Six weeks after the trial, the inquest was held. The jury returned a verdict that Fr Molloy had died from head injuries.
In the years to follow, a number of incidents and developments added further to the mystery of the case.
Sometime in 1986, Niall Molloy’s brother, Billy, received an anonymous letter.
This purported to come from somebody who had witnessed a row between Niall and Richard Flynn at the Flynns’ daughter’s wedding, hours before the incident in the bedroom.
The letter stated that “Fr Nially and Mr Flynn were fighting downstairs. Mrs Flynn got between them to stop them.”
The letter went on to claim that the fight continued upstairs, afterwards, and that bottles had been broken in the course of it. Two possible witnesses were interviewed by the gardaí, but nothing came of it.
There were disputes between the Flynns and Fr Molloy’s estate over property, including a horse and some paintings. In some minds, what emerged might have been probative evidence in the criminal trial, as to motive.
It also emerged that there had been a burglary at Fr Molloy’s home about six months before his death. The inference was that documents relating to his business interests might have been stolen.
A cold case review concluded that while there had been a burglary, the only evidence available suggested that a small amount of money was stolen.
Then, on the night of August 29, 1987, there was a burglary at the offices of the DPP in Dublin’s St Stephen’s Green.
Around 60 files, including that on Fr Molloy’s death, were taken, most of which were ultimately recovered in October 1991. The Molloy file didn’t show up until a house was searched in January 1993.
One of the main suspects for the burglary was Martin Cahill, the criminal known as The General.
He would have plenty of interest in some files in the DPP’s office, but ordinarily that on Fr Molloy would hardly be among them.
However, with the case unresolved and dogged by suspicion, significance was attached, in some quarters, to the theft of the file in question.
In 2010, a series of articles on the case in the Irish Independent led to a decision to give the case a thorough going over.
The cold case review team of An Garda Síochána, including 10 detectives, reviewed the file, made additional inquiries, and conducted further interviews.
A report on that investigation was then compiled by the senior counsel, Domnic McGinn.
He produced a comprehensive report in 2014, ultimately suggesting that a full commission of investigation would not be warranted.
“Certainly, there are extremely unusual, if not unique, features about this case. Many of these are quite disturbing and merited an in-depth analysis.
Through it all, the family have said that they want and deserve the truth. They have provided their own research, which continues to raise questions.
In 2015, they sought a commission of investigation from then justice minister, Frances Fitzgerald.
“She came back to us after fourteen months to say she wasn’t going to accede to our request,” Henry McCourt told the Irish Examiner.
“GSOC was looking at the case at the time (following a complaint by Mr McCourt). But, now, their investigation is at the end of the road and they can’t take it any further, because they are constrained by law, in relation to retired members of the force.
“I would like to see somebody with the power to bring retired members of An Garda Síochána before them and to get their evidence, and that of other witnesses, on oath.
“A commission of investigation is the only thing that can make that happen. We’ve gone through all the other avenues.”
Whether the Government is disposed to such a request remains to be seen.
Theresa Flynn died in the 1990s. Richard Flynn died in 2017.
Henry McCourt’s complaint to GSOC
” shambolic, unprofessional and unacceptable investigation into the death of his uncle” which has ” led to a serious miscarriage of justice in the case”