Brian Rossiter case: Climbdown by Michael McDowell

30 June 2005
Vincent Browne

McDowell announces inquiry into the circumstances and arrest and detention at Clonmel Garda station of Brian Rossiter on 10/11 September 2002, having ignored pleas for an inquiry for 18 months. (Brian Rossiter, then aged 14, was found in a coma in Clonmel Garda station on the morning of 11 September 2002 and a life support machine which had kept him breathing for three subsequent days was turned off on 13 September 2002).

The inquiry will have no powers to compel witnesses to give evidence and therefore no authority to require Gardai on duty in Clonmel Garda station on the night of 10 September 2002 to tell what they witnessed.

McDowell claims he had no personal knowledge of correspondence issued in his name concerning the case.

Although a Garda report was done on the case, key witnessed were never interviewed.

One witness, Anthony O' Sullivan, a friend of Brian Rossiter, claims he was seriously assaulted by Gardai on the night in question, both at the time of his arrest and, subsequently, in the Garda station.

Anthony O Sullivan also claims Brian Rossiter told him he also had been assaulted by Gardai that night.

Another witness, Tony Buck, an adult, who was being detained in Clonmel Garda station that night, claims to have witnessed Garda violence against one of the boys.

Tony Buck also claims he overheard a Garda say to other Gardai the following morning, when Brian Rossiter was found to be in a coma, "you went too far this time boys".

BACKGROUND

Brian Rossiter was found in a coma in a cell in Clonmel Garda station on the morning of Wednesday, 11 September 2002. He was rushed to St Joseph's hospital, Clonmel and later transferred to Cork University Hospital where, on Friday, 13 September 2003, a life support machine, which had kept him alive, was turned off.

According to an autopsy report conducted by the State Pathologist, Marie Cassidy, Brian Rossiter died as a result of head trauma. She stated "by the time he presented at hospital there was irrecoverable brain damage".

Prior to conducting the autopsy, Marie Cassidy had been informed Brian Rossiter had been assaulted some days before his detention by the Gardaí –this was on the night of Sunday, 8 September, when he was assaulted by an adult outside his sister's house in Queens St, Clonmel. Although he had two very evident black eyes as a result of the assault and had mentioned to a sister that he had a headache the following day, according to his friend, Anthony O 'Sullivan, he was in very good form throughout Tuesday, prior to their arrest.

Also, according to Anthony O Sullivan, although they drank some cider during Tuesday, they consumed no drugs of any kind – both Brian Rossiter and Anthony O'Sullivan had previously taken drugs, cannabis and ecstasy and Anthony O'Sullivan later got treatment from drug addition, he is adamant neither of them had drugs on the day of their arrest. A biochemical test done on Brian Rossiter in St Joseph's Hospital, Clonmel on the day he was brought there from the Garda station, notes that no substances were detected in his system.

However it appears Marie Cassidy was also informed before she conduced the autopsy that Brian Rossiter had been on a four day drinks and drugs binge. She concluded that he could have suffered the fatal head injuries on the Sunday night. Symptoms of such injuries could have been "misconstrued as being due to alcohol or drug intoxication".

MCDOWELL'S DENIAL

On 16 January 2004, the solicitor acting on behalf of the parents of Brian Rossiter, Pat and Siobhan Rossiter, wrote to Michael McDowell, setting out the then known facts concerning Brian Rossiter's death. A reply dated 19 January 2004, acknowledged receipt of the letter and stated the matter was "receiving attention". There was no indication of any "receiving attention" for over two months and on 29 March 2004, the solicitor again wrote to Michael McDowell saying "I would have hoped that the matter would have received more urgent attention particularly since it relates to the loss of such a young life". On 31 March 2004, another reply saying the matter was "receiving attention" ...

On 22 April the solicitor wrote again. In this letter the solicitor stated: "Your office's failure to reply (to previous letters) coupled with the refusal of the coroner, the DPP and Gardaí to furnish a copy of the autopsy records to my client has done little to bolster their confidence in the State's appetite for a proper investigation of their young son's death". On 24 April 2004, a reply stating the mater was "receiving attention".

Then on 20 May 2004, the Private Secretary of Michael McDowell wrote to the solicitor saying "On receipt of your letter dated 16 January 2004 the Minister requested that the Garda authorities prepare a report on the matter. He will communicate with you further when it comes to hand".

Finally on 31 August 2004, a substantive reply was received to the original letter of seven and a half months previously. It stated "I regret the delay in replying but this was due to the need to obtain a Garda report on the matter. This report is now to hand". It went on "The investigation of a criminal complaint is an operational matter for An Garda Síochána and as such the Minister has no role or function herein". It went on to refuse access to the autopsy report.

|Michael McDowell now claims he had "no personal knowledge of (this) correspondence", even though the letter of 20 May 2004, stated "the Minister (had) requested a report from the Garda authorities". Why would he request a report if he had no knowledge of the issues being raised by the solicitor acting for the Rossiter's?

In this instance, it is not a question of a section of the Department of Justice, Equality and Law Reform failing to communicate with the Minister or a failure of the Garda authorities to communicate with him. In this instance it is a question of his own office and his own Private Secretary failing to inform him of very grave questions being raised concerning the conduct of Gardaí. Not just that but his Private Secretary writing letters in his name and stating a Garda report had been requested.

In any event Michael McDowell would have had knowledge of this issue from what was published in Village and elsewhere and from broadcasts on RTÉ's Liveline, Five-Seven Live, and the Tonight programme.

On 10 June last, in the wake of the publicity the case was getting, Michael McDowell issued a statement saying he was unable to comment on the case until he received a report from the Garda Commissioner on the matter. But it was stated on his behalf on 31 August 2004, (ie ten months previously) that a Garda report on the case was "at hand" and the solicitor for the Rossiters had established through a Freedom of Information Application that in fact there were two report sent to the Minister on the case by the Garda authorities, one on 15 June 2004 and the other on 10 August 2004.

McDowell's letter to the Rossiter's solicitor, Cian O'Carroll, sent on 29 June last makes no reference at all to Garda reports.

On Monday 27 June, Village sent a list of questions to Michael McDowell. These questions were:

1.Why, on becoming aware in September 2002, that a 14 year old boy, while in Garda custody in Clonmel Garda station, had lapsed into a coma from which he did not recover, did you not institute an immediate inquiry (ie some time in September 2002), given the oversight you have over the Garda as Minister for Justice, Equality and Law Reform?

2.Why on the circumstances of Brian Rossiter's death being brought to your attention by Cian O Carroll, solicitor for the parents, in January 2004, did you not institute an immediate independent inquiry then?

3.Why did it take you seven and a half months to determine (as stated in the letter of 31 August 2004) that "The investigation of a criminal complaint is an operational matter for An Garda Síochána and as such the Minister has no role or function herein"?

4.What was this "criminal complaint"?

5.Given your criticisms of your predecessor, but one, Nora Owen, about her failure to respond adequately to complaints made by and on behalf of the McBreartys in 1997, how can you claim you had "no function" in relation representations concerning to the death of a child in Garda custody?

6.How does the Minister for Justice, Equality and Law Reform have "no function" in relation to a child dying in Garda custody?

7.Why have you now said you have asked the Garda authorities for a report on the circumstances of the death of Brian Rossiter, when, according to the letter of 31 August, a Garda report on that had "come to hand" by then – ie nearly a year ago?

8.Given that neither of the two people, Anthony O Sullivan and Tony Buck, who claim to have direct evidence on the treatment of Brian Rossiter in Garda custody on the evening of Tuesday, 10 September 2002, have ever been interviewed by Gardaí in connection with the case, how could you have been satisfied with a Garda report (the one referred to in the 31 August 2004 letter), which, presumably, acknowledged implicitly that these had not been interviewed?

(Anthony O'Sullivan was Brian Rossiter's friend than also aged 14 and he was arrested by gardaí at the same time Brian Rossiter was arrested. He says he was very seriously assaulted by Gardaí that evening in Clonmel Garda station and there is corroborative evidence supporting this claim,. He also says Brian Rossiter told him later that evening, when they were in adjacent cells, he (Brian Rossiter) had been assaulted by gardaí. The other witness, Tony Burk, an adult who was in a cell at Clonmel Garda station on the evening in question, claims to have witnessed Brian Rossiter being assaulted.)

9.What is the justification now for failing to institute an independent inquiry into the death of Brian Rossiter, given the seriousness of the issues that have emerged and the possibly implication of members of An Garda Síochána in his death?

On the afternoon of Wednesday, 29 June, Michael McDowell, made several attempts to contact Cian O'Carroll on his (the latter's) mobile phone, eventually reaching him in the late afternoon. In the course of that phone conversation he claimed not to have been aware of the previous correspondence, he said he was instituting an inquiry and, for the first time,

GARDA SILENCE

On Tuesday, 28 June, Village sent an email to the Garda Press office requesting answers to questions concerning the case. Our email referred to an email circulated the previous Friday by the press office stating the Garda Commissioner could make no comment on "this incident" lest it prejudice the trial of a person in connection with the assault of Brian Rossiter on the evening of Sunday, 8 September 2002.

Our email stated we were interested "in the Garda Commissioner commenting on the quite separate issue of the arrest and detention of Brian Rossiter and his friend, Anthony O'Sullivan, two days later, Tuesday, 10 September. Any comment that might be made on that would have no prejudice on the trial referred to."

We posed the following questions:

1. Was there an investigation conducted into what occurred in the Garda station on the evening of 10/11 September 2002 in relation to Brian Rossiter?

2. If so, what was the outcome of the investigation?

3. If not, how could it be that no investigation was undertaken into the circumstances in which a 14-year-old boy in Garda custody was found in a coma from which he did not recover?

4. If an investigation was undertaken into the affair how is it that at no stage were two people who were present in the Garda station at the relevant time - Anthony O'Sullivan, a friend of Brian Rossiter, and Tony Buck, a local adult - interviewed in connection with this?

5. I understand that [named Garda] has since retired – when did he retire and did he retire before the normal retirement age?

6. I understand that a [named Garda], who was present in the Garda station on the night in question, has also retired. Did he retire in the normal course?

7. When Brian Rossiter was removed from the Garda station on the morning of Wednesday, 11 September, 2002, why wasn't the scene in the Garda station preserved, given that there may have been evidence available there that was relevant to him going into a coma and later dying?

8. I understand that a jumper owned by Brian Rossiter was on the ground outside his cell at the time when gardaí were alarmed about his condition on the Wednesday morning? Was that jumper preserved – if not, why not? If the jumper was preserved, what were the results of forensic examination?

9.Tony Buck says he overhead an unidentified garda saying on the Wednesday morning when Brian Rossiter was found in a coma, "you went too far this time lads". Did anybody else in the Garda station at the time report this being said?

10.In the Garda record of Brian Rossiter's custody, no reference is made to the fact that on the Wednesday morning Anthony O'Sullivan, who was also held in the Garda station, was asked to go into Brian Rossiter's cell and try to wake him. Why is there this omission?

11.Given that omission, how reliable is the Garda record of Brian Rossiter's custody?

12.Subsequently on the Wednesday morning several gardaí, including [named Garda], attempted to get Anthony O'Sullivan to say that Brian Rossiter had taken an overdose of drugs or at least a large quantity of drugs on the previous day. Why did the gardaí so insist?

13.Since the gardaí were, or appeared to have been, convinced on the Wednesday morning that Brian Rossiter had consumed a large quantity of drugs prior to coming into Garda custody, why was a doctor not called the previous evening?

14.Anthony O'Sullivan made a complaint, albeit which he later withdrew but did not resile from, stating that he had been very seriously assaulted by [named Garda] when arrested on the Tuesday night and subsequently in the station cell. Given what happened subsequently in relation to Brian Rossiter, were these allegations of Anthony O'Sullivan investigated? If the allegations were investigated, what was the outcome of the investigation? If they were investigated, how serious was the investigation given that Anthony O'Sullivan was not interviewed. If the allegations were not investigated, why not?

15.If the Garda Commissioner claims he cannot answer these questions because of the case being taken against the person allegedly involved in the assault on the Sunday night, how can we not infer from that that the Commissioner is availing of this alibi to delay confronting the questions that arise in relation to the quite separate issue of what happened to Brian Rossiter in Garda custody two days subsequently?"

We received the following reply on Wednesday, 29 June from the head of the Garda press office, Superintendent Kevin Donoghue: "As you are well aware, the three occurrences – the assault on Brian, his subsequent arrest and detention, and his unfortunate death at Cork University Hospital – are inextricably linked. The level of correlation between each is likely to be subject of legal argument at the forthcoming trial. The position as indicated in my earlier Press Statement remains – nothing will be said by An Garda Síochána which could prejudice a fair trial".

THE EVIDENCE OF ANTHONY O'SULLIVAN

Anthony O'Sullivan had been a friend of Brian Rossiter for three years. They did not go to the same school but they had got to know each other because they lived in the same Clonmel estate. They both dabbled in drugs and cider. According to Anthony, Brian had taken ecstasy and cannabis on a number of occasions. According to Brian's mother, Siobhan Rossiter, Brian, who had been a fastidious student until around the age of 13, had been causing her worry and she was aware he had taken drugs. She had contacted a drugs adviser about his conduct but by no means was Brian a drug addict.

Anthony O'Sullivan said in an interview with Village he had been with Brian Rossiter through most of Tuesday, 10 September 2002 (see the accompanying panel, "Tracing the steps of Brian Rossiter's last day") and they were both arrested around 9 pm that night at Piper's pub on Gladstone St and brought to the Garda station. Anthony O'Sullivan says that in the course of the arrest and in being brought to the Garda station he was violently assaulted by a named garda.

In an interview he said: "When we got to the station he (the named garda) took me straight to a cell. I was not brought to the reception area, there was no taking of notes. When I got to the cell he (the named Garda) threw me on to the ground, I banged my head against a wall and he started kicking me as I lay on the ground. I was screaming. I got ten or more kicks, all for no reason.

"I heard Brian (Rossiter) being brought in, he was screaming as well for a few minutes. After the gardaí had left I called out to Brian 'Krusty (Brian Rossiter's nickname), they are after killing me'. He said 'They are after killing me too'".

There was some further conversation between the boys, according to Anthony O'Sullivan. He says he asked Brian Rossiter, "where did they catch you?", to which Brian Rossiter replied, "under a car in the car park".

He says he lay in the cell under the following morning. He says he thought his arm had been broken and his nose was bleeding.

On the next morning gardaí came into his cell and asked him to come with them to Brian Rossiter's cell to help wake Brian Rossiter. "Brian was lying there in a T-shirt. His jumper was outside the cell. He was shaking, barely breathing. I tried to wake him. I said 'Krusty, wake up'. I shook him about three times."

Anthony O'Sullivan says gardaí then questioned him, trying to get him to say Brian had been taking drugs the previous day and night. A named garda said, "Brian has gone away in an ambulance, was he taking drugs?". Anthony says: "I was crying and kept telling them Brian had taken no drugs".

After half an hour Eddie O'Sullivan, Anthony's father, arrived at the Garda station. Eddie O'Sullivan says Anthony showed signs of having been assaulted. He was in the interview room with several gardaí. He says they (the gardaí) were trying to get Anthony to say Brian had taken drugs but Anthony kept insisting that no drugs had been taken. Eddie O'Sullivan says: "They (the gardaí) were panicking. They couldn't take no for an answer. In the end they gave up."

Anthony O'Sullivan was never interviewed subsequently about his and Brian Rossiter's arrest on Tuesday, 10 September 2002, or about what happened subsequently in the Garda station.

THE EVIDENCE OF TONY BUCK

Tony Buck is a controversial character in Clonmel. He and his family have been in trouble with the gardaí. One of his sons is serving a life sentence for murder; the family claim he is innocent and he is taking a case to the European Court of Human Rights. Another son is serving a five-year sentence for assault.

Tony Buck was arrested at his home in the early evening of Tuesday, 10 September 2002, He was brought to Clonmel Garda station and placed in a cell. He says he was well treated there by a young garda who brought him numerous cups of water. He says he heard a young boy being brought to the station around 9.30 pm and being very seriously manhandled by a named garda. He says he could see through the latch on his cell door the boy being taken down to another cell with his arm twisted up behind his back. The boy was screaming and he says he saw the garda who had hold of the boy strike the boy violently on the side of the head. He says he subsequently heard the boy screaming and was aware the boy was being beaten.

He claims that on the following morning he heard the garda express panic on discovering Brian Rossiter was in a coma. One garda was shouting "Dial 999". He also claims he overheard a garda, whose voice he did not recognise, saying "you went too far this time boys".

There are inconsistencies in his account of what transpired and not everything he says coincides with the evidence of Anthony O'Sullivan. There are also other reasons to treat his evidence with caution – notably his subsequent bizarre conduct in the cell, where he smeared his own faeces across his body, he says, to ensure that the gardaí would not beat him too.

However some of his subsequent conduct gives credence to what he says.

He claims that he was disturbed by what he saw at the Garda station, especially when he later became aware that Brian Rossiter had died. He says he did not want to go to the Garda Superintendent. He sought the advice of a person in the town he respected, a bookmaker and peace commissioner, John Harney. John Harney confirms that Tony Burke reported to him seeing the boys assaulted in the Garda station and he says he has no reason to believe Tony Burke would have lied to him about what had happened.

Tony Burke at the time was receiving counselling from a therapist of the local health board, arising from abuse in an institution when he was a boy. Tony Buck says John Harney advised him to talk to the therapist.

Subsequently a letter was written by Gerard O'Neil, Regional Director of Counselling, to Superintendent Burke at Clonmel Garda station, on 17 December 2002. In the letter, Mr O'Neill states he and a therapist, Ann Lanigan, had spoken to Tony Buck about the events in the Garda Station on the evening of 10 September 2002.

This resulted in Superintendent Burke writing to Tony Buck requesting a meeting. Tony Buck says he contacted the Superintendent, agreed to meet him at Cahir Garda station but insisted he be accompanied by a counsellor. He says the Superintendent refused to meet on those conditions and no further arrangement was made.

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