The trial of sergent Diviney

From courtroom evidence, Gene Kerrigan reconstructs the story of a long-serving garda suddenly caught up in controversy, violence and the death of a suspect in custody.

IT WAS TEN PAST SIX IN THE evening when Detective Garda James Sheehan arrived at the garda station in the village of Shercock. The station was closed. Sheehan went around to the house attached to the station, where the village sergeant lived. There he met the sergeant's wife and asked her to fetch the 'sergeant.

Peter Diviney had been the garda sergeant in Shercock since 1974. He is a tall, balding, well-built man of 48. He was born in 1935 and joined the gardai in 1958. Three years later he was married. He and his wife had two daughters. In 1967 he was proomoted to sergeant, serving in various stations and being assigned to Sherrcock in 1974. In 1979 his wife died. He married again in February 1982.

It was two months later, on April 22 1982, that Detective Sheehan zrrived at the station in Shercock with Peter Matthews in custody. Shercock is a small village in Cavan, on the border with Monaghan. There were two gardai stationed at the village Sergeant Diviney and Garda Seamus Galligan. The station is open only in the mornings. The rest of the time the gardai would be out serving summonnses and the like. Two-thirds of the station building was Sergeant Diviney's private residence, the other third the garda station itself. Garda Galligan had lodgings in the village.

Shercock is a typically quiet counntry assignment where the garda serrgeant operates as local ombudsman as much as law enforcer, knowing and being known on a personal basis by the locals. In his career since 195 Sergeant Diviney had never been accused of any indiscipline or infringeement of garda rules. Untypically, Shercock garda station had been very busy the previous day, following a bank robbery in the village.

Now, on April 22, Sergeant Diviney opened the station to allow Detective Sheehan bring in his suspect, Peter Matthews. Sergeant Diviney was acctually off duty and he and his wife had been planning a night out in Longford. Sergeant Diviney made an enrry in the station to the effect that he was "coming on duty at 6.1Spm re: Peter Matthews". He now assumed responsiibility for anything that happened in the station. Peter Matthews had less than three hours to live.

*****

PETER MATTHEWS ARRIIved in Shercock with his wife Anne shortly after 5pm. Aged 41. he was five feet ten , very thin and in bad health. He was on crutches, having broken an ankle when he slipped in the snow some time earlier in the year. When that accident happened he had not long recovered from a serious car accident in which he had, according to friends, broken his neck. He had serious heart trouble. Medical evidence, concurring with information from his own doctor, showed that when he came to Shercock that day he had a thrombosis some weeks old. He was liable at any time IO sudden death ~OID a heart 2LLZCk if subjected to stress.

Peter Matthews drank a lot. He had been to twp pubs in Carrickmacross that day and had several whiskies. He was taking bedication for his heart complaint and on previous occasions his wife had warned him against drinkking while on the medication.

Peter and Anne Matthews had three children and lived at Loughfea, Carrickmacross. On April 22 Anne was four months pregnant. Peter, because of his frailty, was unable to work. He did the odd job now and then and sometimes did scrollwork with iron. He had told Anne he wanted to buy some iron in a shop in Shercock, it not being available in Carrickmacross. There is, according to counsel for Sergeant Diviney, no shop in Shercock selling iron.

On arriving in Shercock shortly after 5pm Peter and Anne Matthews went to Frank Burns's pub. They had drinks and Peter left the pub for about five minutes.

* * * * *

MAUREEN DALY IS A CLERK at the post office in Church Street, Shercock. At about 5.l5pm on April 22 a man came into the post office. This man had first come to the post office on March 15, again on March 29 and on April 5 and 13, On each occasion he had drawn £30· from the account of P J. McEneany, There was still "a considerable sum" in the account, On each occasion he had been served by Maureen Daly, Today, Elizabeth Mullins, the post mistress, was at the counter. Mrs Mullins noticed that the man appeared nervous. He said that he was usually served by "the other girl".

Mrs Mullins was suspicious and while Maureen Daly engaged the man b conversation she checked the list of stolen post office books. Post amce book No. 554407 was not on me list. The man was allowed dra w !30 from the account.

Still suspicious, Elizabeth Mullins =g Carrickmacross post office, where ::2~ book had been issued. She was i::Jl': that P.J, McEneany was an old -PT,. blind and infirm, unable to look ~"::~ his affairs, who had been living :s :-'.,,,, county home, St Mary's, for ~y=:ars_

Mrs Mullins made a series of phone calls. One was to Shercock garda station, where she got no reply, the station being closed. She also, appaarently, rang her husband Seamus, who in turn rang the gardai at Carrickmaacross. In the meantime, Elizabeth Mullins sent Maureen Daly down the town to look for the man who had drawn me money.

The call to the gardai in Carrickkmacross, nine miles a way, was taken by Detective Garda Sheehan. Although neither of the women in the post office knew Peter Matthews by that name, Detective Sheehan would later testify that he learned that "Peter Matthews was under suspicion", that he knew him and decided to go to Shercock to investigate. He was driven there by uniformed Garda Dennis Durkan. Garda Durkan would also testify that they were "looking for Peter Matthews on the way over". This aspect - how the gardai knew Peter Matthews was in Shercock - was not explored during the subsequent trial. Durkan would later testify that they learned that P.I. McEneany's home had been broken into, a trunk vandalised and the post office book taken. He said they "had information" that Peter Matthews did it.

On arriving in Shercock, Sheehan and Durkan went to the post office. Maureen Daly had identified a man in Burns's pub as the man who had drawn the money. She went to the pub again with the gardai. It was beetween 5.50 and 6pm. Sheehan went into the pub, Durkan waited at the door. Sheehan asked Peter Matthews to step outside for a minute. Anne Matthews stayed in the pub. Peter left his crutches behind. Outside, Sheehan asked Matthews to sit in the car. They drove to the post office and Sheehan brought Elizabeth Mullins out, She iden tified Peter Matthews as the man who had drawn the money in the name of P J. McEneany. Garda Durkan drove the car across the road and stopped outside the Protestant church. Detective Sheehan asked Matthews if he had the post office book.

Matthews said "I don't know what you mean". He put his hand into an inside pocket and took out a piece of paper, took a white tablet from the paper and swallowed it. Sheehan said to him, "you're an awful man, taking tablets on top of drink". Sheehan asked Matthews if he'd mind being searched at the station. Matthews had no objection. They drove to the station and found Sergeant Diviney.

* * * * *

PETER MATTHEWS WAS taken to the Day Room. Serrgeant Diviney was wearing a green blazer over the pants, shirt and tie of his garda uniform. The search took just a few minutes. Matthews was quite willing, even took off his shoes and socks. Diviney found seven pound notes. Sheehan found six five-pound notes in Matthews's back pocket. No post office book was found.

Sheehan asked about the book, Matthews said he hadn't got it. He said the £30 was part of the £75 social welfare he had received the previous day - he was keeping it apart in his back pocket to pay an ESB bill.

Sheehan brought Diviney out of the room. He said he was going back up the town to find Anne Matthews, she might have the book. He and Garda Durkan left. Diviney went back into the Day Room. He gave Matthews a cigarette and sat on the window ledge. Matthews sat on a chair in a crouched position, his arms crossed on his knees. Diviney asked him about the post office book, but Matthews had nothing to say. There was a fairly amicable conversation, Diviney asking where exactly Loughfea, where Mattthews lived, is situated in Carrickmaacross. There was a strong smell of drink from Matthews.

Garda Galligan, the other garda at Shercock, who had been out on duty in the area, assisting in the investigaation of the previous day's bank robbbery, arrived back at the station at 6.20pm. He signed himself off duty as of 6pm, but voluntarily stayed on beecause of the Matthews affair. Diviney sent him up the town to look for the post office book, also to find one of the two local Peace Commissioners who would be needed if Matthews was charged. (No Peace Commissioner would be located over the next two and a half hours.)

Detective Sheehan and Garda Durrkan arrived back with Anne Matthews. She was somewhat agitated, complainning about being embarrassed by being left in the pub when her husband was taken away, and now about being taken in.

She had left the pub and gone to a supermarket, had seen the patrol car with Sheehan and Durkan driving around the town and had waved to them. She had asked Durkan if she

could see' her husband. "Game", he replied. She got into the car and came to the station voluntarily - apparenttly thinking she was here to see her husband. She asked Durkan if he was arresting her, he said he wasn't.

Anne Matthews was taken to the Sergeant's office and, according to her evidence, was asked about the post office book. "Give me the book ÀPeter said he gave it to you." She said she didn't understand, didn't know what they were talking about. She would testify that Garda Durkan said:

"Don't be acting the bollocks, you know all about it."

There was a knock on the door.

Sheehan went out into the corridor. Seamus Mullins, husband of the post mistress, was there. He had a list of the five dates on which money had been drawn from the P.J. McEneany account. Mullins would later make another appearance at the station Hbut whether he was there for any lengthy period, or what he was doing if there, was not established at the subsequent trial. He was not called as a witness.

Sheehan went back into the room, holding up a sheet of paper with the dates on it. Anne Matthews was by now quite agitated and struck the piece of paper. Garda Durkan grabbed her hand.

Anne Matthews, in the course of questioning, indignantly threw open her coat and offered herself for a search.

* * * * *

BAN GHARDA MICHELLE MANnion, working out of Carrickma-. cross garda station, had been out on squad car patrol and arrived back at the station at 6.30pm for a mealbreak.

She got a message that Detective Sheehan, from her station, needed a ban gharda to carry out a search of a woman at Shercock. Unfortunately for Sergeant Diviney, it seems there was no thought at any time that the investigation of the post office inciident be carried out at Carrickmacross rather than at the sub-station at Shercock. Ban Gharda Mannion doesn't drive, so her partner, Garda Joseph Feely, drove her the nine miles to Shercock. They arrived at about 7.15pm.

There were various comings and goings over the next hour. For innstance, Sergeant Diviney sent Gardai Galligan and Feely out to search the village again - litter bins etc - for the post office book. There was much coming and going from rooms. Courttroom evidence is plentiful on some comings and goings, lacking in others. Money which Anne Matthews had in her handbag was taken and mayor may not, depending on the evidence given, have been given back to her. Sergeant Diviney testified that he forrmally arrested Peter Matthews, putting his hand on his shoulder in the best police procedural manner, and cautionning him. That, however, had not been in any statement the Sergeant had previously made.

The precise movements of the various participants in the investigaation of the post office fraud were to become insignificant in comparison with the events to COme.

The important events of the next half hour are these: Detective Sheehan told Diviney that he and Garda Durkan were in a hurry to get back to Carrickkmacross. He advised him to get Detecctive Garda Tom Jordan, stationed at Bailie boro, seven miles away, to come to Shercock. Diviney rang Jordan, Sheehan spoke to Jordan. Then Sheeehan and Durkan , having come to Shercock in search of Peter Matthews, having taken him in, having dumped the problem in Diviney's lap, went back off to Carrickmacross.

Sergeant Diviney entered the Day Room at about 8pm and talked to Anne Matthews. It was a friendly. talk. She told him, he would later testify, that her husband drank a lot, that their marriage was not the best. He told her about various facilities, alcoholic units and the like, which might help Peter's drink problem. She would testify that Diviney advised her to put Peter in a mental home. Anne; Matthews asked to see her husband. Diviney went out and brought Peter Matthews in to the Day Room.

Anne Matthews became agitated at the sight of her husband. She would testify that his hair had been torn out, that there were lumps of hair on his shoulder and sleeve. "Jesus, Peter, who done that to you?" She said in court that Peter pointed at Sergeant Diviney and 'that he told her that Diviney had knocked a tablet from his hand. "He skited the tablet off my hand and wouldn't let me take it." Anne Mattthews turned to Diviney and said, "you've been giving me a lot of soft talk about putting him into a mental - and you've been abusing him out there".

There was no other testimony that Diviney assaulted Matthews. No one else saw the hair or the incident with the tablets. A friend of Peter Matthews told Magill that he saw the body and it appeared that hair had been pulled out and the ears were swollen. There was no way of telling when this occurred or who was responsible. The testimony conflicts.

Peter Matthews was taken back to his cell. Ban Gharda Mannion then searched Anne Matthews and found no post office book (the book was never found).

At some point, possibly ten minutes to eight or thereabouts, Detective Garda Tom Jordan, from Bailieboro, arrived at the station.

* * * * *

FOLLOWING THE CONTROVERRsies about police behaviour during the mid-seventies the government in 1977 set up a committee under Justice Barra 0 Briain to recommend safeeguards for people in custody and for protecting gardai against unfounded allegations of misconduct. The 0 Briain report noted that "the practice has grown over the years to secure 'volunntary' attendance at stations by reefraining from advising the 'invitees' of the legal realities of the situation . . We believe that most people who go to garda stations to 'assist the police with their enquiries' do so under the misapprehension that they have no other choice than to do so".

Peter Matthews had gone volunntarily to Shercock garda station. However, in the subsequent trial of Sergeant Diviney, Justice David Sheehy would point out that the investigation should ha~e taken about ten minutes: ask Matthews for the book, he says he hasn't got it; put the allegations of the post mistress to him, he denies it; search him if he's agreeable - end of story. Either arrest him on the eviddence - which was strong - or let him go. After that the "voluntary" nature of his presence in the station is dubious. A suspect "can't be held", said Justice Sheehy, "while the gardai promote a case against him". The post office book, he said, was not vital evidence.

The O'Briain Report pointed out that "the problem has arisen that the gardai carry out questioning in many cases only because persons who are brought to garda stations fail, either through ignorance of their rights or fear of the gardai, to exercise their rights". The Report quoted Justice Hanna in the pivotal Dunne v. Clinton (1930IR 372), "In law there can be no halfway house between the liberty of the subject unfettered by restraint, and an arrest". The Report continued: "the idea of 'detention', as distinct from 'arrest', has been notionally accepted and acted upon by some members of the Garda Siochana". (Ironically, in promoting his Criminal Justice Bill, which will remove the safeguards mentioned by Justice Sheehy, the Minister for Justice, Michael Noonan, has explicitly and against established legal tradition, made that- very distinction between detention and arrest.)

Justice Sheehy wondered why on earth at this stage, long after the investigation should have been commpleted and either a charge made or Peter Matthews released, Detective Tom Jordan was called for. He got no satisfactory answer, but one answer might be that whatever the law, Serrgeant Diviney and the other gardai were doing nothing other than followwing what is established practice in most garda stations.

* * * * *

AFTER THE FRUITLESS search of Anne Matthews, Serrgeant Diviney took Peter Matthews to the station cell, which is adjacent to the Sergeant's Office - in which Anne Matthews remained with Ban Gharda Mannion. He and Detective

Jordan questioned Peter further about the missing post office book. Accordding to a statement made by Sergeant Diviney, Tom Jordan became annoyed and began hitting Matthews about the shoulders and head. Diviney testified that he told him to stop. "I pulled him back and told him very, very forcefully that that kind of conduct would not be tolerated." Jordan, he says, answered: "Fuck him, he has the book and it will have to be got." Matthews said: "Don't hit me, I have a weak heart."

In the Sergeant's Office, both Ban Gharda Mannion and Anne Matthews heard loud voices. Anne Matthews heard her husband call, "Anne, Anne, help me". Garda Joseph Feely, waiting in the Day Room, heard a voice calling "Annie", and "keep away from me". Anne Matthews tried to leave the room, to go to her husband, but Ban Gharda Mannion was in the doorway and told her to sit down. "He'll be alright. I promise you they won't do him any harm. Why doesn't he give them the book?"

Diviney got the name of Matthews's doctor and rang her. She confirmed that Matthews had a long history of heart trouble and had been in Drogheda hospital recently. She told Diviney to tell Matthews that she wanted to see him very soon. The call was logged at 8.45pm. At about this time, Sergeant Diviney's wife called in to ask him about going to Longford, for the planned night out. He told her it was too late now.

Sergeant Diviney went to the Serrgeant's Office and told Anne Matthews she was free to go. She insisted on seeing her husband. Diviney took her to the cell.

Peter Matthews was sitting at the end of the bed in the cell. He had, according to Anne, a black eye and blood on his cheek. Other witnesses confirm the blood. She ran into the cell and knelt in front of him. "Jesus, Peter, what are they doing to you? If you have the book, give it to them."

Peter didn't answer. Anne had no money. He gave her some change and asked her to call a solicitor, to tell him that "they are abusing me".

There is conflicting testimony about what exactly happened next. The evidence concurs in that as Anne Matthews left the cell, walked down the corridor, Peter was standing outtside the cell, looking drooped, frail (although he was five feet ten one witness of the scene described him as "small"), blood around his eye. Serrgeant Diviney made some gesture of raising his clenched fists to shoulder height. There is conflict about whether he did this while facing Peter or away from him. Anne Matthews gave eviddence that Diviney said: "Of all the fucking bastards I've hit . . ." Other witnesses say he said, "if you were a man I'd hit you, but you're a miserrable bastard". There is even conflict as to whether he said this to Peter, to himself or to someone else.

Anne Matthews left the station.

She complained to Diviney about the difficulty of getting back to Carrickkmacross at that hour of the night. He told her to go to a certain place in the village where she would get a lift in a patrol car. Anne Matthews left the station, as did Ban Gharda Mannion and Garda Feely. Apart from Peter Matthews, the only people in the station were Sergeant Diviney, Detecctive Jordan and Garda Galligan (who was in the Day Room). Peter Matthews had just minutes to live.

* * * * *

IT WAS pushing 9PM. GIVEN the events about to occur it is understandable that no one kept a minute-by-minute record. Sergeant Diviney left the station by the front door, heading around to his house to have a:' cup of tea. As he left he saw Seamus Mullins, husband of the posttmistress, entering. Mullins wanted to say something but Diviney said he wanted his cup of tea and went past. Mullins had, according to Garda Feely, been in the corridor at the point where Matthews was standing forlornly and Sergeant Diviney made his remark about "miserable bastard". Ban Gharda Mannion also said she saw him in the corridor at that point. Garda Feely testified that Mullins said to Matthews: ~'I seen you coming into the post office. Why are you trying to deny it? Why don't you tell them where the book is?" Justice Sheehy expressed surprise at the idea of a civilian being allowed to interrvene i1). such a manner. It is unclear from evidence, however, when exactly Mullins was in the station, when he came, when he left or what he did.

Diviney had his cup of tea and a slice of bread in his kitchen. It took him just a 'minute or two. As he left his house again to return to the station he passed the cell' window. fie heard screaming. When he got to the front door he saw Garda Galligan at the door of the Day Room. He too . hag heard the screaming. Together they ran down to the cell. According to evidence both gave, they saw Peter Matthews standing in the cell, near the wall, Detective Jordan holding his pullover with one hand. Matthews's trous~i:s and underpants were down around his ankles. He looked "very rugged, very shook up". Just as the' two gardai arrived at the cell door, they "testified, Detective Jordan deliivered a hard punch to the stomach of Peter Matthews.

Garda Galligan said: "Go easy, that man is in bad shape." Peter :'>1at1hews fell to the floor at the foot 0: the bed. Diviney and Galligan E-=ted him onto the bed. He was, they say. unconsciolJs.Both testify that Detective Jordan attempted to leave the station, He took out car keys and said "I'm off now". Sergeant Diviney said "You're not leaving, you're staying here." Sergeant Diviney felt Peter Matthew's chest but could not detect a heartbeat. He told Garda Galligan TO go home, he was off duty now.

Sergeant Diviney rang for a doctor and ambulance and then went around to his house and told his wife and daughter that Peter Matthews was dead. He asked them to fetch a priest.

* * * * *

THERE WAS AN ATTEMPT AT a cover-up. Dr Ciaran McMahon of Carrickmacross got a 'phone call from Sergeant Diviney at around 9pm. He was told that Peter Matthews had "taken a turn and lost consciousness". He arrived at the station in Shercock at 9.25pm and was taken to the cell. There he found Peter Matthews lying on the bed. Although his trousers and underpants had been pulled down during the period that led to his death, his clothing was now "undisturbed". Sergeant Diviney told the doctor, according to the doctor's testimony, that whilst sitting in the Sergeant's Office Matthews had stumbled forrward and turned blue. And that he had then been taken to the cell.

Dr McMahon pronounced Matthews dead at 9.40pm. The state pathologist testified that Matthews died from coronary thrombosis - a heart attack.

Sergeant Diviney admitted in court that in the aftermath of the death of Peter Matthews he had panicked and that he had made subsequent stateements which were inaccurate.

Diviney himself suffers from heart trouble, a muscular spasm, and spent some time in hospital after the event.

The case was investigated by Chief Superintendent Daniel Murphy and Detective Inspector Patrick Culhane. Sergeant Diviney subsequently made fuller statements, adding to and changging his early accounts of the death of Peter Matthews. Brought to court this month on charges of false imprisonnment and common assault, he gave his fullest statement on the events of that evening.

Garda Seamus Galligan, the junior garda at Shercock, was reticent on the witness stand and the judge had to remonstrate with him. He referred to "another person" in the cell. "Was there someone else in the cell?", the judge asked.

"Yes."

"Do you know who that was?" "Yes."

"Well, will you tell the jury?" "Detective Garda Jordan."

Peter Matthews, he said, was assaullted by "the man who was in the cell

"Ah, come on", said the judge. I'" "Why are you so reticent about menntioning his name?" Eventually Justice Sheehy exploded: "Stop pussyfooting with the jury. Please give your eviddence properly. No cover-ups, now - out with it."

Because Sergeant Diviney was charrged only with common assault - which doesn't involve striking someone, but merely putting them in fear of harm, such as by making a threatening gessture - there was no evidence allowed on the physical injuries to Peter Matthews. The jury was not allowed to hear that he had suffered a damaged pancreas, for instance.

Ad dressing the jury, Sergeant Diviney's counsel, Sean Moylan, said that what happened in the station after Anne Matthews left "is a matter of speculation. Nobody saw Sergeant Diviney strike Peter Matthews" .. this case is like a ghost. When you go to strike it it is not there, when you go to find it it is somewhere else ... sure, Sergeant Diviney blames himself for not ordering Tom Jordan out of the station, for not telling on him ... if it was not for that tragic death . . . we would not be here today." He said the case was "a. horrible, horrible example of a scapegoat. Sergeant Diviney may have been guilty of moral cowardice in not ordering Tom Jordan out of the station, of weakness in front of a Detective . . ." Justice Sheehy hoped that what happened in Shercock garda station on that night would not happen in other garda stations around the country.

Sergeant Diviney was found not guilty of common assault on Peter Matthews. The jury, after two hours, could not agree on the charge of false imprisonment. (It is little surprise that a jury should be confused on the legal distinctions of "arrest" and "detenntion" - given that the Minister for Justice has demonstrated confusion on the issue.)

At time of writing, garda sources say there are no other proceedings instituted or pending arising from the death of Peter Matthews. •