The Court of Appeal (CoA) has dismissed an appeal against awards of €95,000 each to two Italian brothers who a jury found were maliciously prosecuted by gardaí following their mistaken arrest over an alleged handbag theft in Dublin.
Marco Gambucci, who runs a real estate business in Sardinia, and his brother Luca, a public servant in Perugia, sued Pearse Street, Dublin-based then Garda, now Sgt Daniel Barry, and Garda Jonathan Petrie as well as the Garda Commissioner and the State.
The brothers were living in Dublin at the time of the incident on May 18th, 2008, but have since returned to Italy.
The court heard they were arrested when gardaí were investigating an attempted handbag theft from a woman in Grafton Street.
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The brothers claimed that after boarding the Luas at St Stephen’s Green, gardaí Barry and Petrie violently grabbed them and pulled them from the tram. They said they were then assaulted, violently pushed on to the pavement and handcuffed.
They also claimed the gardaí, who were in plainclothes, never identified themselves, but this was denied by the defendants.
They were put in a Garda van and, during the journey to Pearse Street, they said they were punched, slapped and kicked. At the station, they claimed they were beaten and slapped again before being put in a cell.
They also said they were refused legal and medical assistance. After three hours they were allowed a phone call and were released when two work colleagues came to the station and identified them.
The next day the two gardaí went to Luca’s workplace and told him there had been a mistake and it was not their intention to harm him. It was claimed Luca was told not to make a complaint or he would also be charged with assault.
They had been charged with theft, and when the case first came before the District Court it was indicated an assault charge was to follow. However, when the case came back before the court, the gardaí failed to attend and the case against the brothers was eventually struck out.
They say the decision to charge them with theft, and the continuance of the case beyond a time when the gardaí knew they were never involved in the alleged offence, was a malicious prosecution.
Following a civil trial last year lasting seven days and running over two weeks, a jury of eight women and four men found the prosecution of the brothers was instituted and maintained for the improper purpose of dissuading them from seeking legal redress for their treatment by the gardaí.
They awarded Marco €95,000 and Luca €95,317 (inclusive of agreed special damages) for malicious prosecution.
The jury found the gardaí did not forcibly remove them from the Luas and that the gardaí did not honestly believe the case being made in prosecuting them for attempting to steal the woman’s handbag in Grafton Street.
The jury answered ‘No’ to a question asking if the brothers had been assaulted.
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The defendants appealed against a number of rulings and conduct of the trial by the judge, Mr Justice Alexander Owens, and also against the amount of damages awarded. The brothers opposed the appeal.
On Wednesday, in a judgment on behalf of the three-judge CoA, Mr Justice Charles Meenan dismissed the appeal.
He dismissed all 11 grounds of appeal put forward by the defendants, including that the High Court judge misdirected the jury on the law and relevant facts, erred in the way he directed the jury and failed to apply the correct legal test on findings of fact to be considered in respect of malicious prosecution.
He also said there were no grounds to disturb the award made by the jury in the case of either Marco or Luca.
The CoA provisionally awarded costs to the brothers, pending written legal submissions from both sides on the issue.
