The first all-female panel of judges to preside at the Court of Appeal has been told that a man jailed for ten years for a machete attack should have his conviction overturned over the failure to disclose garda notebook evidence to the defence.
The court was told on Tuesday that the notebook was “slid across” the table by the prosecution to the defence solicitor while the relevant Garda gave evidence during the trial.
Assault
At Limerick Circuit Criminal Court in November 2021, John O'Donoghue was convicted of assault causing serious harm to Willie O'Driscoll Sr, who was then aged 74, in Bothar Buí, Rathkeale, Co Limerick, on December 17th, 2017.
O’Donoghue (54) of Lower Main Street, Rathkeale, was also convicted of violent disorder on the same date and location.
A jury unanimously convicted O’Donoghue on the assault causing serious harm and on the violent disorder charge but found him not guilty of a charge of the production of an article – a machete – during the course of a dispute and of making threats to kill.
O'Donoghue's counsel argued today that this was a "conflicting" verdict, as the defendant was cleared of producing a machete yet found guilty of assault causing serious harm in a case where the injuries could only have been inflicted by a machete.
O’Donoghue had pleaded not guilty on all counts.
He was sentenced to 10 years' imprisonment for the assault causing serious harm and to eight years for the violent disorder offence.
O’Donoghue’s appeal was heard on an historic day for the Court of Appeal, which had, for the first time, an all-female panel of judges in presiding judge Ms Justice Isobel Kennedy, Ms Justice Tara Burns and Ms Justice Úna Ní Raifeartaigh.
Garda notebooks
At the Court of Appeal on Tuesday, Michael Bowman for O’Donoghue submitted that the disclosure of Garda notebooks to the defence had been requested before the November 2021 trial to no avail.
However, a Garda notebook had been brought into the case by the prosecution, concerning the description of the scene after the incident.
Mr Bowman said he had no knowledge of the contents of the notebook in advance and had acted in good faith but had not received an additional evidence notice from the prosecution.
Mr Bowman said that while the Garda was giving his evidence in court, a four-page copy of the relevant section of the notebook was “slid across” the table by the prosecution to the defence solicitor - a situation Ms Justice Kennedy described as “most unsatisfactory”.
Mr Bowman said the production of a Garda notebook during the trial of which the defence had no prior knowledge left Mr O’Donoghue “prejudiced” and the defence became “utterly exposed”, as they had already cross-examined witnesses in the case.
Counsel said the case had been “exclusively” prepared in relation to probative witness testimony but that the Garda evidence now represented the entry of “independent” evidence previously unknown to the defence.
Mr Bowman said that conflicting accounts from various witnesses of what happened on the day meant that independent evidence “was going to be of value”. “It was clearly a matter that was going to be of concern,” said counsel, who added that it was his client who had claimed to have actually been assaulted by Mr O’Driscoll.
Mr Bowman said that the O’Driscoll family members had given evidence that they came under attack from bricks, stones and bottles thrown by the O’Donoghues but that there had been no visible damage to any caravan, while both the yard where the claimed incident occurred and no Garda photo evidence corroborated the claims.
CCTV evidence
Separately, Mr Bowman said the prosecution failed in their duty to seek out “crucial and paramount” CCTV evidence in the case. Mr Bowman said that no CCTV had been retrieved by gardaí even though there were 30 cameras in the area, according to an engineer the defence hired themselves.
Counsel said disclosure issues had been brought to the attention of Judge Patrick Meghan by the defence before a jury was sworn in. Judge Meghan, said counsel, responded that the jury would be sworn and could then be discharged if disclosure issues arose during the trial.
Mr Bowman said that in light of “approaching the case in a very particular basis”, he had applied to the trial judge to have the jury discharged on the grounds of disclosure issues but was refused.
Counsel also said conflicting verdicts had been returned by the jury who found his client innocent of the production of the machete yet convicted O’Donoghue of the assault causing serious harm in a case where the injuries “could only be sustained by a machete”.
The lawyer further submitted that the trial judge’s charge to the jury was insufficient regarding the “core principles” of the burden of proof and the capacity to draw inferences and failed to give the jury “illustrative, specific” examples of both concepts.
Mr Bowman said that an effort to have the guilty verdict “arrested” also failed after someone purporting to be a juror emailed the defence claiming to be unhappy with the deliberation process and felt they had not been listened to.
Responding, Lily Buckley BL, for the State, said the trial judge took a “very careful” approach to his charge to the jury and told them to treat each offence before them as a separate trial.
Ms Buckley said the jury were attentive and had inquired of the court for a definition of the word ‘production’ in the context of the machete being allegedly produced in the course of the dispute.
Conflicting accounts
Mr Buckley said there had been conflicting accounts of who had brought the machete to the scene, with O’Donoghue claiming that Mr O’Driscoll had brought it to the scene but dropped it before it was picked up by the complainant’s son.
On the issue of the notebook, Ms Buckley said she had to accept there was an issue with the timing of the service notice of the additional evidence, to which Ms Justice Burns interjected: “There was no service. The document was left on a table. That is the extent of it.”
Ms Justice Kennedy said that “not on any reckoning was this disclosure”.
“It is unsatisfactory, and I don’t contend otherwise. But I would say it was not enough to stop the trial,” said Ms Buckley.
Regarding the lack of CCTV evidence in the trial, Ms Buckley said she was not sure that there was any missing footage in the trial, noting that the injured party had crawled to a location from another where he received his injuries.
Ms Buckley said “this wasn’t a perfect trial, no trial is” and said that gardaí had called to the house with the CCTV camera only to be told by the woman that the camera had been tilted since the incident. The woman told gardaí that she didn’t watch the camera or know how the system worked, said counsel.
Ms Isobel Kennedy said the woman gave evidence saying the cameras were operational and had not been tilted towards the scene since the incident.
Ms Justice Ní Raifeartaigh said: “All that means is that the gardaí might have found a record of what took place. It doesn’t matter if she looked at it or not.”
“It was uncontradicted evidence she gave. Her evidence was all one way. She told gardaí it was operational and they didn’t collect it. They were told there was relevant evidence and didn’t come back,” said Ms Justice Ní Raifeartaigh.
"I have to accept they didn’t come back,” said Ms Buckley, who added that gardaí concluded that there was “nothing of evidential value” arising from gardaí canvassing for CCTV.
“I can’t make the investigation other than what it was. There may be a concern over the absence of clarity, but I submit it can’t be enough for the court adopting an exceptional action and quashing the sentence,” said Ms Buckley.
Ms Justice Kennedy said the court would reserve its judgement in the matter.
