The barrister for a man accused of murder during a melee outside a pub has told a Central Criminal Court jury that if they have any doubt his client kicked the deceased in the face, they must find him not guilty.
“If there was a running kick that caused a thud to a face, you’d expect to see a little bit more marks than were there,” said John D Fitzgerald SC, counsel for Calvin Dunne (24), who stands accused of the murder of Dylan McCarthy during a fight outside a pub in a Kildare town in 2022.
It is the State’s case that Mr McCarthy (29) died following an incident in which he received both punches and “a vicious kick” to the head from Mr Dunne while he was attempting to get up off the ground. The jury heard that Mr Dunne argues he was acting in self-defence and that Mr McCarthy was himself “involved in violence” on the night.
Mr Dunne (24), of Abbey View, Monasterevin, Co Kildare, has pleaded not guilty to the murder of Mr McCarthy on or about August 22nd, 2022. He has also pleaded not guilty to violent disorder on August 21st, 2022, at Dublin Road, Monasterevin.
On Wednesday his co-accused, Sean Kavanagh (26), with an address at St Mary’s Lane, Church Avenue, Monasterevin, pleaded guilty to a charge of assault causing harm on Eamon McCarthy, the father of the deceased, on the same date and at the same location. A charge of violent disorder was taken into consideration.
Ms Justice Caroline Biggs then directed the jury to find Kavanagh not guilty of the murder of Dylan McCarthy, a charge he had denied.
In his closing speech for Mr Dunne’s defence on Thursday, Mr Fitzgerald said the McCarthy family started the fight in the Bellyard pub, but he reminded the jury that the family were in court in tragic circumstances, as their son had died.
He said Mr Dunne and Kavanagh were wandering past the pub when the fight started inside, and when Dylan and Eamon McCarthy emerged onto the street, Mr Dunne did not “embrace the violence”.
Counsel said that Mr Dunne got involved at a point after Dylan McCarthy had first punched another man, before punches were exchanged between Mr McCarthy and Kavanagh. Mr Fitzgerald said that Mr Dunne got involved as he was going to the defence of his friend, Kavanagh, which the law said he was entitled to do.
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He said that it was not disputed that Mr Dunne punched Mr McCarthy, knocking him down before he kicked him, but where he kicked him is in dispute.
He reminded the jury that Mr Dunne had told gardaí that he kicked Mr McCarthy to the chest, but it was the State’s case that he kicked him to the head.
“If you have a doubt that he kicked him in the face, you decide in his favour. That’s the law,” Mr Fitzgerald told the 12 jurors.
Defence counsel said the State had relied on the evidence of eyewitness Stephen Donohue, who told the jury that he heard “a thud” when Dylan McCarthy was kicked.
However, Mr Fitzgerald said that Mr Donohue had changed his evidence of the distance he was from the incident, initially telling gardaí he was 40 yards but then telling the jury it was around 20. Counsel also reminded the jury that Mr Donohue told gardaí there was a sign obstructing his view and he had to move forward as he could not see.
Mr Fitzgerald also referenced the evidence of another eyewitness, David O’Neill, who said he had been drinking all day and accepted that it was possible Mr Dunne kicked Mr McCarthy to the chest.
“If there was a running kick that caused a thud to a face, you’d expect to see a little bit more marks than were there,” said Mr Fitzgerald, referencing the evidence of State pathologist, Dr Heidi Okkers.
He reminded the jury that Dr Okkers had said she could not distinguish between the marks on Mr McCarthy’s face as to whether they were caused by a punch or kick. Dr Okkers had also said that there was a bruise to Mr McCarthy’s chest as well.
Mr Fitzgerald reminded the jury that Dr Okkers had said she could not tell which blow had caused the injury that led to Mr McCarthy’s death.
Concerning the issue of self-defence, Mr Fitzgerald said that “the law doesn’t require you to stand back and take a punch or watch your friend take a punch”, adding that a person is entitled to defend themselves or another person from an attack or continued attack.
He said that Mr McCarthy “had offered violence”, so Mr Dunne’s decision to use the force of a kick had to be viewed in real time as Mr McCarthy was getting back up after being punched by the accused.
Concerning the matter of whether Mr McCarthy “squared up” to Mr Dunne before the accused punched him, Mr Fitzgerald said Mr Dunne was facing a man who had just punched other people.
He said there were a number of routes that could lead to an acquittal of Mr Dunne, including the doubt over the cause of the injuries to Mr McCarthy, the doubt over whether the accused kicked the deceased to the head, and the question of whether Mr Dunne had used reasonable force in the circumstances.
He told the jury that if they decided Mr Dunne had used unreasonable force but that he might have believed it was necessary, they should acquit him of murder but convict him of manslaughter.
In her legal charge to the jury, Ms Justice Biggs said that there are three verdicts open to them: guilty of murder; not guilty of murder but guilty of manslaughter; or not guilty of murder or manslaughter.
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She said that for a verdict of guilty of murder, the jury had to be convinced that Mr Dunne’s actions substantially contributed to the death of Mr McCarthy and that he intended to kill or cause him serious injury.
On the issue of self-defence, Ms Justice Biggs said a person may lawfully use force to defend themselves or another person under attack, but the force that can be used is only such as is reasonable in the circumstances as the person believes it to be.
She said the jury must look at the circumstances from the point of view of Mr Dunne and ask how he perceived things at the time that he threw the punch and kick.
Ms Justice Biggs will continue her charge to the jury of 10 men and two women on Friday.