A Rathkeale man who was jailed for 10 years for causing serious harm to an elderly man with a machete has had his conviction overturned due to the failure by gardaí to seek out CCTV footage of the attack.
At Limerick Circuit Criminal Court in November 2021, John O'Donoghue was convicted of assault causing serious harm to Willie O'Driscoll Snr, then aged 74, in Bothar Buí, Rathkeale, Co Limerick, on December 17th, 2017.
Mr O’Donoghue (54), of Lower Main Street, Rathkeale, was also convicted of violent disorder on the same date and location during an incident between two families.
A jury unanimously convicted O’Donoghue of assault causing serious harm and of violent disorder, 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.
Mr O’Donoghue had pleaded not guilty on all counts.
He was sentenced to 10 years' imprisonment for assault causing serious harm and to a concurrent eight-year term for the violent disorder offence.
Mr O’Donoghue subsequently appealed the conviction on the grounds that “vital” CCTV had not been harvested by gardaí and that a garda notebook had not been disclosed until the trial, when the relevant garda was already giving evidence in the witness box.
Duty
At the appeal hearing, Michael Bowman SC, for Mr O’Donoghue, said the prosecution failed in their duty to seek out “crucial and paramount” CCTV evidence in the case.
Mr Bowman said no CCTV had been retrieved by gardaí, even though there were 30 cameras in the area, according to an engineer hired by the defence.
Mr Bowman submitted that a woman who lived in a house in the area with CCTV cameras covering the location of the incident, which involved multiple individuals and vehicles at a nearby yard area, said the equipment was operational at the time and told canvassing gardaí they could view it.
However, the Court of Appeal heard that gardaí never returned to do so.
At the Court of Appeal on Friday, Ms Justice Tara Burns said the three-judge court would uphold Mr O'Donoghue's complaint “regarding the failure of the trial judge to direct an acquittal”.
She said this was on the basis of an unfairness arising in the investigation which deprived him of a “reasonable prospect of a defence”. Ms Justice Burns said it was an “established duty” of gardaí to seek out and preserve CCTV.
Ms Justice Burns said no evidence was submitted by the State to rebut the woman’s statement that she had operational CCTV fixed at a height to her house on the day and that gardaí had called to her house and had been granted permission to view the footage.
'Significant failings'
“It seems to us that there were significant failings regarding the investigation into CCTV in this case and that a realistic prospect of a defence existed in relation to this missing CCTV,” Ms Justice Burns said, adding that the court would quash the convictions.
Ms Justice Burns said that “highly relevant” CCTV had been available to gardaí, “which the investigating guards were aware of, yet had not harvested”.
The judge said there had been conflicting allegations by the respective parties in the case and therefore there had been an “onus on gardaí to acquire the CCTV from the outset”.
“It is axiomatic that CCTV footage of the incident, if it existed, would have been vitally important in light of the completely opposed positions adopted by the parties in relation to what occurred on the morning in question,” Ms Justice Burns said.
There was no evidence adduced by the State as to what CCTV enquiries took place as “no notes were kept of any investigation steps in this regard, to include not even keeping a basic record of the persons who were spoken to regarding CCTV,” Ms Justice Burns said.
At the appeal hearing, Mr Bowman also submitted that the disclosure of a garda notebook to the defence had been requested before the November 2021 trial, but 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 Isobel Kennedy described as “most unsatisfactory”.
'Utterly exposed'
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.
Responding, Lily Buckley BL, for the State, 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,” Ms Buckley said.
In her judgement on Friday, Ms Justice Burns said the manner in which the guard’s notebook entry was disclosed was “completely inappropriate”.
However, the information in the notebook which had not been disclosed until the trial, a situation “which left a lot to be desired”, did not add significantly to the evidence already before the jury, she added.
Ms Justice Burns said this ground did not persuade the court that the trial judge erred in failing to discharge the jury, or that unfairness arose from the incident that rendered the conviction unsafe.
In upholding the ground of appeal on the CCTV argument, Ms Justice Burns quashed the conviction and adjourned the matter for discussion over a possible retrial to March 22nd.
