The Court of Criminal Appeal yesterday quashed the convictions of two Dublin men on public order offences and ordered the State to return £1,150 which they had paid in fines.
Mr Owen Reid, Buckingham Village, and Mr Christopher Kirwan, Seán O'Casey Avenue, were jointly tried by a judge and jury in the Dublin Circuit Court in 2001 in relation to incidents on December 13th, 1999, beside the Tivoli Theatre, George's Place.
Both men were convicted of the offence of affray (using or threatening to use violence towards each other), as created by Section 15 of the Criminal Justice (Public Order) Act, 1994. Both received 18 months suspended sentences. Mr Reid was fined £550 and Mr Kirwan was fined £600. They both appealed against their convictions.
Mr Justice Hardiman, giving the appeal court decision, said gardaí were called to the area where a crowd had become disorderly. Mr Reid and Mr Kirwan were acquitted of assault on the gardaí but convicted of affray.
Mr Justice Hardiman said there was no evidence of Mr Reid using violence towards any person except two gardaí. He was not charged with any assault on one garda and was acquitted of assaulting the second garda.
It followed there was no prima-facie case against Mr Reid on the charge of affray and that count should have been withdrawn from the jury.
In Mr Kirwan's case there was some, if slight, evidence of affray from a garda that Mr Kirwan was "involved in fighting with two to four" people. The garda evidence did not satisfy the jury on the question of assault but they convicted him of affray on the same evidence.
The Appeal Court criticised the Circuit Court judge's charge to the jury in relation to Mr Kirwan's case and, because of that, held that Mr Kirwan's conviction could not be found safe.
Mr Justice Hardiman said the Appeal Court held in a 1974 decision that a jury should be told the accused is entitled to the benefit of the doubt and that, when two views on any part of the case are possible on the evidence, the jury should adopt that view which is favourable to the accused unless the State has established the other view beyond reasonable doubt. However, in Mr Kirwan's case, the trial judge spoke of "two views which are equal" and that was not the law.
The judge noted it was argued at the men's trial that the trial judge failed to take account of a submission of the possibility that a person might be "involved in a fight" in exercise of the right to use lawful force to protect himself or another.