A call of nature triggered a sequence of events that has ended with the conviction of three gardaí
IT MAY in time become notable for the fact that it was the first case brought by the Garda Síochána Ombudsman Commission to result in the conviction of gardaí by a jury following a trial.
The convictions of Garda Daniel Hickey, Garda Sgt Martha McEnery and Garda John Burke had its genesis in the most mundane and banal of events.
Anthony Holness had been out socialising, he drank eight pints and was taken short on his way home early on January 29th last year. He stopped to relieve himself against a wall on New Street in Waterford only to be caught in the act by Garda Hickey, who was on patrol with student Garda Áine Mullins.
What ensued was, in the words of Judge Leonie Reynolds, the subject of some dispute between prosecution and defence with Mr Holness, although admitting that he was initially abusive to gardaí and resisting arrest, saying he was punched and hit after he was blinded, incapacitated and subdued with pepper spray.
Defence lawyers for Hickey and McEnery, along with co-accused Garda Sgt Alan Kissane, who was acquitted, contradicted this and contended that Mr Holness was flailing around while he was on the ground and refused to make his hand available so that he could be handcuffed.
Mr Holness was arrested and taken to Waterford Garda station where he was attended to by Garda Sgt Kissane, who helped him clean up before he was released from custody at about 7am. The following day, he attended Waterford Regional Hospital for treatment for his injuries.
The trial heard that Mr Holness was examined by Dr Marissa Moodley on January 30th, who found he had abrasions to the left side of his forehead and the bridge of his nose, redness in his left eye and a bruise to his left bicep. He later complained of headaches but a CT scan found no abnormality.
When Mr Holness made a complaint to the Garda Síochána Ombudsman Commission about his treatment at the hands of the arresting officers, it obtained CCTV footage of the incident captured by camera 19 – one of 49 cameras at the control room in Waterford Garda station trained on various locations in the city.
That CCTV footage captured much of what happened to Mr Holness. Crucially, the camera which was recording Hickey swung away from the arrest for a few seconds and later again, after Garda Sgt Kissane and McEnery arrived on the scene – two movements which led the DPP to charge Burke, the camera operator.
Garda Burke, who started full time in the control room only on December 22nd, 2009 and had never received any formal training, was charged with acting with intent to impede the apprehension and prosecution of another and with acting in a manner tending and intended to pervert the course of justice.
The jury heard evidence from Mr Holness who admitted he had resisted arrest and swung his jacket at Hickey but he was then blinded after being pepper sprayed and was bundled to the ground “forcibly”. He could feel pressing and was beaten over the head several times before being forcibly put in a Garda van.
Sgt Kissane told commission investigators in an interview read out in court that he put his foot on Mr Holness’s hand to restrain him as he was trying to lever himself off the ground while he also put his foot on the lower part of his neck and shoulder. He said he did not “mistreat or assault him in anyway”.
McEnery told investigators that she noticed Mr Holness had his left hand and arm under his body and she was concerned he might be hiding a weapon, so she flicked her hand at the back of the neck to get him to put out his hand for handcuffing. At no stage did she think she used “excessive force”.
Burke told investigators that the joystick controlling CCTV camera movements was highly sensitive and he must have accidentally hit against it, causing it to swivel away from the arrest of Mr Holness. At all times, he had operated the CCTV camera to the best of his ability, he said.
While the State had argued that Burke had deliberately diverted the camera away from Mr Holness’s arrest at two critical junctures, the CCTV system, complete with audit trail which was installed in August 2009, nonetheless proved a valuable aid to the jurors. They watched it no fewer than seven times before reaching their verdicts.
In her charge to the jury, Judge Leonie Reynolds stressed the importance of treating the case against each garda separately. It appears to be an exhortation to which the jury paid some heed, given its very differing decisions in relation to each of the four.
The jurors found two gardaí guilty as charged, one guilty of a lesser charge and one acquitted – verdicts which for the three convicted officers are likely to have serious repercussions.
Doubtless they rue the manner in which they each responded to Mr Holness’s decision to answer the call of nature and the sequence of events it triggered.
