A charge of manslaughter against a West Cork man accused of killing his wife three years ago was "preposterous", a defence lawyer told a jury yesterday.
Lawyers for two of his sons argued that one of them could be found guilty of his mother's manslaughter but was not guilty of her murder while the other was guilty only of assault.
Defence closing speeches were heard by a Dublin Central Criminal Court jury in the trial of Mr Joseph O'Brien (49), and two of his sons, Kieran (23) and Noel (22), over the death of Ms Julia O'Brien (44) at the family home in High Street, Drimoleague, Co Cork on Christmas Eve 1995.
Mr Kieran and Mr Noel O'Brien are charged with the murder of their mother and three "alternative charges" of manslaughter, assault occasioning actual bodily harm and common assault.
Under a legal direction from Mr Justice John Quirke, their father, Mr Joe O'Brien, has already been acquitted on the charge of murder, but he remains charged with manslaughter, occasioning actual bodily harm and common assault.
Mr Patrick Gageby SC told the jury that his client, Mr Kieran O'Brien, should not be convicted of his mother's murder but "should perhaps" be convicted of her manslaughter. The only issue they had to decide was did his client intend to kill his mother. If the jurors felt he didn't, they must acquit him, Mr Gageby said.
The jurors must also consider whether Kieran was provoked into a state where "he literally blew his top" and carried out "this frienzied attack" on his mother.
The clearest evidence that there was a loss of control and a frenzied attack was in the injuries to the woman and the fact that Kieran "apparently kicked Mrs O'Brien when she was already dead", counsel said.
The jury therefore had two avenues to an acquittal of his client: a lack of intent and the degree of provocation prior to the assault.
Mr Gageby said the jury may have got the impression from the trial that there was an attempt "to do a hatchet job" on the dead woman's reputation. He wanted to scotch that suggestion: "For all her faults, Julia O'Brien was entitled to be free from being beaten and was entitled to her life."
But rather than the "cold-blooded decision to teach Mrs O'Brien a lesson" that the prosecution alleged, all the evidence suggested that she died because her sons lost control that night.
There had been rowing and fighting at a "very high volume" until "the volcano erupted" and Kieran lost control and caught her by the neck so that she was strangled. Kieran O'Brien was "a product" of his family situation and the "effective sober head of the household and the buffer between mother and father and mother and children". This was a case which showed more than any that "violence begets violence".
"For once in his life he did a terrible deed," Mr Gageby said. "He is not a fine fellow. He killed his mother, but that does not mean he is guilty of murder".
Mr David Goldberg BL, for Mr Noel O'Brien, reminded the jury that the three men must be tried separately. They must remember the evidence of the pathologist, Dr Margaret Bolster, that if she had not been strangled Mrs O'Brien probably would have survived. If the State conceded that Noel did not kill his mother, then the jury was only left with the allegation that Noel was part of a common design with Kieran to kill her. There was no evidence of this, Mr Goldberg said.
Noel had been a quiet, submissive boy who had suffered years of verbal abuse and belittling from his mother. He was "a fetcher, a carrier, a purveyor of alcohol for his mother and a person who endured her demands, which were several".
In law there was the "last straw principle", Mr Goldberg said. Noel O'Brien was someone who had simply "endured too much".
"In my view it is an unarguable case that the provocation was such and was over such a long time that it did cause this reaction on the unfortunate night," he said.
Mr Goldberg said the court had been forced to poke through the ashes of Mrs O'Brien's life in an unsavoury way. His client should be acquitted of murder and manslaughter, he said.
Mr Michael McMahon SC, for Mr Joseph O'Brien, said it was not Julia O'Brien's fault that she was an alcoholic, "a disease all too prevalent in Ireland". But the court could not escape the effect of that disease on her family.
Her husband Joe was a "sad pathetic man". Though they lived under the same roof, theirs was a broken marriage, Mr McMahon said. But the prosecution had "scoured" the legal textbooks to come up with the allegation that Mr O'Brien had a legal duty of care to protect his wife and was guilty of manslaughter through gross negligence.
Mr McMahon said this was "a preposterous proposition" which bore "no relation to reality" and was unique in the Irish and English law.
The jury may have felt Joe O'Brien had a moral duty to intervene when his sons were beating their mother. But the prosecution was asking them to find that Joseph O'Brien should have "asserted himself for the first time in 15 years".
Mr McMahon said Julia O'Brien's husband had tried to stop what was happening but when his wife abused him, he turned and went upstairs because that was his normal response.
He said the jury should not go near Mr Joe O'Brien's statement to gardai "with a barge pole" as it was wholly unreliable and "full of Garda-speak". He invited them to acquit his client on all charges remaining against him.
The jury of seven men and five women will retire today.