A 44-year-old man has walked free from court after a judge directed a jury to find him not guilty of assault causing serious harm to his wife after she refused to give evidence against him.
Anthony Kelleher, from Curraheen, Raleigh North, Macroom, Co Cork, denied assault causing serious harm to Siobhán Kelleher (39) at their home on June 12th, 2014, when he was arraigned at Cork Circuit Criminal Court.
Ms Kelleher, who walked to the witness box with the aid of a stick, told Judge Brian O’Callaghan that she did not wish to give evidence in the case. She assured him that she had not been coerced or bullied in making the decision.
“It’s entirely my own decision,” said Ms Kelleher, who was brought to court on foot of a bench warrant after failing to appear on Monday for the opening of the case.
Alice Fawsitt SC, prosecuting, applied for the abandonment of the prosecution on foot of instructions from the Director of Public Prosecutions.
However, Ciaran O’Loughlin SC, for Mr Kelleher, applied for a direction from the judge to instruct the jury to find his client not guilty.
He pointed out that this was his client’s third appearance before a jury on the charge. He was first convicted in February 2016 and three months later was sentenced to eight years in jail. He had the conviction set aside by the Court of Appeal in October 2016.
Show up
He was then been arraigned again before last February for a retrial only for Ms Kelleher not to show up. The case was then adjourned until this week.
Judge O’Callaghan noted that the case resulted from an alleged assault which happened exactly four years ago and Mr Kelleher had been arraigned on the charge before a jury on three separate occasions.
He said that the court had to take the view that “enough was enough and there must be finality to proceedings.
“I note the prosecution have made substantial efforts to bring this matter to trial but sometimes one’s best efforts are not good enough,” he said.
Judge O’Callaghan said he had to look at the matter in a global manner in terms of fairness and he acknowledged Mr Kelleher had spent five months in custody between his conviction and successful appeal. He said that directing the jury to find him not guilty was the appropriate order.
Emphasised
Opening the case for the prosecution on Monday, Ms Fawsitt had given the jury of nine men and three women an outline of what she anticipated the evidence would be in the case but she emphasised the point that the outline was not in itself evidence.
"At 18.49 on June 12th, 2014, a 999 call was made by Mr Kelleher requesting an ambulance, stating that Mrs Kelleher had fallen down the stairs and was unconscious and that she had her tongue between her teeth and seemed to be bleeding very heavily," she said.
Ms Fawsitt said that the state would allege that Mr Kelleher told ambulance control that his wife fell “four or five feet” and that the fall was caused by drink.
Ms Kelleher was put in an induced coma for several days and when she came around, it was found she had a stroke, a liver laceration, lung collapse, fractured vertebrae, fractures to her left wrist and right little finger, bruising to her left leg, buttocks and both ankles, and abrasions to her forehead.
Ms Fawsitt said the hospital became concerned that those injuries were inconsistent with the description of how they had been sustained so gardaí were contacted. Following their investigation the DPP directed that Mr Kelleher be charged with assault causing serious harm.
