The jury is expected to go out to deliberate tomorrow in the case of three gardaí stationed in Waterford charged with assault causing harm to a civilian and a fourth officer charged with attempting to pervert the course of justice.
Judge Leonie Reynolds is expected to finish her charge to the five men and seven women at Waterford Circuit Criminal Court in the case of Garda Daniel Hickey, Sgt Alan Kissane, Sgt Martha McEnery and Garda John Burke.
Garda Hickey, Sgt Kissane and Sgt McEnery all deny a charge of assault causing harm to Anthony Holness in the course of attempting to arrest him for a public order offence at New Street in Waterford at around 3am on January 29th 2010.
Garda Burke denies acting with intent to impede the apprehension or prosecution of another and of acting in a manner tending and intended to pervert the course of justice when the State alleges he deliberately switched a CCTV camera away from the arrest.
The jury today heard closing arguments from counsel Mary Rose Gearty SC for Sgt Kissane who said CCTV footage seen by the jury clearly showed most of the punching done to Mr Holness had happened prior to the arrival of Sgt Kissane.
She said that it was also clear from the CCTV footage from the way that Sgt Kissane is looking that he could not possibly have been the person responsible for kicking Mr Holness in the head as he was trying to put handcuffs on him at the time.
She told the jury it had watched the CCTV footage and had seen a graze on the side of Mr Holness’s head but it was obvious that somebody other than Sgt Kissane who had kicked him and punched him repeatedly.
Counsel Iseult O'Malley SC for Sgt McEnery said it would be wrong for the jury to convict her client as it would involve them having to make a huge leap from the evidence that the State had presented against Sgt McEnery.
She said prosecution counsel Michael Delaney SC had invited the jury to start from the premise that because Sgt McEnery had not seen Mr Holness being kicked in the head that she must automatically be lying about what she saw happen.
The State’s case then required the jury to make an impossible leap from that premise to one that says that if she lied about that, then she must also be lying about her own involvement in the incident when she denied assaulting Mr Holness, Ms O'Malley said.
She said that if a man gets drunk and urinates on the street, he will be apprehended by gardaí and if he gets aggressive and curses gardaí and won’t give his name, he will be arrested, and if he resists arrests, he will be handcuffed.
“If you convict Martha McEnery of assault for this, then gardaí are going to have to review how they deal with drunk and aggressive people from now on,,” Ms O’Malley told the jury.
Barrister for Garda Burke, Elaine Morgan BL, said there was a contradiction in the State’s case against her client and it was this - it was only due to his operation of the CCTV camera that charges could have been brought against the two sergeants.
The State had alleged he had deliberately twice switched the CCTV camera away from the incident at New Street at 3.05.40 to conceal the criminal actions being committed by his three colleagues when it is alleged they assaulted Mr Holness, the court was told.
But it was only thanks to operation of the CCTV camera by Garda Burke after 3.05.40 that the State was able to charge the two sergeants while it also provided the State with the bulk of the evidence upon which it was relying to prosecute Garda Hickey.
It was due to Garda Burke’s operation of the CCTV camera that a total of nine punches to the back of Mr Holness’s head, two to three kicks to his body, one stamping on him and one punching to his side were captured on the footage, she said.
“Why did he not switch the camera away from New Street to look down John Street – would this not have been the simple thing to do if he was intent on a criminal cover up as the State alleges?” she asked. The case continues tomorrow.
