A judge has thrown out a case at Tralee District Court for what he described as glaring inconsistencies in Garda evidence.
Judge Philip O’Leary made the judgement in the case of Mark O’Leary, of Park, Knocknagree, Mallow, Co Cork.
He faced three charges in relation to an alleged incident on College Street in Killarney in the early hours of November 28th 2021.
30-year-old Mark O’Leary faced two charges of assaulting members of Kerry Gardaí, and one charge of using threatening words or behaviour during the same incident.
In a previous sitting of the court, held over 10 months ago, evidence was heard from Sergeant Dermot O’Connell and Garda Eddie Walsh.
At the hearing in Tralee District Court, CCTV footage was played to the judge and further state evidence was heard from Garda Peter Devane, Detective James McCarthy, and Sergeant Conor Farrell.
Garda Devane told the court that in the early hours on November 28th 2021, he saw a garda colleague run in the direction of a public order incident.
He said he saw lots of drunken and aggressive behaviour, with a group of three fighting; adding Sgt O’Connell removed one individual from this group and told them to leave the area.
This individual was Mr O’Leary, who Garda Devane then claimed struck Sgt O Connell in the back of the head with his right fist.
Defence solicitor, Frank Buttimer, put it to Garda Devane that it was untenable that a person who assaulted a garda would be told only to move on.
Garda Devane told the court that Mr O’Leary was later arrested further up the street for refusing to cooperate with garda instruction, however, he was not involved in the arrest and had returned to policing duties elsewhere on College Street.
Detective James McCarthy told the judge he arrived in the area in the Garda van after receiving a transport request.
He said upon arrival he saw Garda Devane and Sgt O’Connell with Mr O’Leary.
He added he moved Mr O’Leary into the rear of the Garda van, noting that he was not handcuffed, and told the court he saw something in his left pocket, which he presumed to be a phone and asked him to remove it.
Detective McCarthy claimed the accused kicked out and threw a punching motion at him, before he stood into the back of the van and the pair ended up in what was described as a wrestle.
During the tussle, Detective McCarthy’s Garda fleece was torn, with this shown to the court.
He told the judge that Mr O’Leary headbutted him, before he used an "appropriate closed fist technique" to strike Mr O’Leary and to attempt to break his grasp.
The Garda eventually broke out of the tussle and exited through the side door of the van, which had been opened by Sgt Farrell, and noted Det O’Connell suffering following the discharge of pepper spray at the rear of the van.
Mr Buttimer put it to Detective McCarthy that his clients medical cert showed soft tissue damage and bruising above both hips.
He also put it to him that defence witnesses saw his client dragged from the back of the wagon, handcuffed face down, and beaten with batons; Detective McCarthy refuted this.
Sergeant Conor Farrell gave evidence of observing Detective McCarthy trying to get Mr O’Leary to sit into the back of the Garda van and the scuffle that followed.
He told the court that he entered the side of the Garda van and opened the inner cell door to allow Detective McCarthy exit from the area.
When put to Sgt Farrell if he noticed anything happening outside or at the back of the van after he exited, he said he didn’t see any activity at the rear of the vehicle.
Following conclusion of state evidence Mr Buttimer made an application for the charges to be struck out, adding that the states evidence consisted a such a lack of reliability that it manifested untruth.
Inspector Seamus Ryan disputed this; adding while there may have been inconsistencies in the finer details, the consistencies throughout should bear through to paint the picture of the incident.
Judge Philip O’Leary told the court he appreciated that gardaí had a difficult job to do on a night where Killarney was extremely busy.
However, due to glaring inconsistencies in the state evidence, he was left with reasonable doubt and therefore dismissed all charges against Mr O’Leary.
