Friday, October 28, 2016

A CASE involving a man from New Ross charged with assault causing harm and producing a glass bottle during a row was dismissed at last week’s sitting of Wexford District Court.

Kevin McHale, 29 Bellville, New Ross, appeared before Judge Gerard Haughton at Tuesday’s court sitting in Ardcavan. He was accused of committing the alleged offences at SuperValu, New Ross, on September 10, last year.

The court also heard that during the course of the row the alleged victim picked up a fish-knife and waved it around and once the altercation ended remained in the store and continued with his shopping.

A number of witnesses gave evidence in the case including Amanda Denieff who works in the supermarket.

She said that at around 5.30 p.m. on the date mentioned she was talking to Kevin Caulfield, and that as she did so: “Kevin McHale and his girlfriend, Shona [Bradley], came around the corner.”

The court heard the two men began rowing and that a fight ensued.

“They ended up on the ground to the right of the counter,” said Ms. Denieff.

She and a work colleague, Martina McCarthy, tried to break up the fight, the court heard.

“Kevin Caulfield put his hand up and said get away,” said the witness.

“At that stage I saw Kevin McHale was bleeding from his nose.”

Ms. Denieff said that Kevin Caulfield went around the counter to her side while the defendant stayed outside it. The judge was told Mr. Caulfield leaned against the fish counter and picked up a knife.

“He was waving it and shouting at Kevin McHale and [he] picked up a bottle with sauce in it,” said Ms. Denieff.

“They were just waving both objects and cursing,” she added.

“Myself and Martina were asking Kevin Caulfield for the knife back and he just kept saying ‘get away’ from him.”

Judge Haughton was told that Ms Denieff managed to grab the knife from Mr. Caulfield’s hand.

Shortly after that a male member of staff came to help and with the situation diffused the defendant left the shop with his girlfriend.

When asked if she was scared when the knife was produced Ms. Denieff replied: “I was terrified that Kevin McHale would get stabbed.”

However, she said she didn’t fear for her own safety: “I knew both of them and I knew they would not have done anything against me.”

The defendant’s solicitor, Gerry Flynn, in cross-examination asked the witness if she was concerned about the bottle in his client’s hand, to which she replied: “No, I wasn’t.”

Martina McCarthy:

The second witness, Martina McCarthy, told the judge that she saw the defendant and Mr. Caulfield hitting each other. She reiterated the evidence of the first witness and said Mr. Caulfield picked up a fish-knife from behind the counter.

“Kevin McHale was still on the other side of the counter and Kevin Caulfield started swinging the knife,” she said.

“He came between the bakery and the deli counter and both myself and Amanda were trying to get the knife off of him,” she added.

“We tried to get someone to stop it [the fight].”

Ms. McCarthy went on to say: “Kevin Caulfield gave the knife to Amanda and Kevin [McHale] and Shona left the shop and Kevin Caulfield stayed in it.”

“I didn’t see who hit the other first,” she added.

Shona Bradley:

Shona Bradley then took to the witness stand and confirmed to Judge Haughton that she had been in a relationship with Mr. Caulfield but they broke up and she met the defendant three months after that.

She said that when she and the defendant entered the supermarket she spotted Mr. Caulfield and they left because she feared there would be trouble.

Ms. Bradley said they later returned to the store and the confrontation took place.

“He put his head into Kevin McHale’s and said something to the effect ‘you will be got’,” she said.

“The two of them were head-to-head and I remember Kevin McHale getting pulled by Kevin Caulfield into the special offers.”

She added: “I thought Kevin McHale’s face was going to go through the butcher’s counter.”

Ms. Bradley went to get the store Manager and said: “When I came back around the corner Kevin McHale’s nose was full of blood and we just left and went home.”

She said she was eight months pregnant at the time and was worried about how the incident might affect her pregnancy.

Garda Brian Flanagan:

Garda Brian Flanagan said he was called to the scene and spoke to Ms. Denieff. He seized the knife and the bottle of sauce – which were produced in court. He said he cautioned Mr. Caulfield outside the store.

“He said he had a row inside,” said Gda. Flanagan.

“While speaking to him I observed he had a small amount of blood on his left leg, below the knee, and teeth marks on his left foot, above his ankle, and a small cut under his left eye.”

The court also heard there was dried blood on his hands.

“That evening I called to the home of Kevin McHale,” said Gda. Flanagan.

“I cautioned him in the usual manner and he confirmed he was in a fight with Kevin Caulfield.”

Judge Haughton was told the defendant had a scratch on his chest, a cut on the top of his head, and cuts to the inside of his lip.

“He also said he had a bloody nose,” said Gda. Flanagan.

A statement given by the defendant to the Gardai was also submitted in evidence to the court.

In it he accepted that fighting in public was wrong but believed he was not threatening towards anyone other than the person he was defending himself against.

On completion of the evidence Judge Haughton said the Section 3 assault charge against the defendant had to be dismissed because the alleged victim wasn’t in court.

Mr. Flynn then put forward a number of legal arguments and applied for a direction in the case.

“The only evidence the court has is the evidence of the witnesses,” he said.

“Are staff not members of the public?” asked Judge Haughton.

Mr. Flynn then commented: “Somewhat spectacularly, the man who brandished the knife continued shopping.”

Superintendent John McDonald, responded by saying: “All three witnesses confirmed a fight took place. They got into a full blown fight in public.”

Supt. McDonald added that the defendant could have left the shop at the point Mr. Caulfield went behind the counter and got the knife.

“Instead, he got a bottle,” he said.

“The CCTV footage [which was shown to the judge] clearly shows them gesturing to each other and I would say, from the point of affray, there is clear evidence of that.”
Supt. McDonald added: “From the CCTV there is clear evidence he had a bottle in his hand but he declined to respond in interview when it was put to him.”

“The CCTV evidence is admissable but not hugely helpful because it’s not continuous and there is no sound to it,” replied Judge Haughton.

“The evidence at this stage is that Mr. Caulfield started the altercation and I will dismiss the Section 3 assault because Mr. Caulfield is not here to give evidence.”.

Judge Haughton then said: “The evidence shows there was possible defence of self-defence but where evidence in a prosecution makes disclosure of [such a defence] it’s a matter for the prosecution to disprove it and not for the defence to prove it.”

Significantly, the judge then revealed that the Criminal Justice Public Order Act “does not define what unlawful violence is”.

“I have to take the case on Ms. Bradley’s evidence that Mr. Caulfield started it and the CCTV does not go far enough for me to exclude self-defence,” he said.

With regard to the defendant picking up the glass bottle, the judge said: “I do not think that was an unusual reaction to someone coming at you with a knife.”

“Yes, Mr. McHale could have fled but I cannot be satisfied he did not do what he thought was reasonable; you are entitled to defend yourself,” he added.

The judge then dismissed the case.