The case was heard at Kilkenny Circuit Court
A man who was charged with stabbing another individual in the neck and head has been told he is “free to go” after his case was dismissed due to the unreliability of the complainant’s Garda statement.
Martin Kelly, with an address at 21 Church Avenue, Castlecomer, was accused of assault causing harm and production of a knife in a property on Love Lane in Comer on August 19 of last year.
Mr Kelly pleaded not guilty to the charges and the case was sent forward for a jury trial at Kilkenny’s Circuit Court - which was heard last Wednesday.
Daniel Boland, BL for the Director of Public Prosecutions, told the court that the claims against Mr Kelly were that he stabbed the injured party, Jamie Hennessy, into the head and the side of the neck.
Describing the scenes after the knife attack, Mr Boland said the victim had made his way out on to the street and was “bleeding profusely”.
A jury of seven men and five women were sworn in for the case and had begun hearing evidence from the victim, Mr Hennessy.
Under cross examination, Mr Boland asked the injured party a series of questions about the date in question and his memory of events.
Mr Boland’s responses were that he didn’t remember the events of that day - nor did he remember giving a statement to Gardaí on September - but could “kind of” remember going to Comer to get cider on the date in question.
The prosecuting barrister then asked if the jury could be retired momentarily. Mr Boland and Mr Hennessy were also removed from the courtroom.
Mr Boland then made an application to Judge Patrick Meghen to treat Mr Hennessy as a hostile witness.
He told the court that he had a video of Mr Hennessy’s Garda statement after the incident and he wished to have the statement admitted in evidence.
A lengthy voir dire, a trial within a trial, then ensued in the absence of the jury to determine the admissibility of Mr Hennessy’s statements to Gardaí after he sustained the knife attack wounds last August.
Mr Boland said the complainant was refusing to answer questions about the events on August 19, but senior counsel for Mr Kelly, Garnet Orange, SC, said the injured party was answering questions but was saying he does not remember.
Mr Boland accepted that but said the victim was “giving evidence that was inconsistent with his statement”. The court heard
Mr Hennessy gave a statement to Gardaí at St Luke’s Hospital on September 8 – a total of 20 days after the knife attack.
When Gardaí took this statement from the victim, he was lying in bed, somewhat propped up, and was talking quite low but “seemed coherent”.
When asked what happened to him, he told Gardaí that Martin Kelly “had stabbed him in the neck and back of the head”.
Mr Hennessy said he remembers the two of them getting into an argument and he “cut me and then that was it”. Senior counsel for the defendant, Mr Orange, said the Gardaí had taken a statement from a man “heavily medicated, wired with tubes and three weeks after he nearly died”.
He said the State were “asking for the reliable evidence to be a statement of a man who doesn’t actually remember giving it”.
“He is not refusing to give evidence, he doesn’t remember. He doesn’t remember being in the house. He doesn’t remember being with the people. How I am to cross-examine him on behalf of my client? Mentally, he’s not here for cross-examination,” Mr Orange added.
On September 8, Mr Hennessy wasn’t cautioned but the Garda did read a declaration - which is positioned on top of the document - that the statement is true to the best of the person’s knowledge and belief, prior to the victim signing the statement.
On September 19, Gardaí met with Mr Hennessy again at St Luke’s and brought a camcorder to record the first statement taken on September 8.
The Garda told Mr Hennessy he was doing this in accordance with Section 16 of the Criminal Justice Act 2006.
Section 16 allows for the admission of statements where the witness involved refuses to give evidence, denies making the statement, or gave evidence in court which was inconsistent with the statement sought to be admitted.
In deciding whether the statement is reliable, the court shall have regard to whether it was given on oath, or affirmation or was video recorded.
Senior counsel for Mr Kelly, Mr Orange, asked where in Section 16 the Gardaí are empowered to take a statement and the senior counsel quickly added: “It doesn’t say it at all.”
The video of a Garda dictating Mr Hennessy’s statement was played in court – in the absence of the jury - where the first statement and his account of the events on the date in question were recounted.
In the September 8 statement, Mr Hennessy said Mr Kelly had called him on the phone and told him to call over to the property on Love Lane where Mr Kelly and three other men were drinking.
Mr Hennessy went to the house and at around 7pm, both he and Mr Kelly got into an argument, but he did not know what about.
In his statement to Gardaí, Mr Hennessy said he ran at Mr Kelly and then the defendant cut him. He said he knew the defendant had a blade because Mr Kelly, in the words of Jamie Hennessy, always carried a blade.
He described it as a long black blade, like a kitchen knife.
At the end of the video, Mr Hennessy was asked if he had anything else to add and reacting to the video, Mr Kelly’s defence counsel said: “He replied, ’I can’t really remember much,’ or words to that effect.”
Mr Orange said there was an issue of reliability with Mr Hennessy’s statement on September 8. He said the victim had just had a “near death experience” and had just been through a “traumatic incident”.
He told the court that on September 6, two days before the first statement, Mr Hennessy suffered massive blood loss and two cardiac arrests and was also being tested for brain damage. Gardaí went to Mr Hennessy’s house again on November 16 and
Mr Hennessy told them he could not remember making the first statement but whatever he said was what happened.
On this date, he claimed that he knew “for a fact that Martin Kelly stabbed me in the neck and cut me along the face with a big kitchen knife”.
Mr Boland for the DPP said Jamie Hennessy was badly injured and the Gardaí didn’t just barge in on him, it was “20 days later, he’s first approached”.
He told the court that both statements are coherent and then Mr Hennessy came here to court “and suddenly he doesn’t remember anything...the loss of memory is an inconsistency”.
Mr Boland said the State were entitled to admit statements as Mr Hennessy was “clearly hostile and was clearly not co-operating”.
Defence counsel for the defendant said Mr Boland had not addressed reliability and there was nothing sudden about the victim not remembering as in the interview a few weeks after the incident he did not remember either.
Judge Meghen said he was satisfied the Gardaí did the best they could in the circumstances and that the statement was voluntary.
“However, in the first statement his recollection of the incident was unclear. In his second statement, he said he couldn’t remember the first,” he said.
Judge Meghen also pointed out that when asked in the video on September 19 if he could remember anything else, the victim said he could not, but there was no medical evidence of brain injury before the court.
“The evidence is unreliable rather than hostile. I don’t think it’s fair or possible for him (Mr Hennessy) to be cross-examined,” Judge Meghen concluded.
This meant that the injured party’s Garda statement was inadmissible evidence and could not be put before the jury as part of the case.
Mr Boland asked to be given time to consider the State’s position and after lunch the court heard the DPP had decided “not to proceed with the case”.
The jury was recalled and told that after legal argument the matter was now withdrawn. Judge Meghen discharged the jury and told Mr Kelly he was “free to go”.