A man charged with assault during a soccer match in Kilkenny has had his case dismissed.
Mark Fitzpatrick with an address at 12 Oakfield Green, Riverstown, Glanmire, Cork was charged under Section 3 of the Non-Fatal Offences Against the Person Act.
He was alleged to have assaulted Shane Phelan on February 22 of 2016 causing him harm at Scanlon Park, Kilkenny.
Mr Phelan, who is originally from Durrow, was playing in the position of right back for his soccer team, the Valley Ramblers, on the date in question.
His team were playing a team called Supertroopers and in giving evidence, Mr Phelan said the only thing he remembers from the incident is the accused, Mr Fitzpatrick, controlling the ball with his right hand and scoring a goal.
After the incident, he went to St Luke’s Hospital where it was discovered he suffered multiple fractures to his face and nose with the majority of injuries occurring on the left side of his face from the eye down to the nose.
At a hearing on July 10, the court heard from John Martin, who was refereeing the game on the night in question.
Mr Martin said the defendant cushioned the ball with his hand and he blew the whistle and awarded a free out to Valley Ramblers.
He started to move out the field and when he turned and looked back he saw Mr Fitzpatrick disentangling himself from the net and Mr Martin said that Mr Fitzpatrick collided with the Valley Ramblers goalkeeper.
He gave Mr Fitzpatrick a yellow card for the collision while the other teammates started shouting that there should have been a red.
“What I saw didn’t cause that, it didn’t cause the injury (Mr Phelan) received,” he said. After Mr Fitzpatrick scored the goal he continued across the goal to celebrate and ended up in the side-netting before he collided with the goalkeeper.
Mr Martin said the offence “didn’t merit a red card” as a red card was for “serious foul play or violent conduct”.
“To me, neither of those things happened,” he said.
The court heard that what happened was a reckless challenge and when asked by the solicitor for Mr Fitzpatrick, Edward Hughes, if it was unintentional, Mr Martin said: “I couldn’t say that.”
After he blew the whistle, he turned to go back up the field and Mr Martin was asked if there was a possible incident he didn’t see, but Mr Martin replied that he looked over his shoulder to run backwards and it was only for a matter of “seconds or milliseconds”.
Judge Colin Daly queried why he gave the card to Mr Fitzpatrick and he said it was for the “”careless challenge on the goalkeeper”.
Mark Fitzpatrick also gave evidence and he described the incident and he said the ball came in low and he went down to header it and after he scored he went to celebrate but was pushed with an elbow down into the goal post. “If I handballed it I don't know,” he said.
“I was blown with a shoulder into the post and became tangled in the net. To me at that time I didn’t think I hit anyone. I didn’t feel any collision.”
A witness for the defence, Sean Fleming, was on the sidelines on the night in question and he said Mr Phelan pushed Mr Fitzpatrick into the goal post and that was the momentum which saw the goal posts move in CCTV footage shown in court.
Mr Fleming said Mr Fitzpatrick got tangled and in coming out of the netting there was an “accidental collision”. At a previous hearing on March 6, the court heard from Joey Webster, a teammate of Mr Phelan and he was playing left back on the date of the incident.
In his evidence, he described the alleged assault as a “superman punch”.
He said that Mr Fitzpatrick “jumped in the air and threw a punch and Shane’s head went back”.
“Shane’s right hand side of his face hit the goal post as the momentum of the box put him into it,” he said.
Mr Hughes said there was no definite evidence of an intentionable assault.
Mr Carton argued that his was an “off the ball incident” as the whistle had been blown and the injuries sustained by Mr Phelan were “not possible by the actions Mr Fitzpatrick says happened”.
Judge Daly said there was no doubt that Mr Phelan suffered serious injuries and multiple fractures but the question was whether Mr Fitzpatrick recklessly or intentionally committed an assault on the alleged injured party during the incident on the date in question.
The Judge said Mr Martin’s evidence was that he did not witness any serious foul play on the night. Referencing the other witnesses, Judge Daly said there was a “degree of confusion” amongst their version of events and all witnesses had “varying accounts”.
He added that he must give “significant weight” to the referee’s evidence as he was an “impartial observer” on the night. He ruled that the State had not proven beyond a reasonable doubt that the assault took place and he dismissed the case.