Stephen Bourke
A man has been acquitted of assaulting a Garda in the back of a patrol car, after arguing the officer damaged her own hand by beating him while he was handcuffed.
A jury at the Dublin Circuit Criminal Court cleared Philip Kavanagh (34), of Cherry Orchard Drive, Ballyfermot, Dublin of a charge of assault causing harm to Garda Theresa Moore at Aylward Green, Cappagh Road, Finglas, on January 7th, 2017.
However, he was convicted by a majority verdict of 10-2 of the lesser charge of common assault on her colleague, Garda Conor Mohan, when they went to his door to investigate a disturbance at the supported housing complex where he lived with his partner and children. He had denied both offences.
Garda Mohan told the court on Tuesday that Kavanagh was drunk and aggressive when he answered the door and refused to let the officers in – telling them: “You’ll have to take me out.”
“The hand went from down beside him and [into] I believe a punching stance to lash out at Garda Moore,” he said.
'Heard a pop'
Garda Mohan arrested him and handcuffed him behind his back – and the two officers took him off to put him in a patrol car.
He was put in the back seat and Garda Moore got in beside him.
She told the court on Tuesday that Kavanagh resisted her attempts to restrain him during the short journey to Finglas Garda station, and started throwing his head back.
“The second or third time that Mr Kavanagh went to lunge back, his head connected with my hand. I felt instant pain and heard a pop.”
Doctors found she had suffered “a blunt injury to the right hand with pain in her little finger,” said Eoin Lawlor BL, prosecuting, as he entered the medical record into evidence.
Fractured
“On examination it was found to be clinically dislocated with normal sensation. Her subsequent x-ray showed a fracture at the base of her fifth right metacarpal.”
Kavanagh disputed Garda Moore’s explanation for the injury when he was arrested two weeks later over the incident.
In a statement read to the court on Wednesday, he said Garda Moore grabbed him by the back of his neck and then climbed on top of him in the back seat of the car.
“I managed to get my head free and up onto my knee,” he said, adding that he was in pain but did not want to admit it.
“For the two to three minutes it took to get to the station, that guard battered me about,” he said.
He said he sustained a black eye, “ligature marks from the cuffs”, and whiplash.
'I never assaulted a guard in my life'
The interviewing Garda asked him if he was aware Garda Moore had been injured.
“That’s absolutely shocking if she suffered an injury in the line of duty,” he said. “I never assaulted a guard in my life.”
“Is it possible that due to your actions and movements in the back of the car you caused the hand injury?” he was asked.
“No,” he said.
In his closing speech, John Moher BL, defending, said it was “troubling” that the two gardaí in the case had given “differing accounts”.
Evidence 'fatally undermined'
He said the suggestion by Garda Moore that they had “struggled” to remove Philip Kavanagh from the courtyard “is not borne out by the footage” – arguing that her evidence was “fatally undermined”.
“The section 3 assault charge stands or falls on the evidence of Garda Moore.”
He said the jury should “weigh up the evidence of size, girth and so forth” between Kavanagh and Garda Mohan in considering the common assault charge.
“Garda Moore says she was doing her best to restrain him and he lashed out. In the interview, there’s an explanation consistent with his innocence,” said Judge Martin Nolan.
“It’s a very human case, isn’t it?” he told the jury. “It’s about human behaviour, and I’ll leave it in your hands.”
Judge Nolan thanked the jury for their service, and adjourned the case for sentencing on July 26th, next.
