Boxer (31) appeals conviction for hitting woman who ‘threw iron bar at him’

Counsel for Richard Walsh (31) told the Court of Appeal that the trial judge in the case had directed the jury to use objective criteria to decide whether the amount of force used was reasonable, but this objective standard was contrary to the law.

Walsh, of Congress Villas, Dungarvan, Waterford, was convicted by a jury of assault causing harm at Kilrush Park, Dungarvan, on November 30, 2020, and sentenced by Judge Eugene O’Kelly at Waterford Courthouse to two and a half years with the final 12 months suspended.

Defence counsel Giollaíosa Ó Lideadha SC said that the appellant had been walking when a metal pole was thrown at his head, which made contact.

Walsh believed this had been thrown by the victim, so he went back to remonstrate with her and pushed her as he said she was behaving aggressively.

Defence counsel said that Walsh did this in anticipation of further violence.

Mr Justice John Edwards noted that Walsh had been armed at this point while the victim was unarmed, and he was also an adult male who was stronger and in a better position in a one-to-one situation to look after himself.

The judge also said that Walsh had an opportunity to retreat.

Mr Ó Lideadha replied that in his charge to the jury, the trial judge had said that an objective test was to be applied as to whether Walsh used more force than was reasonable, however what he should have said was that this was also a subjective test in that the jury had to consider whether Walsh honestly believed that he had used reasonable force.

“A person is entitled to say that I’ve just been brutally beaten with a weapon and although the attacker has dropped it, they are still making aggressive noises,” said Mr Ó Lideadha, adding that a person was entitled to defend themselves.

Mr Justice Edwards said that the incident happened at an arranged physical fight between two men.

The judge said the victim was a supporter of one of the men, was “mouthing off” after the fight had finished and threw an iron bar at Walsh, which he picked up.

“He could have retreated and left the scene, but what he does is advance on her as she continues to mouth off, strikes her with his hand and knocks her to the ground,” said Mr Justice Edwards.

“If an attacker attacks an accused person with a weapon and is disarmed and continues to do and say things that are of a threatening character, a person may be entitled to use force to repel further violence,” said Mr Ó Lideadha.

A further ground of appeal put forward by defence concerned footage of the incident that was recorded on a mobile phone.

Mr Ó Lideadha said that this video excerpt did not show the full incident.

Mr Justice Edwards said that this was a prearranged physical fight with a large number of spectators, so Walsh was not in a situation where the video footage was the only evidence available to him.

Mr Ó Lideadha said that the defence did not have the identity of the individual who recorded the footage, nor could they test if the footage had been edited.

Conor O’Doherty BL, for the State, said that the trial judge had told the jury that they had to first put the use of force in a subjective context and then determine if the force used was objectively necessary.

“When you look at the charge, it was clear to the jury that every assessment they had to make was in those subjective circumstances,” he said.

Mr O’Doherty said that Walsh was a known boxer who was in the defence forces, meaning there had been a large disparity in size between him and the female.

He said that the “critical portion of the interaction” was captured on the video footage, which showed Walsh walking back to the victim.

“Was it credible that he perceived a threat as he walked towards the victim?” asked Mr O’Doherty.

Mr Justice Edwards said that the court would reserve judgement in the matter.