Limerick man who appealed conviction for machete attack will not have legal costs paid by state

A RATHKEALE man whose conviction for attacking a pensioner with a machete was overturned due to the failure by gardaí to seek out CCTV footage will not have his legal costs paid by the State, which was justified in carrying out a prosecution, the Court of Appeal has ruled. 

“The failure of the guards to carry out a proper CCTV investigation does not result in a requirement to grant the appellant his costs in this matter,” said Ms Justice Tara Burns on Thursday rejecting an application by John O’Donoghue (55) for legal costs incurred during both his original trial and his subsequent appeal against conviction.  

Mr O’Donoghue, of Lower Main Street, Rathkeale, was convicted at Limerick Circuit Criminal Court in November 2021, of assault causing serious harm to Willie O’Driscoll Sr, who was then aged 74, in Bothar Buí, Rathkeale, Co Limerick, on December 17, 2017.  

He was also convicted of violent disorder on the same date and location during an incident between two families. 

A jury unanimously convicted Mr O’Donoghue on the assault causing serious harm and on the violent disorder charge but found him not guilty of a charge of the production of an article – a machete – during the course of a dispute and of making threats to kill. 

He had pleaded not guilty on all counts.  

The trial heard that Mr O’Driscoll Snr sustained very severe injuries during the incident, claiming that he sustained them as a result of Mr O’Donoghue attacking him with a machete.

However, Mr O’Donoghue  asserted that the injuries were sustained by Mr O’Driscoll Snr as a result of Mr O’Driscoll’s son attempting to attack Mr O’Donoghue and Mr O’ Driscoll Snr getting caught up in this attack.  

Mr O’Donoghue was sentenced to 10 years’ imprisonment for assault causing serious harm and to a concurrent eight-year term for the violent disorder offence.  

After spending two years in jail, Mr O’Donoghue subsequently successfully appealed the conviction on the grounds that “vital” CCTV had not been harvested by gardaí and that a garda notebook had not been disclosed until during the trial, when the relevant garda was already giving evidence in the witness box.  

He went on to make an application for his legal costs, with barrister Michael Bowman SC arguing that the appellant was entitled to costs both from his trial and his subsequent appeal as he had been required to pursue an appeal to vindicate his right to a fair trial in a process that was “flawed from the investigation stage”.  

In delivering the Court of Appeal’s ruling, Ms Justice Burns noted the appellant successfully argued that the failure by the investigating gardaí to harvest CCTV evidence resulted in him being deprived of a realistic prospect of a defence.   

“It is not in dispute that the appellant was at the scene of this event; that he arrived at the scene in the company of several men; that they had arrived in a car and a people carrier; and that Mr O’Driscoll Snr suffered extremely serious injuries from the events in question,” said Ms Justice Burns.  

While the court had been critical of the failure by the investigation team to conduct a proper investigation into the existence of CCTV footage at the location of the incident, Ms Justice Burns said that this did not equate with the investigation giving rise to a serious inherent doubt as to the guilt of the accused.  

Although the appellant’s convictions in respect of assault causing serious harm and violent disorder have been quashed, Ms Justice Burns said that it was not in dispute that on the morning in question the appellant arrived at the location in the company of several family members and that a melee of some description occurred. She said the court believed the prosecution against the appellant was justified.  

“Whilst the appellant is entitled to the presumption of innocence in respect of the two charges he had been convicted of, the finding of this court does not involve determining the factual issues which arose in the case and most certainly does not equate with the court rejecting Mr William O’ Driscoll Snr’s version of events or accepting the appellant’s,” she said.  

The judge noted that while Mr O’Donoghue had indicated that he himself had been assaulted and his hand was bandaged, he failed to give an account of what he claimed occurred until witnesses were cross examined in the course of his trial. She said that had a proper CCTV investigation taken place, what actually occurred could have been established, but in the absence of this, the appellant was deprived of a realistic prospect of a defence.  

Ms Justice Burns said that the issue of the appellant having spent two years in custody was not a matter of relevance with respect to any decision on costs. 

Although it had been asserted that over this two-year period, the appellant was deprived of making a livelihood, she said that no evidence had been given as to the nature of the appellant’s employment or business or how funding the defence of this case had impacted on him.  

Ms Justice Burns ruled that the failure of the gardaí to carry out a proper CCTV investigation did not result in a requirement to grant the appellant his costs in this matter, nor was the court minded to grant him the costs of his appeal. 

In those circumstances, the court rejected his application.