A 72-year-old man on trial for impeding the prosecution of his son for dangerous driving causing death was cleared of the charge yesterday.
Judge Seán Ó Donnabháin directed the jury to find Dan Joe Fitzgerald not guilty following legal argument.
The judge told the jurors that press reports sometimes use the phrase, “dismissed on a technicality”, but he said that would be a misrepresentation of what had happened in this case.
He said the case was not strong enough in law to be put before the jury and he was ordering them to find the accused not guilty by direction of the judge.
Daniel (Dan Joe) Fitzgerald, of Knockeen, Meelin, Newmarket, Co Cork, pleaded not guilty at Cork Circuit Criminal Court to the charge that he impeded the apprehension or prosecution of Shane Fitzgerald, who had committed an arrestable offence of dangerous driving causing the death of Paudie O’Leary on July 1, 2012, at Scrahanafadda, Gneeveguilla, Co Kerry. Shane Fitzgerald was convicted of the offence in 2015.
Ray Boland, defending, submitted that putting the case before the jury would require them to speculate.
Judge Ó Donnabháin said: “This is a significant case and I have given careful attention to the facts. By July 2, 2012 [the day after the fatal incident], Shane Fitzgerald had fled the country. It appears Dan Joe’s car was used in that. By that time there is no State evidence that Dan Joe had any knowledge of the crime or the pursuit.
“By July 6, 2012, Dan Joe was aware Shane was a person of interest. There was no positive evidence that Dan Joe booked a flight or paid for a flight. There is no positive evidence he did that or that he was aware of that… In my view, the defence have to get the benefit of the doubt in relation to that.”
Judge Ó Donnabhain said the prosecution failed to show Dan Joe Fitzgerald was aware on July 2 and 3 that gardaí were looking for his son as a person of interest and thus could not prove the first two debit card transactions were done to impede his son’s apprehension.
The prosecution had put in evidence yesterday a memo of interview with the accused where he was asked to explain the use of his debit card for the purchase of a ticket for his son Shane to travel by ferry from Dublin to Liverpool on July 2, 2012, and the use of the same card to pay for a flight from London to Perth in Australia later that month as well as payment for working visa and related matters.
The memo of interview about payment for these was read to the jury and in response to all questions, Dan Joe Fitzgerald replied: “No comment.”
Those replies were made even after the 72-year-old had been informed that inferences could be drawn from his failure or refusal to answer questions.
John Phelan, defending, suggested that the law related to inferences was difficult for a lay man to understand and that the accused was, “not, to put it mildly, the most polished person on earth”.
Inspector Fergal Foley replied: “He is no fool, he is a very cute man but he is a rough diamond.”
When he was found not guilty on the count against him, Dan Joe Fitzgerald was told he was free to leave Cork Circuit Criminal Court.
Shane Fitzgerald was extradited back to Ireland to face trial for dangerous driving causing death and was convicted and sentenced to six-and-a-half years in jail, with the last year-and-a-half suspended.
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