Jury to deliberate in case of brothers accused of assaulting uncle

A jury is today expected to begin its deliberations in a case in which two brothers are accused of a serious assault on their uncle at his home almost four years ago.

Beginning his charge to the jury at the Circuit Criminal Court in Tralee, Co Kerry, yesterday, Judge Eugene O’Kelly told them to apply common sense to the evidence and decide what it established.

Robert Kelly, aged 32, of Ogham Rian, Tralee, and Tommy Kelly, aged 34, of Marian Park, Tralee, have denied assaulting their uncle, Gerald Fitzgerald, aged 49, causing him serious harm, at 38 Mitchels Rd, Tralee, on November 8, 2011.

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The month-long trial heard the three men had been drinking in the Grand Hotel, Tralee, and then returned to Mr Fitzgerald’s home where they had more drinks.

Mr Fitzgerald was admitted to Kerry General Hospital with head, brain, and other injuries following a row in the house sometime after 7pm that night. The handle of a tennis racquet had been forcibly inserted into his rectum, the court heard. Judge O’Kelly told jurors they should not allow sympathy, or prejudice, to influence their decision.

He said they should act dispassionately and leave aside all emotion in a “cold, forensic examination” of the facts of the case. He told jurors: “You must act with complete detachment and impartiality.”

Judge O’Kelly said it was up to the prosecution to prove an accused person was guilty and to disprove any defence put forward on behalf of the accused.

“The prosecution must prove its case beyond reasonable doubt. If it fails to do that, the accused is entitled to be acquitted,” he said.

“If you’re not convinced the prosecution proved all elements of the case, then you have a reasonable doubt and you must return a verdict of not guilty.”

They were obliged to try the case on the evidence put before them and nothing else. He said the prosecution would have to prove intent and recklessness in the case and the jury would have to be satisfied beyond reasonable doubt that the accused caused serious harm and intended to do so.

The judge’s charge will continue today.

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