Assault witness fails to give evidence

The absence of “really important” evidence from a witness was a massive piece of the jigsaw that was missing in an assault case, a court heard yesterday.

Final addresses to the jury were given by prosecution and defence barristers at the Circuit Criminal Court, in Tralee, Co Kerry. Neither accused gave evidence.

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

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The trio had been drinking together that day and Mr Fitzgerald was admitted to Kerry General Hospital, Tralee, with head, brain, and other injuries after a row at his home sometime after 7pm. The handle of a tennis racquet had been forcibly inserted into his rectum.

Prosecuting counsel Tom Rice said it was a joint venture between both accused who were equally culpable, irrespective of who struck the blow that caused serious damage. Both were involved in a very violent attack.

He also said “very significant” bloodstains in the kitchen area and an array of weapons found at the scene showed a high level of violence was involved.

Mr Rice said there were some suggestions of provocation, or self-defence, but provocation was no defence for causing serious harm.

Garnet Orange, defending Robert Kelly, said four men were in Mr Fitzgerald’s house after 7pm, but there was no evidence from the fourth — Terence McCormack —who had declined to answer any questions.

It was “one massive piece of the jigsaw” that was missing.

“If you find you need that evidence, the prosecution has not presented its case as it should,” said Mr Orange. “This was really important evidence which has not been presented to you.”

He said while jurors were not entitled to speculate, they could draw inferences. However, they might fall back on speculation about what happened in the house in the absence of Mr McCormack’s evidence.

Mr Orange also said there was no evidence of mobile calls made that evening, no fingerprints had been taken from the tennis racquet and blood on the walls of the kitchen had not been analysed for fingerprints.

David Sutton, defending Tommy Kelly, said Robert had turned on his brother and had tried to exonerate himself. ‘’It’s like the treachery of Cain and Able without the bodies.’’

He also said the jury was entitled to make a reasonable inquiry as to why they had not heard anything from Mr McCormack who had an intimate role in what was said and done in the house that evening.

Judge Eugene O’Kelly will deliver his charge to the jury today.

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