A former garda appealing against his conviction for perverting the course of justice has had his bail application rejected at the Court of Criminal Appeal.
John Burke (aged 39) was sentenced to two years with one year suspended by Judge Leonie Reynolds after a Waterford Circuit Criminal Court jury found him guilty on two counts relating to perverting the course of justice.
He had pleaded not guilty to acting with intent to impede the apprehension or prosecution of another and acting in a manner intending to pervert the course of justice.
The court heard that the charges arose from the assault of Anthony Holness (aged 38) by two other gardaí in Waterford on January 29, 2010. It was the first case brought by the Garda Ombudsman to come before a jury.
The jury found that CCTV cameras under the control of Burke were moved away from the incident in a deliberate design to cover up and conceal the assault of Mr Holness by other gardaí as they arrested him.
Presiding judge Mr Justice Donal O’Donnell said that in order to succeed in a bail application before the Court of Criminal Appeal, a person convicted by a jury is required to put forward a very strong case and show that their grounds for appeal have a strong chance of success.
He said that the court did not have the necessary “degree of confidence” that the grounds of appeal raised by Burke were strong enough to permit his release on bail.
Mr Justice O’Donnell said that it was not desirable to put the matter any further and added that the court was not expressing any views on the ultimate outcome of the appeal.
Counsel for the applicant, Ms Mary Ellen Ring SC, told the court that Burke accepted he was the officer in charge of operating the cameras but contended that the movement of the camera was accidental rather than deliberate.
She said the Court of Criminal Appeal would be asked to adjudicate on the issue of Burke’s intent to pervert the cause of justice and the guidance given by the judge to the jury on this matter.
Ms Ring told the court that the prosecution of Burke on the same evidence for one offence under common law and one under a statutory basis amounted to “double jeopardy”; the prosecution of an accused twice on the same facts.
Mr Michael Delaney SC, for the State, said it was difficult to see what lawful grounds Burke could have had for moving the camera and his defence of accidental movement was “quintessentially” a matter for the jury, who had decided against him.
He said that the applicant had raised a broad criticism of the trial judge’s charge without any specific outline of what ought or ought not to have been said.