Corkman fails to overturn conviction for criminal damage on ex-wife's beauty salon

The judge refused to remove the fine as the man "put up a combination of smokescreen, rigmarole and ramesh".
Corkman fails to overturn conviction for criminal damage on ex-wife's beauty salon

Kenneth McCarthy appealed against the conviction he received at Cork District Court and the penalty of €750 fine and four-month suspended sentence.

A beauty salon had its database of appointments, customer information and other matters ‘wiped’ by the ex-husband of one of the owners and he has failed in his appeal against a conviction for causing criminal damage.

Kenneth McCarthy of 13 Iona Hall, Wilton, Cork, appealed against the conviction he received at Cork District Court and the penalty of €750 fine and four-month suspended sentence.

Judge Seán Ó Donnabháin rejected the appeal against the conviction but agreed to remove the suspended jail term, leaving the appellant to pay a €750 fine.

The judge said: “He wants me to believe he went to retrieve other files. Everything points to him clearing – in some way – when he went into the computer remotely. 

I don’t know what he is fighting here (at Cork Circuit Appeals Court) but it is not something that is before the court. 

Alan O’Dwyer, defence barrister, asked the judge if he would remove the fine as well as the suspended sentence and give the defendant, who is aged around 40, the benefit of a dismissal under the Probation of Offenders Act (DPOA).

Judge Ó Donnabháin said: “If he pleaded guilty and accepted his responsibility I would, but he put up a combination of smokescreen, rigmarole and ramesh – he does not deserve a DPOA.” Kenneth McCarthy was required to pay the fine within the next three months.

State solicitor, Frank Nyhan, called co-owner of Seasons Beauty Salon at The Lough, Cork, Paul Bird, who testified that the laptop at the business which he runs with his sister, Emma Bird, was operating perfectly on June 2, 2017, but the following morning the booking system and data on clients were all missing.

“The programme was wiped. I tried to get it back up and running. I believed it was (tampered with) and I made a complaint to An Garda Síochána,” Mr Bird said.

He said it was effectively re-set to factory settings although Windows was still on it.

Mr Bird said Kenneth McCarthy and his sister, Emma Bird, had been married but were split up.

Testimony from computer experts

Detective Garda Pat O’Connor, a computer expert, examined the laptop forensically and found that on the Friday night Kenneth McCarthy had accessed the laptop remotely through Team Viewer and that this time corresponded with the time at which certain information was sent to the recycle bin on the computer.

Mr O’Dwyer, defence barrister, called computer expert, Dr Vivienne Mee, to give evidence and she said it was incorrect to say the computer was ‘wiped’ and also said that without a more detailed examination of the computer it was not possible to say who had caused the changes to the computer.

Mr O’Dwyer BL submitted that Kenneth McCarthy owned the software so he could not be convicted of damaging something he owned.

The judge said the defendant had provided the software for the use by others and he did not accept the defence submission.

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