Wednesday 29 March 2017

Murder charge against Mahon was undermined by State's own witness

Jury convicted stepfather of manslaughter after concluding that Dean's death was no 'accident', writes Eimear Cotter

Dave Mahon and Audrey Fitzpatrick, mother of Dean Fitzpatrick, arriving at The Criminal Courts. Photo: Tony Gavin
Dave Mahon and Audrey Fitzpatrick, mother of Dean Fitzpatrick, arriving at The Criminal Courts. Photo: Tony Gavin

Eimear Cotter

The State's murder case against Dave Mahon was unhinged by the utter disparity between the assertions of the lead prosecuting barrister and the State's own pathologist.

The State opened the case with all guns blazing, when prosecution counsel Remy Farrell SC claimed that "Dean Fitzpatrick was gutted" by David Mahon.

Mr Fitzpatrick is the brother of 15-year-old Amy Fitzpatrick, who went missing in Spain in 2008.

Mr Farrell told the jury that the prosecution case was that Mahon intentionally stabbed the 23-year-old in the stomach following an argument outside the apartment Mahon shared with Dean's mother, Audrey, at Burnell Square, Northern Cross, off the Malahide Road in Dublin.

Mr Fitzpatrick ran off, collapsed nearby and was tended to by strangers. He suffered massive internal bleeding and died the following morning.

Mr Farrell said that Mahon (45) tried to flee the scene. However, he told a friend and another man what had happened and eventually went to the gardai.

"Mr Mahon suggested to gardai it had been an accident, that he had taken the knife off Dean Fitzpatrick and Mr Fitzpatrick had walked into it, impaling himself," said Mr Farrell. "At one point, he muses that Mr Fitzpatrick was suicidal."

Mr Farrell told jurors they would have great difficulty reconciling that account with the victim's injuries.

"There was a piece of intestine protruding", he said. "In common terms, he had been gutted."

All this must have sounded horrific to the jury.

The problem is that it wasn't backed up by the crucial evidence of the senior pathologist who carried out the port mortem.

The pathology evidence rubbished the prosecution's assertion that Mr Fitzpatrick had been "gutted".

Deputy State Pathologist Dr Michael Curtis told the jury that Mr Fitzpatrick died from a single stab wound to his stomach.

The wound, which was between 12.5cm and 14.5cm in depth, transfixed the aorta, the body's main blood vessel, and stopped at the spine.

Dr Curtis could not tell if the wound had been inflicted with a deliberate thrust of a knife or if Mr Fitzpatrick had "run on" to a knife being held by someone else.

Cross-examined by Mahon's defence counsel, Sean Guerin SC, Dr Curtis said there was no evidence of twisting of the knife, nor was there any lateral movement or "slicing" of the knife.

Mr Guerin asked Dr Curtis, who the jury heard had a keen interest in hunting and fishing, if Mr Fitzpatrick had suffered a "gutting". The pathologist agreed he knew "what a gutting was" but added: "What Mr Fitzpatrick suffered was not a gutting."

Much was made of this by Mr Guerin during the trial. He described prosecution claims that Mr Fitzpatrick had been gutted as "plain wrong" and "a gross exaggeration" as well as a "flight of rhetorical fancy in the opening of the case".

Mr Guerin also claimed that it was "an exaggerated description to disgust the jury" and turn them against Mahon by portraying him as "some kind of butcher or savage that had gutted Dean Fitzpatrick".

Mr Guerin repeatedly expressed his astonishment that no one had ever asked Dr Curtis prior to the trial if Mahon's account of what happened, what Mr Guerin called accidental self-impalement, could have been true.

He claimed that Dr Curtis had "no difficult reconciling Mahon's account of what happened with the science".

So on what basis then did the jury, by a 10-2 majority, decide that Mahon was not guilty of murder but guilty of manslaughter?

From the jurors' questions to the judge, which centred around the legal definitions of manslaughter, recklessness and assault, it seems reasonable to suggest that murder was dismissed as a possibility early on in their deliberations.

In his closing argument, Mr Farrell told the jury that Mahon "cooked up" a story for gardai, telling them the "farcical story" that Mr Fitzpatrick had "walked into the knife".

He said the reality was that Mahon stabbed his stepson and then set about doing everything he could to try and "get away with" it.

However, if Mahon did "cook" up a story, then there were a number of flaws in it.

He rang gardai the morning after Dean's death and told an officer: "It was me that did it. I didn't know he was dead. I just heard it on the news this morning."

He then went to Coolock garda station, where he was interviewed five times by gardai.

During the interviews, he told gardai that Mr Fitzpatrick called up to his apartment and the pair argued.

He said Mr Fitzpatrick pulled a knife on him in the kitchen, but that he took it off him and put it in his back pocket.

He said his friend John McCormack then took Dean out of his apartment and he followed them.

Mahon claimed that he pulled the knife from his pocket and said to Dean: "Why are you pulling a knife on your auld fella?"

He said that Mr Fitzpatrick walked into the knife and he knew that he had nicked him, but Dean ran off down the stairs and he "didn't think it was that serious".

Mahon told gardai: "I didn't stab him, he walked into the knife."

The next thing Mahon claimed he remembered was being in a taxi with his friend Karl O'Toole and throwing the knife out the window.

Asked why he threw away the knife, he told gardai: "Don't ask me, I don't know why."

The problem for Mahon was that his friend Karl O'Toole contradicted this story, telling the jury that shortly after Mr Fitzpatrick had been stabbed, Mahon told him: "Dean is dead."

This makes a lie of Mahon's assertion to gardai over the phone that: "I didn't know he was dead."

In his evidence, Mr O'Toole said that Mahon followed Dean out of his apartment and when he came back he was holding a knife.

He said Mahon was "very agitated" and said to him: "You have to get me out of here. I have to go."

Mr O'Toole said they got into his taxi and he was "just driving" and trying to find out what had happened.

He said Mahon then told him that he thought "Dean is dead" and "the knife went through him".

The pair then drove to the house of Mahon's father, Mick. Mr O'Toole said Mahon told his father that "Dean came at him and he ended up being stabbed."

In the immediate aftermath of the stabbing, Mahon did not suggest to either his father or Mr O'Toole that what happened had been a "terrible and wholly innocent accident" - a point that was emphasised by Mr Farrell, who said that story had been "cooked up" later for gardai.

Mr O'Toole also said that Mahon told his father that Mr Fitzpatrick had been sending him threatening text messages for the previous three or four days.

However, mobile phone records made a liar out of Mahon as they revealed that in fact it was he who had sent a text to Dean earlier on the Saturday, threatening to stab him.

Mahon was also caught out in a lie that he told to gardai about Sarah O'Rourke, Dean's girlfriend.

Interestingly, his barrister claimed what Mahon made was a "mis-statement", rather than a lie, because he believed what he was saying at the time. Mahon flatly denied to gardai that he had spoken to Ms O'Rourke on the night of Dean's death.

However, phone records showed six calls to her on the Saturday night.

In her evidence, Ms O'Rourke said Mahon rang her, wanting to talk to Dean. She told him they were fighting and that Dean was probably at the home of his father, Christopher.

She said Mahon became aggressive on the phone, saying: "Sarah, put him on." She replied: "He's not here, Davey."

Mahon then threatened to "come to Lusk and stick a knife in her neck".

Mahon told gardai he was "100pc certain" that he had not been in contact with Ms O'Rourke.

He said he "never screamed abuse at her" and to suggest otherwise was "bullsh*t".

He then claimed that his wife Audrey used his phone at times. The jury obviously didn't buy it.

They had, in black and white in front of them, a printout of all the phone calls and texts sent and received by Mahon on the day Mr Fitzpatrick died. Mobile phone records don't lie.

Both these incidents - telling Mr O'Toole that "Dean is dead" and denying speaking to Ms O'Rourke - must have raised questions in the minds of the jury about Mahon's credibility.

After eight and-a-half hours of deliberations, a majority of the jury rejected Mahon's story and concluded that he had unlawfully killed his stepson.

Ms Justice Margaret Heneghan remanded Mahon in custody until May 30 when his sentencing hearing will take place.

Mahon told gardai during interview, "It's selfish but I don't want to go to prison. I'm not built for prison".

He and his loyal wife Audrey will have to wait another three weeks to find out his fate.

Sunday Independent

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