Tuesday 24 April 2018

Man jailed for killing 'gentle giant' at Christmas in what was described in court as a 'duel'

Gardai at the scene of the death on Rathsallagh Park, Shankill, Co Dublin. Inset: Victim David Spain
Gardai at the scene of the death on Rathsallagh Park, Shankill, Co Dublin. Inset: Victim David Spain

Anne Sharkey

A Dublin man has today been jailed for eight years for killing a man following what was described as a "duel" at Christmas time two years ago.

Wayne Kennedy (34) with an address at Rathsallagh Park in Shankill, Co. Dublin was charged with murdering David Spain (26) on December 26th, 2013 at this address as well as intentionally or recklessly causing serious harm to Sean Turner on the same date.

Last July, Mr Kennedy pleaded not guilty at the Central Criminal Court to both counts.

A jury of 10 men and two women unanimously found Mr Kennedy not guilty of the second count to intentionally or recklessly cause serious harm to Sean Turner.

They reached a majority verdict of 11 to one that Mr Kennedy was not guilty of murder but guilty of manslaughter after deliberating for four hours and 48 minutes.

The court heard that on Christmas evening December 25th 2013, members had arrived at the house of the late David Spain at Rathsallagh Park and stayed there having a few drinks.

David Spain: stabbed to death after going to help a friend
David Spain: stabbed to death after going to help a friend

The trial heard previously that at four or five am there were texts between Sean Turner and Wayne Kennedy and that Mr Kennedy was looking for 50 pounds.

A "straightener" was arranged in which Sean Turner received potentially fatal knife wounds.

The trial heard that Mr Turner ran back in the direction of the deceased's house shouting that he had been stabbed.

It was the States case that Mr Spain ran after Wayne Kennedy and a fight pursued. Counsel for the prosecution, Mr Paddy McCarthy SC said previously, that the deceased threw a number of punches at Wayne Kennedy who had a knife in his right hand and stabbed the deceased six times.

Giving evidence in July (28th) of this year, State Pathologist Professor Marie Cassidy determined the cause of death to be stab wounds to the chest and abdomen.

Following examination, Professor Cassidy identified six stab wounds.

She said previously: "Only two of the stab sounds were deeply penetrating and were  potentially fatal to his internal injuries."

The court heard that apart from the trauma to David Spain's major organs, he lost a considerable amount of blood from his injuries.

Father of the deceased, David Spain Senior told the trial previously that he saw his son on the ground at Rathsallagh Park and that all he could remember was his eyes.

At 8.30am that morning, Mr Spain formally identified his son to the gardai.

In a victim impact statement delivered to the court in November (23rd), Uncle of the deceased, Mr Eamonn Kavanagh said that it was his nephews loyalty that lead to his death.

He said previously: "David is gone from our lives in the blink of an eye - he loved to laugh.".

"He would do anything for anyone - it's this loyalty that led David to his death."

"We will never forgive Wayne Kennedy for killing David - we will never forget Dave and he will live on in each of us until we take our final breaths."

Mr Justice Patrick McCarthy today said that the accused was charged with murder and assault causing harm.

"Mr Turner communicated with the accused on Christmas day in the small hours of the 26th," he said.

"(He came) from a house across the road from the accused. The accused came out of his house carrying a knife for the purpose of a so called straightener. Mr Turner was armed with a stone and threw that at the accused man's head," he said.

"The accused engaged with Mr Turner and ultimately Mr Turner was injured giving rise to the charge - the accused was acquitted of that charge," he continued.

"I cannot ignore the fact that the knife was brought out unlawfully and used on the deceased," he said.

Mr Justice McCarthy said that the accused turned back towards his house when he was pursued by a friend (Mr Spain).

He said gardai had referred to the deceased as a "loyal friend".

He said Kennedy's use of force in self-defence was "excessive".

"The accused was stabbed six times by the deceased," he said.

Mr Justice McCarthy read from the victim impact statement given last month by the deceased mans family.

He read: "We don't deserve this pain, grief and heartache. He (David) would do anything for anyone".

He added that mitigating factors were Kennedy's "submitting to punishment" and his "excellent" behaviour while in custody.

"When he was charged with murder, he did not seek bail - he faced up to the reality.

Submitting to punishment is something the court must regard," he added.

Mr Justice McCarthy described Kennedy's behaviour at Cloverhill prison as "excellent" saying he was employed as a cleaner in the prison and that he was involved in a computer workshop and counselling training programme.

"The question arises as to an appropriate sentence. Every case depends on its own facts," he said.

Mr Justice McCarthy referred to counsel for the defence, Mr Remy Farrell SC, who said that the jury's acquittal for the charge of assault causing harm proved that the jury found (Kennedy's) actions in the case of the assault were essentially lawful.

"Evidence received from Mr Turner (revealed he was) armed as well," he added.

"I do not think any court can ignore the fact that a knife was brought out for anything other than a duel," he said.

Mr Justice McCarthy said that it was with that in mind that he was imposing a sentence of eight years imprisonment.

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