Husband 'not guilty' of assaulting wife after she refuses to testify
Macroom man had previously been jailed for eight years
A 44 year old Mid Corkman has walked free from court this week after a judge directed a jury to find him not guilty of assault causing serious harm to his wife after the woman refused to give evidence against him.
Anthony Kelleher, a fitter from Curraheen, Raleigh North, Macroom, had denied assault causing serious harm to his 39 year old wife, Siobhan, at their home outside Macroom on the evening of June 12, 2014 when he was arraigned at Cork Circuit Criminal Court on Monday.
But on Tuesday, Mrs Kelleher, who walked to the witness box with the aid of a stick, told Judge Brian O'Callaghan that she didn't wish to give evidence in the case and she assured him that she had not been coerced, intimidated or bullied by anyone into not testifying.
"It's my own decision," said Mrs Kelleher, who was brought to court on foot of a bench warrant after she failed to appear in court on Monday afternoon for the opening day of the case and she re-iterated that she simply did not wish to give evidence against her husband.
Prosecution counsel Alice Fawsitt SC applied for a nolle prosequi or formal abandonment of the prosecution on foot of instructions from the DPP but Mr Kelleher's counsel, Ciaran O'Loughlin SC, applied for a direction from the judge to instruct the jury to find his client not guilty.
Mr O'Loughlin pointed out that this was his client's third appearance before a jury on the charge, being first convicted in February 2016 and three months later he was sentenced to eight years in jail before successfully having the conviction set aside by the Court of Appeal in October 2016
He had then been arraigned again before a jury last February for a retrial only for Mrs Kelleher to again fail to show up and the case had been adjourned until now when the current jury was sworn in to try him and he now deserved some finality, which a not guilty verdict on direction would bring.
Judge O'Callaghan noted that the case resulted from an alleged assault which happened exactly four years ago on Tuesday and Mr Kelleher had been arraigned on the charge before a jury on three separate occasions.
He said that the court had to take the view that "enough was enough and there must be finality to proceedings. I note the prosecution have made substantial efforts to bring this matter to trial but sometimes one's best efforts are not good enough."
Judge O'Callaghan said he had to look at the matter in a global manner in terms of fairness and he acknowledged Mr Kelleher had spent five months in custody between his conviction and successful appeal and he believed that directing the jury to find him not guilty was the appropriate order.
Opening the case for the prosecution on Monday, Ms Fawsitt had given the jury of nine men and three women an outline of what she anticipated the evidence would be in the case but she emphasized the point that the outline was not in itself evidence.
"At 18.49 on June 12, 2014, a 999 call was made by Mr Kelleher requesting an ambulance, stating that Mrs Kelleher had fallen down the stairs and was unconscious and that she had her tongue between her teeth and seemed to be bleeding very heavily," she said.
Ms Fawsitt said that the state would allege that Mr Kelleher told ambulance control that his wife fell "four or five feet" and that the fall was caused by drink but when doctors at Cork University Hospital examined her, they found her injuries were not consistent with such a fall.
Mrs Kelleher was put in an induced coma for several days and when she came around , it was found she had a stroke, a liver laceration, lung collapse, fractured vertebrae, fractures to her left wrist and right little finger, bruising to her left leg, buttocks and both ankles, and abrasions to her forehead.
Ms Fawsitt said the hospital became concerned that those injuries were inconsistent with the description of how the injuries were sustained so gardaí were contacted and, as a result of their investigation, the DPP directed Mr Kelleher be charged with assault causing serious harm.
During Mr Kelleher's first trial at Cork Circuit Criminal Court in February 2016, Mrs Kelleher was called as a witness for the prosecution against her husband but she told Judge Sean O Donnabhain she wanted to withdraw her complaint.
Mrs Kelleher repeatedly said that she was not giving evidence before she stood down from the witness box and the state then applied to have her statements to gardai read into evidence which Judge O Donnabhain allowed following legal argument in the absence of the jury.
In her first statement made on June 16th 2014 from her hospital bed at Cork University Hospital, Ms Kelleher told Det Sgt Joanne O'Brien told how she was at home having a glass of wine to calm her nerves before her husband came home when they had a row and he attacked her.
"He started ranting and raving and said I was staggering around. I went to bed for an hour. Anthony dragged me out of bed by the hair and threw me across the corridor and down the stairs. The next thing I knew I woke up in hospital," she said in her statement.
A native of Lixnaw in Co Kerry, Mrs Kelleher told in a second statement to gardai how the row started when her husband expressed his dissatisfaction with the meal that she had prepared for him when he came home.
"We were having pork chops that day. I put the dinner on the table. He complained that the pork chops were cooked in the oven. He wanted them fried. He is a perfectionist. He never says thanks. I went to bed and covered my head with the blankets.
"He came after me and asked me what did I say? I said, 'Nothing, I'm sorry.' I put my hands to my face to save my head. I didn't want bruises. "I had my hair in a ponytail and he pulled me out of bed by the ponytail. There were clumps of hair coming out.
"He dragged me by the hair and threw me downstairs and kicked me on the way down. I got to the first landing and he kicked me the rest of the way down. I was out cold and I don't remember anything else until I woke in hospital with a tube down my throat.
"Anthony came in to the hospital with my slippers and pyjamas. He started crying and said, 'If you had died I would have thrown myself in the river'. I couldn't look at him," she told gardai before making a third statement ten months later where she withdrew the previous two statements.
Mr Kelleher did not go into the witness box during his original trial but he did make statements to gardai which were also entered into evidence in which he said he believed that his wife had a drink problem.
"Siobhán fell down the stairs at our home. She smokes an odd cigarette now and again. She would get very unsteady on her feet… if she has a cigarette. (Later) She fell against the wall," said Mr Kelleher, later denying to gardai that he ever hit, kicked or threw his wife down the stair.
Judge O Donnabhain noted that Mrs Kelleher had refused to give evidence in the case against her husband but there was medical evidence that supported statements she made to gardai, stating he assaulted her and he imposed an eight year sentence on the accused.
However some eight months later, Mr Kelleher successfully appealed his conviction to the Court of Appeal which said it was not satisfied that he had received a fair trial and directed that he be retried on the single charge of assault causing harm to his wife.