'It was a freak moment' - Counsel
In his closing address to the jury, defence counsel, Mr Brendan Grehan SC (with Mr Keith O'Grady BL) said that the killing of Martin Kivlehan was a freak moment, "a moment of madness." He asked the jury of six men and five women where was the evidence implied in the prosecution theory that Keith Brady had intended to kill Mr Kivlehan.
In his final interview the accused had stated that to this day he didn't know why he did it.
"This is someone who cannot understand why he did what he did. He lost it and he lost it in circumstances where he perceived something was going wrong," he said.
Mr Grehan submitted that nothing nasty was being alleged against Mr Kivlehan. It was perhaps nothing more than the laying of a hand on the knee by a drunk man.
"That's the height of it," he said.
Advancing a case of provocation, Mr Grehan said the jury would have to think how the incident between Janice Brady and Mr Kivlehan affected the accused at the time. They had to take into account the accused's background , his circumstances and the peculiar relationship he had with his sister.
"Something major or gross didn't need to have happened," he said asking the jury to consider what was the effect of what the accused was witnessing had on his mind.
Someone with a background of drink and drugs perceive things completely different, he said. Mr Grehan said he had concerns about the last statement which Brady had given in Castlerea Prison. It contained a lot of detail but a lot of detail which the Gardaí had at the time, he said, adding that it was also not that different of an account from the fourth interview given at Sligo Garda Station.
"That account is the same as the fourth interview save for the fact that he says he stabbed Mr Kivlehan in the neck," said Mr Grehan. The accused had clearly alluded to the allegations in his last statement. He mentioned Mr Kivlehan saying he couldn't touch Janice.
"That has a context and it's in the fourth interview," he said.
Drink and drugs were a feature of the case and no one was doubting this. "We are not talking about capacity in terms of mental capacity but talking of capacity at the particular moment of when this event happened," he said.
It was obviously a case of no premeditation. "If anything it seems the opposite," he said. "They were sitting down listening to music and the accused was in his own world. A situation blows up. That's the nature of provocation and not being able to restrain yourself from acting in a controlled fashion."
It was true that the accused and his sister were homeless, inter dependent on each other, basically living off drink and drugs, stealing and begging for money.
Mr Grehan said the deceased clearly had a fondness for alcohol and he was in no position of course to defend himself. It was not the case that he brought this upon himself.
What was alleged against him was messy behaviour. It was no more than that.
"It's not an attack on Mr Kivlehan," said Mr Grehan. The accused had reacted in the way he did.
"All I ask is that you look at the accounts given by him. There is no other version," he told the jury.
The November interview, said Mr Grehan was 'odd.' "I willingly accept that," he said. The accused was denying stuff which he was seen on CCTV doing. However, it was clear in that interview, stressed Mr Grehan that he had wanted to tell the Gardaí something but that he couldn't. It was remarked that he couldn't look then in the eye. In a very humane gesture, Sgt Martin McHale gave him his number on a piece of paper. A month later he went to a prison officer and said he wanted to speak to this Garda.
"You are dealing with someone who, because of particular circumstances lost control," Mr Grehan told the jury in conclusion.