The jury in the Jobstown trial should not have been told that the offence before the court carries a penalty of up to life imprisonment, the judge has said.
Judge Melanie Greally has addressed the jury on a number of additional points following legal submissions made by barristers for the six accused in the wake of her original charge, which ended on Monday afternoon.
The jury of four women and seven men – one juror had to drop out of the case for personal reasons – deliberated on the charges for less than one hour on Monday, did not deliberate on Tuesday, and returned on Wednesday.
The jury has risen for the night and will resume its deliberations on Thursday.
The Solidarity TD Paul Murphy, of Kingswood Heights, Tallaght, is one of six men who have pleaded not guilty to the false imprisonment of former Labour party leader Joan Burton and her then assistant, Karen O'Connell, by restricting their personal liberty without their consent, on November 15th, 2014, at Fortunestown Road, Jobstown, Dublin. The alleged offences occurred during a protest against water charges.
The other accused are: Solidarity councillors Kieran Mahon, Bolbrook Grove, Tallaght, and Michael Murphy, Whitechurch Way, Ballyboden; Scott Masterson, Carrigmore Drive, Tallaght; Frank Donaghy, of Alpine Rise, Belgard Heights, Tallaght; and Michael Banks, Brookview Green, Tallaght.
Collective responsibility
The judge referred to the issue of the penalties the offences carried in her charge on Monday but returned to it today at the Circuit Criminal Court to say she had not intended to criticise any counsel. She said there was a collective responsibility to stop the issue of the penalties that went with charges before the courts being mentioned.
The matter had arisen in evidence as a result of matters that had been mentioned during the Garda interview of Mr Donaghy and the judge said she should have intervened to ensure the jury did not hear anything about possible sentences.
On Monday, she said the issue of sentence was a matter for her and the jury should not have regard to it in their deliberations.
She also mentioned to the jury that Paul Murphy was denying that there had been the total restraint of Ms Burton and Ms O’Connell and that his counsel on his behalf was saying that he took steps to end any such restraint.
She said he and Michael Murphy were saying the evidence in relation to their viewpoints, as shown on video, that they favoured a 4x4 carrying the women being “slow-marched” out of Jobstown, was not consistent with intending to bring about the total restraint of the two women.
The trial has seen video of a vote being taken as to whether the vehicle containing the women should continue to be slow-marched down Fortunestown Road, or should be stopped where it was. Both deputy Murphy and Cllr Murphy can be seen voting in favour of the former.
Egress
The judge also said that she had mentioned two potential reasonable methods of “egress” to the jury on Monday.
If there is a reasonable method of leaving available, then an alleged restraint is not total and the charge of false imprisonment does not apply.
On Monday, the judge mentioned two possibilities that the jury might consider; the two women could have got out of a Garda Avensis, which was surrounded by protesters, and walked away; or the 4x4 to which they were subsequently transferred, could have reversed out of the Fortunestown Road.
Today she said it was open to the jury to consider a third route, being progress on down the Fortunestown Road, even though there was “chaos and certain acts of violence” there. It was open to the jury to decide that such egress, slow as it was, was reasonable egress.
The judge also mentioned evidence by certain garda witnesses which had been contradicted by video evidence and said it was up to the jury to assess whether this was relevant to the issue of credibility and to the claim on behalf of Paul Murphy that the gardaí had “an agenda”.
The principle evidence in the case, she said, was the video evidence, as it was not subject to the “frailties of human memory”. However, it was possible certain events were not captured on video.
She said that the view expressed on behalf of Mr Banks, that any times when there had been total restraint had come about due to the totality of the circumstances, and not his actions, was something that could logically be extended to the other accused.
The judge also said that it had been argued on behalf of Paul Murphy that if the women had been totally restrained when inside the Avensis, that was due to the decision taken by the gardaí to keep them in the car.
She said that none of the accused had given evidence in the case, and that was their right and no inferences should be drawn from it. The jury resumed deliberations just before lunch.
